It's all about the electoral votesPosted Wednesday, October 22, 2008, at 10:26 AM
With all the rhetoric leading up to this fall's presidential election, the funny thing is, the popular vote actually means nothing in November.
Five times in U.S. history, the candidate that won the popular vote did not win the presidency.
The reason is that at no time in U.S. history has the general voting public ever actually cast a ballot directly for president. It's the electoral college that elects presidents. In fact, on ballots in Idaho, you technically cast a vote for the elector pledged to vote for your candidate, rather than the candidate himself.
For those of you who've forgotten your high school government classes, each state has a number of votes in the electoral college equal to their representation in Congress (their two senators and their congressmen). Today, that means 270 electoral votes are required to win the election (535 congressmen and senators from the states -- territories and commonwealths don't count -- plus three delegates from the district of Columbia, equal the total electoral votes available, and you have to have a majority to win the election outright). Separate ballots (today) are cast for president and vice president by each elector.
If a candidate in November were to win the 11 states with the most electoral votes, they could ignore the other 39 states (and D.C.) and still win the election.
The top 11 states, with their electoral votes, are: California (55); Texas (34); New York (31); Florida (27); Illinois (21); Pennsylvania (21); Ohio (20); Michigan (17); Georgia (15); New Jersey (15); and North Carolina (15). That adds up to 271 electoral votes.
The electoral college is a wonderful anachronism left over from the early days of the Constitution, when the founding fathers, fearful of populism, created a system of government designed to dampen the emotions of the mob and give states a major role. With the 10th Amendment having virtually passed into history, the electoral college (it's not actually called that in the Constitution), is one of the last vestiges left of state's rights.
The Constitution (Article II, Section 1), does not call for a "winner-take-all" system. The apportionment of delegates to the electoral college is left up to the states. Beginning in the early 19th century and continuing through the mid-20th century, states began setting, as part of their state law, the winner-take-all criteria. Today, 48 of the 50 states and the District of Columbia (which was given electoral college representation with adoption of the 23rd Amendment) use the winner-take-all system. Only Nebraska and Maine, which use a complicated allocation system based on winning in congressional districts, allocate electoral college delegates proportionately.
Despite state laws, the U.S. Constitution does not require that electoral college "electors" cast their ballots for whomever the state votes for. And it's happened more than once that an elector broke ranks and voted for someone else. In fact, it happened several times prior to 1836 (when state laws weren't so firm), rarely between then and 1955, but numerous times since the 1956 election (when almost all states were "winner take all").
For example, in 1976, an elector from Washington, a state that voted for Gerald Ford for president, cast his ballot for Ronald Reagan, who wasn't even on the ballot that year.
And in 1988, a West Virginia elector voted for Lloyd Bentsen for president and Micheal Dukakis for vice president. Dukakis had been the Democratic presidential nominee against George H. Bush in that election and Bentsen had been his VP running mate (it wasn't a mistake, the elector did it deliberately).
In 2004, a Minnesota elector voted for John Edwards for both president and vice president, giving him 1 electoral vote for president and 252 electoral votes for vice president (Edwards was John Kerry's VP running mate).
* * *
Of the 17 Amendments to the Constitution that have been approved after the Bill of Rights, ten of them have involved directly or indirectly the presidential election process, either through the enfranchisement of citizens (the 14th and 19th for example), or the conditions or terms of office for the presidency and/or its succession.
Under the original Constitution, there was no separate ballot for vice president.
Before the ratification of the 12th Amendment in 1804, when an elector cast his ballot he listed his top two choices for president. The choices weren't ranked as "first choice" or "second choice" and no mention of vice president was made on the ballot. One list was then drawn up that included both names from every elector's ballot. The person with the majority of votes from the total number of electors (not the majority of the total number of electoral votes) was named president. The person with the next highest number of votes was named vice president.
That early selection of vice president from the president's main opponent probably went a long way toward creating the tradition of giving the vice president nothing to do in the White House.
Although in the first two elections George Washington functionally did not have any real opposition ("first in war, first in peace and first in the hearts of his countrymen"), by no means did he win all the electoral votes.
In 1788, Washington received 69 electoral votes to John Adams' 34. Ten other candidates received a total of 35 electoral votes and 44 electoral votes were not cast.
In 1792, Washington received 132 electoral votes to Adams' 77, with three other candidates receiving 55 votes (George Clinton, 50; Thomas Jefferson, 4; Aaron Burr, 1, and four votes not cast).
But in both of those elections Washington was named on every elector's ballot (as either first or second choice).
In the 1796 election, the first to be truly contested, Federalist John Adams beat Democrat-Republican Thomas Jefferson by a slim three-vote margin (with 11 other candidates receiving votes, including two for George Washington who had opted not to run for a third term and wasn't on any ballot).
* * *
The founding fathers did not actually foresee the rise of political parties, believing the election of president should be about the man, rather than a party.
That process worked well while Washington was running, but quickly devolved into factional party squabbles after that. In some ways, the "will of the people" quickly became secondary to the "will of those in power." In fact, popular vote totals weren't even officially kept until 1824 and in many states early on the legislatures determined the electoral college delegates, not the voters (although the legislative delegates usually voted the way their constituents had voted).
After Washington's presidency, multiple political parties were common in the early 19th century (rather than the essentially two parties we have today). Five, six or seven parties might have candidates winning electoral votes.
That could cause some problems -- and it did in 1800 and 1824, which requires a quick review of the process.
Under the Constitution, the electors who cast votes in the electoral college must meet at a place designated by their states (usually the state capital) on the first Monday after the second Wednesday in December (which is Dec. 15, this year). There they cast their ballots for president, which are then forwarded to the vice president of the United States (by law they must be received this year by Dec. 24), and formally opened and counted by the House of Representatives at 1 p.m. on Jan. 6.
If no candidate for president has received a majority of electoral votes the House then votes to select the president, from the three candidates who received the most electoral votes, with each state getting one vote.
In the election of 1800, the flaws of the original system of each elector voting for two candidates quickly became apparent.
Thomas Jefferson and Aaron Burr were running on the Federalist Party ticket, with Jefferson as the "presidential" candidate and Burr as the "vice presidential" candidate. But under the rules of the electoral college at that time if "their" delegates voted for both, it would mean a tie, so one delegate was allocated to vote for only one candidate, Jefferson, and leave Burr off his ballot. But that delegate forgot to do so, and as a result, both Jefferson and Burr wound up with 73 electoral votes.
The election therefore went to the House of Representatives to decide. But with the "back-room" backing of some of the southern states, Burr refused to step aside. The election was deadlocked for six days and 36 ballots before Jefferson was elected after Alexander Hamilton, who detested both men but especially Burr, intervened on Jefferson's behalf, using his influence to swing the election to Jefferson.
Hamilton's actions were one of the factors that eventually led to his duel with Burr in 1804 (which resulted in Hamilton's death), the same year the 12th Amendment was approved to solve the original two-candidates-per-delegate problem.
Burr served one term as vice president, but somewhat understandably was replaced by Jefferson with George Clinton on the ticket for Jefferson's second term.
In 1824, even with the 12th Amendment, it happened again.
Andrew Jackson handily won the popular vote in that election but got less then 50 percent of the electoral votes. He originally received 99 electoral votes to John Quincy Adams' 84 (J.Q Adams was the son of the second president), with William Harris Crawford receiving 41 and Henry Clay 37.
When the House voted, 13 state delegations voted for Adams, seven voted for Jackson and three voted for Crawford.
Adams, the sixth president, thus became the second -- and last -- president selected by the House of Representatives.
According to the Constitution, the Senate, however, selects the vice president from the top two candidates if neither candidate wins a majority in the electoral college. That happened once, in the presidential election of 1836, when Martin Van Buren's running mate, Richard M. Johnson, fell one vote short of a majority in the electoral college. Vice-presidential candidates Francis Granger and Johnson had a "run-off" in the Senate under the terms of the 12th Amendment, where Johnson was elected, 33 votes to 17 (each senator gets one vote).
There also have been a number of cases where electoral college votes were disputed.
In the election of 1872, by resolution of the House, the only three votes cast for Horace Greeley, who was one of five candidates receiving electoral votes in the landslide election of Ulysses S. Grant, were not counted, and in 1876, the electoral votes of four states were disputed. Congress referred the matter to an Electoral Commission, which gave the decision to Rutherford B. Hayes over Samuel J. Tilden, 185-184.
And of course, in 2000, the determination of who "won" the Florida vote and would receive its crucial and election-deciding 27 electoral votes, was determined by the United States Supreme Court, with George W. Bush winning in the electoral college over Al Gore 271-266 (that election was one of the five where the man who won the presidency had not won a majority of the overall popular vote).
* * *
(For specific details on the actual selection process, refer to" Article II, Section 1 of the U.S. Constitution, the 12th Amendment to the Constitution, and Title 3 of the U.S. Code, Section 15, which covers most of the bases at the national level; and each state's Secretary of State's office for delegate selection at the state level.)
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