The Electoral College

The Electoral College

An Overview
Updated October 27, 2004

The electoral college is established by the U.S. Constitution and modified by the 12^th and 23^rd Amendments. It includes a total of 538 members: one for each Senator and Representative, and three additional electors representing the District of Columbia. Each state has a number of electoral votes equal to the combined total of its Congressional delegation. The following is a summary of how the Electoral College process will work in 2004:

November 2, 2004 - General Election. The voters in each state choose their electors.

December 13, 2004 - Meeting of the Electors. The electors in each state cast their votes on "Certificates of Vote," sign the certificates, and forward them to the President of the Senate, the Archivist of the United States, and other federal and state officials. December 27, 2004 is the deadline for receipt of the Certificates of Vote.

December 22, 2004 - Deadline for reciept of electoral votes by the National Archives and Records Commision.

January 6, 2005 - Counting of Electoral Votes: Congress meets in a joint session to count the electoral votes. Any member of Congress may challenge any electoral vote. If this occurs, the House and Senate must vote on whether to accept or reject the vote. A simple majority vote of both chambers is required to reject an electoral vote.

Nomination of Electors

The U.S. Constitution does not specify procedures for the nomination of candidates to the office of Presidential Elector. The two most common methods the states have adopted are nomination by state party convention and by state party committee. Generally, the parties select members known for their loyalty and service to the party, such as party leaders, state and local elected officials and party activists. In some states, the electors names appear on the ballot along with the names of the candidates for president and vice president. In other states, electors' names are not printed on the ballot.

Selection of Electors by Voters

In 48 states and the District of Columbia, all electoral votes are awarded to the slate that receives the most popular votes in the state. This is known as the winner-take-all system. Maine and Nebraska are currently the only states that do not use a winner-take-all system. In those states, one electoral vote is awarded to the presidential candidates receiving the most votes in each of the congressional districts, and the remaining two electoral votes are awarded to the candidates receiving the most votes statewide. This is known as the district system. In 2001 and 2002, 27 states considered proposals to switch to the district system; none passed. In 2004, Colorado voters will consider an initiative proposal that would allocate that state's electoral votes proportionally according to the popular vote. If Amendment 36 is adopted, it will take effect immediatly and the 2004 presidential electoral votes will be allocated proportionally in Colorado.

"Faithless Electors"

There is no federal law requiring electors to vote as they have pledged, and over the years a number of electors have voted against the instructions of the voters. 29 states and the District of Columbia have laws binding electors to the popular vote winners, but most constitutional scholars believe that electors remain free agents and that such laws would not survive constitutional challenge. The states with laws seeking to bind electors to the popular vote winners are:

States with "Faithless Elector" Laws

Alabama (Code of Ala. §17-19-2)
Alaska (Alaska Stat. §15.30.090)
California (Election Code §6906)
Colorado (CRS §1-4-304)
Connecticut (Conn. Gen. Stat. §9-176)
Delaware (15 Del C §4303)
District of Columbia (§1-1312(g))
Florida (Fla. Stat. §103.021(1))
Hawaii (HRS §14-28)
Maine (21-A MRS §805)
Maryland (Md Ann Code art 33, §8-505)
Massachusetts (MGL, ch. 53, §8)
Michigan (MCL §168.47)
Mississippi (Miss Code Ann §23-15-785)
Montana (MCA §13-25-104)

Nebraska (§32-714)
Nevada (NRS §298.050)
New Mexico (NM Stat Ann §1-15-9)
North Carolina (NC Gen Stat §163-212)
Ohio (ORC Ann §3505.40)
Oklahoma (26 Okl St §10-102)
Oregon (ORS §248.355)
South Carolina (SC Code Ann §7-19-80)
Tennessee (Tenn Code Ann §2-15-104(c))
Utah (Utah Code Ann §20A-13-304)
Vermont (17 VSA §2732)
Virginia (§24.2-203)
Washington (RCW §29.71.020)
Wisconsin (Wis Stat §7.75)
Wyoming (Wyo Stat §22-19-108)

Most of the state laws referenced above state that an elector shall cast his vote for the candidates who won a majority of the popular vote in the state, or for the candidate of the party that nominated the elector. However, several state laws go further. In New Mexico, it is a 4^th degree felony for an elector to vote for a candidate other than the one that received the highest number of votes in the state. If an elector violates his oath to vote for his party's candidates, it constitutes a misdemeanor and he can be fined up to $1,000. In North Carolina, the fine was $500 until in 2001, when it was increased to $10,000. In Michigan, North Carolina and Utah, failure to vote for the candidates of the party which nominated the elector constitutes resignation from the office of elector, the elector's vote is not recorded, and the remaining electors must fill the vacancy.

When the Election Results are Delayed

Three states have recently passed laws allowing the state legislature to appoint presidential electors in the event that they are not appointed by the deadline prescribed by federal law. Those states are North Carolina, Texas and Wyoming.

Abolishing the Electoral College

Abolishing the Electoral College requires an amendment to the US Constitution. There are two ways to do that:

(1) Congress can propose an amendment by a two-thirds vote of both chambers. The amendment then has to be ratified by the Legislatures of three-fourths of the states. All existing amendments to the Constitution were made in this manner.

(2) The Legislatures of two-thirds of the states can petition Congress to convene a Constitutional Convention. At a Constitutional Convention, any part of the Constitution could be amended; action is not restricted to the sections governing the Electoral College or any other part of the Constitution. Again, any proposed amendment would have to be ratified by three-fourths of the states. This method has never been invoked.

Other Sources of Information

National Archives and Records Administration

Election Assistance Commission

President Elect

When No Minority Rules

Contacts for More Information

Jennie Drage Bowser or Tim Storey elections-info@ncsl.org.