UNM Electoral College

A study on the electoral college in New Mexico

Electoral College Basics by Jim Noel

Posted by Brianna Montoya-Harris on September 22, 2011

Electoral College Basics

The Intent of the Founding Fathers & How the EC works

US Constitution and Federal Law

  • Art. II:

    • The executive Power shall be vested in a President of the United States of America. He shall hold Office during the Term of four years, and, together with the Vice President, chosen for the same Term, be elected as follows:

    • Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in Congress…”

  • 12th Amendment:

    • The Electors shall meet in their respective states, and vote by ballot for President and Vice-president, one of whom, at least shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President…and [shall] transmit sealed to the seat of the government of the United States, directed to the President of the Senate.”

  • Elector Election Day:

    • The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President. USC, Title 3, Chapter 1, Section 1.

  • Election of the President

    • The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such state shall direct.” USC Title 3, Chapter 1, Section 7

    • This statute was enacted in 1934 after the 20th Amendment changed the date for the presidential inauguration from March 4 to January 20.

  • Under the Constitution, the people have the right to vote for:

    • US Representatives

    • And in 1913, with the 17th Amendment, US Senators (who had been previously elected by state legislatures pursuant to the US Constitution)

  • We have NO federal constitutional right to vote for President or Vice President….

OR

  • To vote for presidential electors (See above).

  • As the US Supreme Court observed in 1892:

    • The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors.”

McPherson v. Blacker, 146 U.S. 1 at 27, 1892.

  • In 2000, the US Supreme Court reiterated this principle:

    • The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.” Bush v. Gore, 531 U.S. 98, 2000

  • There is only one state where the right of the people to vote for presidential electors is guaranteed by a state constitution – Colorado

    • The general assembly shall provide that after the year eighteen hundred and seventy-six the electors of the electoral college shall be chosen by direct vote of the people.”

How Many Electors?

  • EC representation is equal to Congressional representation.

  • Each state is guaranteed at least 3 electoral votes: 2 for Senate, 1 for House.

  • Each Census, Congress adjusts congressional representation.

  • This does not account for population shifts in between (1990 estimates were used for every election until 2004)

  • Thus, the EC always over/under represents some states

    • Example: CA population in 1988 translated to 54 EC votes, but it only received 47

Who Nominates the Electors?

  • The most common procedures is state conventions of political parties

  • Second most common is the state’s central committee making the nominations

  • Most unusual: Pennsylvania, which authorizes each party’s presidential nominee to select electors on its behalf

Who are the Electors?

  • Cannot be members of Congress or federal officials.

  • Were intended to be distinguished citizens

  • As early as 1826, electors recognized as party loyalists, large donors (not necessarily what was intended).

    • Example: best selling author James Michener.

Who Elects the Electors?

  • Generally speaking, up until the middle of the 20th Century, electors appeared on the ballot rather than the candidates for President and Vice-President.

    • Un-pledged Presidential Electors

      • 1960, Kennedy-Nixon, Alabama

  • Rise of the “short ballot.”

How do We Elect Electors?

  • When we vote for a presidential candidate, we are actually voting for an elector.

  • Many ballots omit the phrase “Presidential electors for [candidate].”

  • Thus, many voters are unaware they are not actually voting for a presidential candidate.

  • For most current ballots, voters chose one entire elector slate as a unit.

How do States Allocate their EC Votes?

  • Since the mid 19th century, states have almost exclusively used the winner-take-all method

  • The candidate with the most votes receives all the state’s EC votes

  • Historically, district division of EC votes was common until 1836

  • Maine (1969) and Nebraska (1992) allocate EC votes by congressional district

When do Electors Cast their Vote?

  • In Mid-December

    • On a specified day every 4th year, a group of electors meets in the state capital to vote for president (on the “first Monday after the second Wednesday in December next following their appointment…”)

How are Electoral Votes Counted?

  • Who does it?

    • The President of the Senate (12th amendment)

  • When is it done?

    • January 6

Are Electors Bound?

  • Mostly not

  • 26 states attempt to bind electors

  • New Mexico requires an oath or pledge under penalty of law; 4th degree felony for an elector to vote for a candidate other than the one that received the highest number of votes in the state

What are Faithless Electors?

  • When electors break their pledges or violate public expectations, they are referred to as “faithless”

  • Defections have never changes an electoral outcome, although they have occurred many times

  • Nixon is the only person in U.S. history to suffer electoral defections on 3 occasions (1960, 1968, 1972)

Summary

  • Constitutional and legal structure

  • The mechanics of how it works

  • The intentions of the founding fathers

  • The Results:

    • An intentionally indirect method for electing the only national office in the United States.

    • The mechanism for which was intentionally left to the states.

The Electoral College Today

  • The original US Constitution did not specify in detail the manner of electing the President and Vice-President.

  • The flexibility built into the constitution permitted the development of a system that is today very different from the one that the Founding Fathers had envisioned.

  • This built-in flexibility of the original US Constitution remains today, and honors the idea of State sovereignty and authority to implement how its citizens will elect the President.

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