Channel 1 Los Angeles
12/14/2020
Opinion fragment: Thomas Neale, Specialist in American National Government at the Congressional Research Service of the Library of Congress(CRS).
Let’s just review how the Electoral College works. When Americans go to the polls they vote by whatever system they have in their particular state, county, whatever, for electors for president. Now, some places you don’t even see the name of – name – word “electors” or the names of – certainly not the names of the electors. But they’re actually voting for people other than the candidates for president and vice president, and that’s part of the peculiar distinction of the system.
Now, how does it work? Well, each state is allocated a certain number of electors and these are signed according to the combined total of their Senate, U.S. Senate and U.S. Representatives in Congress in the House of Representatives. So that gives us a total of 535 – 538 electors, that’s one for every senator, one for every representative, plus three for Washington, D.C., the District of Columbia, the national capital. Now that does not mean that the electors are members of Congress. It’s an entirely different office. It is a federal elected office, and the qualifications for that office are only that you cannot be a – hold an office of what we say trust or profit, under the United States, in order to be an elector, and that includes Jean or myself. Nobody who is a federal civil servant or an elected official can be an elector.
So the combination of the allocation of electors is such that obviously the states with large populations have more electoral votes and therefore more influence in the outcome of the election. In the giant – the Jupiter, the giant among states of course is California, which has 55 electoral votes. That’s the largest. Some of the big – other big states are, for instance, Texas is 38 and Florida 29, New York 29, Pennsylvania 20, and so on. Down the list we get to the least populous states such as Alaska and Wyoming, Vermont, Delaware, and they only have three electoral votes because they have one member in the House of Representatives and two senators – one plus two equals three. And then Washington, D.C. as a – did not vote at all in presidential elections until 1964 when the Constitution was amended to provide for the District of Columbia, the national capital voting for electors.
So we have, as I say, a total of 538. A majority, a real majority of 270 electoral votes is required to elect a president and vice president. Now, the – another peculiar part of this system or a part of the system that is unusual is that the states have the authority to allocate the electoral votes any way they see fit. Now, most states, nearly all states allocate their electoral votes on a first-past-the-post or a winner-take-all system, which means therefore that the number of electoral votes – all the electoral votes in the state are awarded to the candidates for president and vice president who won the most electoral votes in that state. So there’s not a proportional award of electoral votes within the state, but that is not to say the states couldn’t do that if they wanted do, because it is – it’s authority left to the states. There are two states that use different methods. The – Maine and Nebraska award their electoral votes on their electors on the basis of who won the statewide vote and who won the vote in their congressional districts. So that’s a slight variation on a theme, and it gives you an idea of the diversity involved in this system.
Now, the question is – next arises, well why – what is the history of this? Why do we have the Electoral College system? My first answer is that at the U.S. Constitutional Convention in 1787, there was a great divergence of opinion on how the president should be elected. Now almost everybody was concerned that the president should have independent authority and be one of the pillars of our system of separation of powers and checks and balances. However, they couldn’t decide how this chief executive, powerful chief executive could be elected. And then there was a great deal of discussion during the convention – state legislatures, election by Congress – and they were unable to make a decision.
Quite late in the convention they needed to get on and have finished and present it to the states, and it was suggested by a committee meeting behind closed doors that we should have an Electoral College because that would involve – leave the states in charge of determining how the electors were chosen. So if the state wanted to choose the electors through its own state legislature, that’s fine. They wanted to allow the electors to be chosen by popular vote, that’s also fine. Now in time, the popular vote option prevailed as during the 19th century the United States became more and more democratic and the power of the vote was extended to more and more people, although obviously not to people of color until after the Civil War, and even then.
So what you have now is that all of the electors are chosen by the people. Now, obviously this system has endured for 231 years since 1789, and again the question is raised: Why has it not been changed? Because it is certainly at variance with what we regard as general popular election of heads of state, particularly in states that have what I would call a presidential republic, in which the president is both chief of state and head of government and exercises broad authority. The most important reason, I think, is because it has tended to work reasonably well, at least until recent years. It has, on almost all occasions, delivered the – a majority of electoral votes to the candidates who won the popular vote, not necessarily a majority – it’s not like France – 42, 43 percent, as long as you have a majority of the Electoral College.
Another reason is that – so there hasn’t been an impetus to change. Maybe there will be as a result of the elections of 2000 and 2016 in which candidates won the electoral vote but did not win a plurality of the popular vote. Another reason is it’s very difficult to amend the U.S. Constitution, the most – the method by which all of our 27 amendments – and that small number of amendments gives you an idea of why it’s – of how – why it’s so difficult to amend the Constitution. It requires a proposal by Congress by a vote of two thirds of the members of both chambers of Congress, and then the proposed amendment is sent to the states, and there’s an even higher hurdle there. A two-thirds majority of – excuse me, three-fourths majority of the states must ratify any proposed amendment, and that usually within a set limit of seven years. So that’s 38 states. And that gives you an idea.
We did have a good deal of serious interest in Congress in 1950s and ‘60s in establishing a direct popular election system under one or more different variations. Those came close. They were – one was proposed in the House but not in the Senate, and another time it came close in the Senate but the House did not vote on it. And essentially I think that proposals for reform failed largely because it was a high hurdle, and there was insufficient public interest in changing the system.
Now, I’ve been tracking this issue for many, many years, and after the election of 2000 I felt sure that there would be proposals to move to a simple democratic popular vote, like most republics. And – but there wasn’t. Congress did other things. They improved the election system but they did not address the question of amendment of the Constitution.
So that gives you an idea of how the Electoral College works. And what I’d like to do now for the balance of my formal presentation is just give you an idea and walk you through the road to Election Day. And first I’d like to point out that this is not just the election of the president and vice president. We are also in the United States going to be electing 35 senators, roughly one third of the Senate – as you know, senators serve six-year terms which are staggered. Every even-numbered year, one third of the senators are re-elected. Now, we have a couple of special elections this year, so that brings us to 35 rather than 33 or 34. All of the House of Representatives will be elected, too. Representatives serve a fairly short term, two years. The whole House is up for election every even-numbered year.
Now also, as you know, it’s a federal republic and there are different layers of government, and the states in their own sovereign way arrange their own affairs according to their preferences. We will have 13 governors of the states elected this year, although most governors are elected on the off year, which is the even-numbered year between presidential elections, i.e. 2018 or 2022. Also, most of our state legislators – now, recall that each state except one has – mimics the federal system in that it has a two-house bicameral state legislature of a senate and a lower house, go by various names – so the vast majority of those legislators will also be elected in 2020.
Now, voting around the country in states is not covered by a national statute with respect to how the polls are administered and what times the polls are open. In most states, it’s 6 – it’s generally 6 a.m. in the morning until 9 p.m. in the evening. And if you figure that the United States, between Hawaii and Maine, covers about six time zones, you can envision the fact that the polls in Hawaii are closing when it’s probably about three in the morning in Maine. So it’s a very broad continental vote.
Now, we have 255 million Americans who are eligible to vote this year. Most of them are registered; not all are registered. Registration’s become much easier in the past 20 years – in fact, some states do not require registration at all. You just walk to the polls, prove that you’re a resident, and you can vote.
Another important development – very important development; I can’t overemphasize this, in this election – is that the way people vote is – has evolved very quickly and with the potential for great impact on the election. Now on – in classic American history, everybody goes to the polls to vote. They go down to their – wherever the voting station is – the school, the union hall, the church, et cetera – they cast their votes there in person. This year we will have a huge change in that, two new methods – well, one new method and one expanded version of an old method.
The new method is early voting. And you’ve – I’m sure you’ve seen and read a lot about that in the American domestic media. And that is that people may either apply for a ballot from their local authority, their state authority, or they – in some cases, for instance, they’re sent out automatically. I’m a resident voter of the District of Columbia and our elections authority sent my ballot for early voting weeks ago. And what you can do if you’re a voter is you mark the ballot – and it’s all computer coded, barcoded and everything – and then you can take it to a designated drop-off place. And those are usually your public institutions like libraries, or the U.S. post office, or local government offices. You can drop it off there. So that means you can vote at your convenience well in advance of Election Day, which I failed to mention is on November 3rd, Tuesday after the first Monday in November, which is always federal Election Day.
The other increased use of a classic means of voting is absentee voting, which is now – we call voting by mail, for – from time immemorial, people who were unable to be in their home jurisdiction at election time could apply for an absentee ballot. That includes people who were on business or people who were in the civil – federal service away from home, or military, stationed outside the United States or away from home. That also has greatly expanded. And the – where there were in many states at one time fairly stringent requirements as to how you qualified for one of these absentee voting – or voting by mail, as we now call it – those have been loosened a lot. So anybody – in most states, almost anybody can apply for voting by mail, and no reason given other than their own convenience.
So the last projection I saw about the early voting and voting by mail is 50 million people have already voted, which is extraordinary. You may have as many – if you consider the fact that the experts are telling us we may have about 138 million popular votes cast in this election, the fact that 50 million of them have already been cast today on October 23rd – and that’s 11 days before the election – it really indicates a major change in the way we are – we do business with respect to the election system in the United States.
Now, continuing on the road to Election Day and beyond, presidential elections begin much earlier than the election year. President Trump, for instance, declared his intention to run for a second term the day he was inaugurated in 2017. And they begin to gear up a year or sometimes two years before, and the campaign – early campaigning is raising money, making appearances, doing as they call “listening tours.” The second part of the campaign involves the actual campaign to secure the nomination of the party. And that is through a series which you may be familiar with of state-run events, either primary elections – which are actually physical elections run by the state election authorities – or there are also caucuses, Iowa caucus being the most famous, where they’re more of an informal party-run gathering of members of the party to determine – all of which determine their delegates to the national convention, which nominates the presidential and vice presidential candidates and usually also proposes the party’s platform, which is a statement of principle and a statement of proposed policies that the parties in most cases will submit as part of their solicitation for popular votes in the election.
National conventions – the primaries generally are done by June. National conventions are normally – in a normal year, and we all know this is the least normal year that any of us can remember, I think – they – the conventions are held in July and August. And if you’ve covered the conventions before, either remotely or you’ve been there, you know they’re like a huge American carnival (inaudible). Not this year, to a much less extent.
So then we proceed to the general election campaign, which runs basically from August through Election Day. That has changed a great deal. There’s considerable emphasis placed on election – excuse me, on the debates. We saw the last debate last night. As you know, one was cancelled. The first one and the vice presidential debates both came off with various comments and criticisms that I’m sure you are familiar with.
The strategies are focused to considerable extent on the – of course, on winning enough states and enough under – states under their winner-take-all provision for electoral votes to gain the 270 votes in the Electoral College. And the general strategy for achieving that is to go to what we call the battleground states, the battleground states sometimes called “swing states.” And these are states which generally have a significant number of electors – 10 or more, 15 or more – but the other important part of that is that these are states which are capable of changing their vote from election to election. In other words, they’re not strongly – so strongly affiliated with one party that they could not possibly vote for the other.
Now, some of the – perhaps the most populous and probably the most important swing state at the point of this election is Florida, which as I say has 29 electoral votes. It’s a huge block of votes. And it is a state that has swung both ways in the past, and it is a state where both the Trump campaign and the Biden campaign are spending a tremendous amount of resources, time, money, candidate appearances, surrogate candidate appearances. A state – and other states, for instance, Pennsylvania, which President Trump took in 2016, is up – as they say, is up for grabs, and both parties are devoting a great deal of resources to it.
Some big states are not battleground states. California is a blue state. It’s, as we say, a blue state; it votes Democratic. A red state votes reliably Republican. California has always, at least in my recent years, in the past 30 – 20 to 30 years, California has been reliably Democratic, so we don’t consider that a battleground state. Up till now, Texas has not been considered a battleground state because it has voted reliably Republican for at least the past 20 to 30 years. That may be changing. And states that are moving from one to another – red states that may because of differences in political viewpoint, sociological differences, differences in the ethnic composition of their populations, may move from one column to the other. Those that are in the process of moving or may be moving, we call those purple states. Red and blue equals purple, as you know. So this is another important element in the campaigns.
Finally, Election Day and beyond. As I said, November 3rd is Election Day, and all 538 electors will be, we hope, chosen in due – in good time during that period. This year, because of the contentiousness of the election, it is likely that the results in the various states and also the fact that we have so many early – so much early voting and so much absentee voting, voting by mail, it may take longer for the states to count.
States have until December 14th to count and ascertain their votes. That is the date on which the electors meet. The Electoral College is – those 538 individuals will meet separately in their states. They do not meet jointly. The reason for that was the founding fathers were afraid that if they got together, they would engage in political maneuvers. So they meet in their states. Usually it’s in the state capital and sometimes it’s a big ceremony. The electors make – mark their votes on the ballots, and the ballots and the official popular vote results are all sealed up and sent to Washington and various other places, officials, where they are kept as a source of record.
And then on January 6th of next year, the Congress meets. The new Congress, the 117th Congress, the one that will be elected on November 3rd, will meet in what we call a joint session, just the same idea as the president’s State of the Union message. They will all meet. Five hundred thirty-eight of them meet in the House of Representatives chamber and the votes, the results from the states, the electoral vote results in the states will be opened and counted, and then the winners will be declared. And here is an interesting point on that is that the vice president of the United States, as you may know, has – also has the – holds the position of president of the Senate. So the vice president gets to preside over the electoral vote count session and the vice president declares who the winner will be.
So in this case, as has happened frequently in the past, Vice President Pence will be in the position of either declaring himself re-elected as vice president and President Trump re-elected as president, or, to the contrary, it will be his duty to declare that he has been defeated for re-election and so has the president, President Trump. So that’s kind of the icing on the cake. Look back at Al Gore, who you may remember was vice president in the year 2000, extremely contentious election, and he had the good grace to preside with dignity at the electoral vote count session.
And finally, then we move on two weeks later to January 20th. At noon on January 20th, the terms of office of the outgoing president and vice president expire and the new ones begin at roughly noon, and we see the process come to its full circle to the beginning of a new four-year administration.
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