The U.S. president is not elected by a majority of the popular vote.
Wait a minute, say that again?
You heard me. Under the Constitution, the candidate who wins the majority of 538 electors, known as the Electoral College, becomes the next president.
The candidate who wins a state’s popular vote typically earns the support of that state’s electors, who are chosen by state legislatures. Each state is allocated a different number of electors based on census results.
Winning 270 electoral votes or more puts you in the White House. And because some states carry more electors than others, it is possible — and perfectly legitimate — for a candidate to lose the popular vote but win the election. That’s why presidential candidates typically focus on winning states like Texas (38), Florida (29) and New York (29) as opposed to Vermont, Wyoming or Alaska, which all have just three electoral votes. Winning three states can mean 96 electoral votes or just nine.
Electors are “pledged” to a presidential ticket based on the results of the popular vote in each state or district. In most cases, all of a state’s electors go to the candidate who gets the most votes in the state; Maine and Nebraska also use the results at the district level to allocate a share of their votes.
But, yet, it’s not that straightforward. “Faithless electors” can still cast their vote against the candidate that they are pledged to vote for. Seven such “faithless electors” actually voted in 2016 for someone other than the candidate to whom they were pledged: two in Trump’s column and five in Clinton’s.
The rules, you see, are enshrined in the U.S. constitution. But so, too, is the power the states have to decide amongst themselves how to follow them.
That sounds like a potential can of worms, especially with the U.S. as divided as it currently is?
You could be onto something.
As mentioned earlier, the candidate who wins each state’s popular vote gets that state’s electors. Typically, governors, in advance, have certified the results in their respective states and shared the information with Congress.
But some academics have outlined a scenario in which the governor and the legislature in a closely contested state submit two different election results. For example, battleground states like Pennsylvania, Michigan, Wisconsin and North Carolina all have Democratic governors and Republican-controlled legislatures.
According to legal experts, it is unclear in this scenario whether Congress should accept the governor’s electoral slate or not count the state’s electoral votes at all. And while most experts view the scenario as unlikely, there is historical precedent.
The Republican-controlled Florida legislature considered submitting its own electors in 2000 before the Supreme Court ended the contest between Bush and Al Gore. In 1876, three states appointed “duelling electors,” prompting Congress to pass the Electoral Count Act (ECA) in 1887.
Under the act, each chamber of Congress would separately decide which slate of “duelling electors” to accept. As of now, Republicans hold the Senate while Democrats control the House of Representatives, but the electoral count is conducted by the new Congress, which will be sworn in on Jan. 3.
If the two chambers disagree, it’s not entirely clear what would happen. The act says that the electors approved by each state’s “executive” should prevail. Many scholars interpret that as a state’s governor, but others reject that argument.
The law has never been tested or interpreted by the courts.
Ned Foley, a law professor at Ohio State University, called the ECA’s wording “virtually impenetrable” in a 2019 paper exploring the possibility of an Electoral College dispute.
My head is kinda spinning. Is there anything else that could throw a spanner in the works?
Well, yes, now that you ask.
It’s unlikely, but another possibility is that Trump’s Vice President Mike Pence, in his role as Senate president, could try to throw out a state’s disputed electoral votes entirely if the two chambers cannot agree, according to Foley’s analysis.
In that case, the Electoral College Act does not make clear whether a candidate would still need 270 votes, a majority of the total, or could prevail with a majority of the remaining electoral votes — for example, 260 of the 518 votes that would be left if Pennsylvania’s electors were invalidated.
“It is fair to say that none of these laws has been stress-tested before,” Benjamin Ginsberg, a lawyer who represented the Bush campaign during the 2000 dispute, told reporters in a conference call on Oct. 20.
The parties could ask the Supreme Court to resolve any congressional stalemate, but it’s not certain the court would be willing to adjudicate how Congress should count electoral votes.
And what if it was found that neither candidate has secured a majority of electoral votes?
This scenario would trigger a “contingent election” under the 12th Amendment of the Constitution. That means the House of Representatives chooses the next president, while the Senate selects the vice president.
Each state delegation in the House gets a single vote. As of now, Republicans control 26 of the 50 state delegations, while Democrats have 22; one is split evenly and another has seven Democrats, six Republicans and a Libertarian.
A contingent election also takes place in the event of a 269-269 tie after the election; there are several plausible paths to a deadlock in 2020.
Any election dispute in Congress would play out ahead of a strict deadline — Jan. 20, when the Constitution mandates that the term of the current president ends.
Under the Presidential Succession Act, if Congress still has not declared a presidential or vice presidential winner by then, the Speaker of the House would serve as acting president. Nancy Pelosi, a Democrat from California, is the current speaker.
This all sounds so complex. Is there an easier way?
Debate has long raged in the U.S. about this antiquated, and some would say skewed, system. Many would prefer a president elected by the popular vote, with 61 per cent of Americans saying in a 2020 Gallup poll they would like to abolish the electoral college altogether.
But John Fortier, director of government studies at the Bipartisan Policy Center in Washington and author of the 1983 book “After the People Vote: A Guide to the Electoral College,” said Americans have never felt strongly enough about the issue to do much about it.
“I do think the American people have almost always been against this, or at least if they thought they were starting from scratch, (they would) prefer a system that’s more of a national popular vote,” Fortier said. “It’s on people’s minds, but I don’t think it’s necessarily the highest thing, the thing that they most want to change.”
Barry Fadem is president of National Popular Vote, a non-profit association on a mission to make the results more reflective of the will of the people. National Popular Vote has come up with Interstate Compact, an agreement among states to allocate electoral college votes in accordance with the national popular vote.
“No offence (to Canada), but we consider (the U.S. election) the most important election in the world,” Fadem told the Canadian Press.
“Yet the rule that we are known for around the world — whoever gets the most votes at the end of the night is the winner — doesn’t apply to the most important election the world, and no justification can be made for it today.”
So far, 15 states and the District of Columbia have signed on to the compact, for a total of 196 electoral votes. Fadem said he believes they can get to 270 before the 2024 election.
With files from National Post Staff
Out of the last 45 contests, five have produced commanders-in-chief who did not win the majority of the popular vote, including George W. Bush in 2000. In 2016, Donald Trump lost the national popular vote to Democrat Hillary Clinton by 2.87 million votes, but secured 304 electoral votes to her 227.
Why are there 538 electors?
There is one for every seat in Congress — 100 senators and 435 representatives — plus three for the unrepresented District of Columbia.
Here, in descending order, is the number of electors pledged by each state:
29: Florida, New York
20: Illinois, Pennsylvania
16: Georgia, Michigan
15: North Carolina
14: New Jersey
11: Arizona, Indiana, Massachusetts, Tennessee
10: Maryland, Minnesota, Missouri, Wisconsin
9: Alabama, Colorado, South Carolina
8: Kentucky, Louisiana
7: Connecticut, Oklahoma, Oregon
6: Arkansas, Iowa, Kansas, Mississippi, Nevada, Utah
5: Nebraska, New Mexico, West Virginia
4: Hawaii, Idaho, Maine, New Hampshire, Rhode Island
3: Alaska, Delaware, D.C., Montana, North Dakota, South Dakota, Vermont, Wyoming
When does this voting take place?
While we’re all accustomed to finding out who won on election night, the president is not formally elected until the electors cast their votes. They always meet the Monday after the second Wednesday in December following the election. This year, the electors will meet on Dec. 14 to cast their votes. Both chambers of Congress will meet on Jan. 6 to count these votes and officially name the winner.