Order Code RL30804
CRS Report for Congress
Received through the CRS Web
The Electoral College: An Overview and Analysis
of Reform Proposals
January 16, 2001
L. Paige Whitaker
Legislative Attorney
American Law Division
Thomas H. Neale
Analyst in American National Government
Government & Finance Division
Congressional Research Service ˜ The Library of Congress
The Electoral College: An Overview and Analysis of Reform
Proposals
Summary
American voters elect the President and Vice President of the United States
indirectly, through an arrangement known as the electoral college system. The
electoral college system comprises a complex mosaic of constitutional provisions,
state and federal laws, and political party rules and practices.
Although the electoral college system has delivered uncontested results in 46 out
of 50 presidential elections since it assumed its present constitutional form in 1804,
it has been the subject of persistent criticism and frequent proposals for reform.
Reform advocates cite several problems with the current system, including: a close
or multi-candidate election can result in no electoral college majority, leading to a
contingent election in Congress; the current system can result in the election of a
President and Vice President who received more electoral votes, but fewer popular
votes, than their opponents; the formula for assignment of electoral votes is claimed
to provide an unfair advantage for less populous states and does not account for
population changes between censuses; and the winner-take-all system used by most
states does not recognize the proportional strength of the losing major party, minor
party, and independent candidates. On the other hand, defenders assert that the
electoral college system is an integral and vital component of federalism, that it has
a 92% record of non-controversial results, and that it promotes an ideologically and
geographically broad two-party system. They maintain that reform of the electoral
college system, rather than abolition, would eliminate any perceived defects while
retaining its overall strengths.
Proponents of presidential election reform generally advocate either completely
eliminating the electoral college system, replacing it with direct popular election, or
repairing perceived defects in the existing system. The direct election alternative
would replace the electoral college with a single, nationwide count of popular votes.
That is, the candidates winning a plurality of votes would be elected; most proposals
provide for a runoff election if no candidates received a minimum of 40% of the
popular vote. Electoral college reform proposals include: (1) the district plan,
awarding one electoral vote to the winning candidates in each congressional district,
with an additional two electoral votes assigned to each state regardless of population,
to the statewide vote winners; (2) the proportional plan, awarding electoral votes in
states in direct proportion to the popular vote gained in the state by each candidate;
and (3) the automatic plan, awarding each state’s electoral votes directly on a winner-
take-all basis to the statewide vote winners.
Following the closely contested presidential election of 2000, it is anticipated
that Congress may revisit the issue of electoral college reform. Although some
reforms could be effected through federal or state statutes, most would require
overcoming the considerable hurdles encountered by proposed constitutional
amendments: two-thirds approval by both houses of Congress, followed by
ratification by three-fourths (38) of the states, usually within a period of seven years.
This report will not track specific proposals in the 107th Congress, but it will be
updated as events warrant.
Contents
Introduction: The Electoral College System In Brief . . . . . . . . . . . . . . . . . . . . . 1
Origin of the Electoral College . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Electoral Vote Allocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
State and D.C. Appointment of Electors . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Appointment Date and Meeting Date of Electors . . . . . . . . . . . . . . . . . . . . 3
Counting and Certification of Electoral Votes . . . . . . . . . . . . . . . . . . . . . . 3
Contingent Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Electoral College Criticisms and Controversies . . . . . . . . . . . . . . . . . . . . . . . . . 4
Electoral College Deadlock: Contingent Election . . . . . . . . . . . . . . . . . . . . 4
The “Minority President” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Small State Advantage in the Electoral College . . . . . . . . . . . . . . . . . . . . . 6
Methods of Allocating Electoral Votes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The General Ticket or Winner-Take-All System . . . . . . . . . . . . . . . . . 7
The District System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Decennial Census Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Faithless Elector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Presidential Succession: Between Nomination and Inauguration . . . . . . . . 11
Independent and Third-Party vs. Major Party Candidates . . . . . . . . . . . . . 13
Electoral College Reform Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Direct Election Plan: Elimination of the Electoral College . . . . . . . . . 16
Electoral College Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The District Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The Proportional Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
The Automatic Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
The Electoral College: An Overview and
Analysis of Reform Proposals1
Introduction: The Electoral College System In Brief2
The President and the Vice President of the United States are elected indirectly
by an institution known as the electoral college. The U.S. Constitution, in Article II,
Section 1, Clause 2, as amended by the 12th Amendment, together with a series of
implementing federal statutes,3 provides the broad framework through which electors
are appointed and by which they cast votes for the President and Vice President.
Origin of the Electoral College
The method of electing the President and Vice President was the subject of
considerable discussion at the Constitutional Convention of 1787. While some
delegates favored direct election of the President, others opposed it on the grounds
that the people lacked sufficient knowledge of the character and qualifications of the
presidential and vice presidential candidates to make intelligent electoral decisions.
Moreover, the delegates were reluctant to set uniform national suffrage requirements
for federal elections, believing this to be a prerogative of the states. Finally, delegates
from less populous states feared that presidential elections might be dominated by a
few large states.4
The Convention settled on a compromise plan: the electoral college system.5 It
provides for the election of the President and Vice President by electors appointed by
each state in a manner determined by its legislature. The electors then meet in their
respective states to vote. While these provisions did not mandate popular
participation in the selection of electors, neither did they prohibit it. In fact, most
1 This Report updates and supersedes The Electoral College Method of Electing the
President and Vice President and Proposals for Reform, (CRS Rpt. 96-125), by Thomas M.
Durbin.
2 For further discussion of the operation of the electoral college, see The Electoral College:
How it Works in Contemporary Presidential Elections, (CRS Rpt. RS20273), by Thomas
H. Neale.
3 The implementing statutes are codified at 3 U.S.C. §§ 1-17.
4 CONGRESSIONAL QUARTERLY, INC., PRESIDENTIAL ELECTIONS SINCE 1789 1 (2d ed. 1980).
5 R. Gordon Hoxie, Alexander Hamilton and the Electoral System Revisited, 18 Presidential
Studies Q. 717-20 (1987)(arguing that the electoral college represented a compromise between
those advocating direct election of the President and those advocating that state or federal
representatives should elect the President).
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states moved to provide for direct popular choice of electors by the voters beginning
in the late 18th Century. Since 1836, all states except South Carolina, whose
legislature continued to select its electors until after the Civil War, had provided for
statewide popular election of electors.6
Electoral Vote Allocation
The total number of electors comprising the electoral college equals the total
combined congressional representation of each state (House plus Senate seats), plus
three electors representing the District of Columbia.7 After each decennial census, as
the states gain or lose population and, consequently, gain or lose Representatives in
the House, the number of electors assigned to each state may change to reflect the
new apportionment. Presently, 538 electors are apportioned to the states and the
District of Columbia based on: (1) 100 Senators; (2) 435 Representatives; and (3) 3
electors representing the District of Columbia. After the 2000 decennial census, the
50 states and the District of Columbia were entitled to the following numbers of
electors:
Alabama
9
Kentucky
8
North Dakota
3
Alaska
3
Louisiana
9
Ohio
20
Arizona
10
Maine
4
Oklahoma
7
Arkansas
6
Maryland
10
Oregon
7
California
55
Massachusetts
12
Pennsylvania
21
Colorado
9
Michigan
17
Rhode Island
4
Connecticut
7
Minnesota
10
South Carolina
8
Delaware
3
Mississippi
6
South Dakota
3
D.C.
3
Missouri
11
Tennessee
11
Florida
27
Montana
3
Texas
34
Georgia
15
Nebraska
5
Utah
5
Hawaii
4
Nevada
5
Vermont
3
Idaho
4
New Hampshire
4
Virginia
13
Illinois
21
New Jersey
15
Washington
11
Indiana
11
New Mexico
5
West Virginia
5
Iowa
7
New York
31
Wisconsin
10
Kansas
6
North Carolina
15
Wyoming
3
Total: 538 electoral college votes; 270 constituting a majority. These totals will be in effect for the
2004 and 2008 presidential elections.)
State and D.C. Appointment of Electors
Under Article II, Section 1, Clause 2 of the Constitution, as amended by the 12th
Amendment in 1804, each state is required to appoint electors in the manner directed
by its state legislature. In 1961, the 23rd Amendment provided for three electors
from the District of Columbia. The Commonwealth of Puerto Rico, Guam, the U.S.
6 CONGRESSIONAL QUARTERLY, INC., GUIDE TO U.S. ELECTIONS 206 (1976).
7 U.S. CONST. amend. XXIII.
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Virgin Islands, and American Samoa are not constitutionally entitled to electors, as
they are not states.
Appointment Date and Meeting Date of Electors
Article II provides that Congress may determine the date for selecting electors
and mandates that the date chosen be uniform throughout the U.S.8 Accordingly,
Congress, in 1845, enacted federal law establishing the Tuesday after the first Monday
in November in every presidential election year as the general election date for the
election of electors.9 Article II further authorizes Congress to determine the date for
the electors to meet and cast their ballots10 and, hence, federal law provides that on
the Monday after the second Wednesday in December following each presidential
election, the electors meet at a place designated by each state to vote for the President
and Vice President.11
Counting and Certification of Electoral Votes
After the electoral college delegations meet in their states and cast votes for
President and Vice President, according to the 12th Amendment12 and applicable
federal law, the certified results are transmitted to the Congress and to other
designated authorities.13 On January 6, following the election, the Senate and the
House of Representatives, with the President of the Senate serving as the presiding
officer, meet in joint session to count the electoral votes.14 The presidential and vice
presidential candidates receiving a majority of the total number of electoral votes are
then declared to be elected President and Vice President.15
8 U.S. CONST. art. II, § 1, cl. 3.
9 3 U.S.C. § 1. (“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.”) June 25, 1948, ch. 644, 62
Stat. 672.
10 U.S. CONST. art. II, § 1, cl. 3.
11 2 U.S.C. § 7.
12 Prior to the 12th Amendment, each elector cast two undifferentiated votes for President.
The candidate winning the most votes, provided such total was at least a majority of the
number of electors (not electoral votes), was elected President, and the runner-up was elected
Vice President. This system, which failed to anticipate the emergence of political parties and
unified party tickets of President and Vice President, led to a tie vote between Thomas
Jefferson and his vice presidential running mate, Aaron Burr in the 1800 election. A
constitutional crisis and contingent election in the House of Representatives followed. The
anomalies of the original system were remedied by the 12th Amendment, which specified
separate votes for President and Vice President.
13 3 U.S.C. §§ 9, 10, 11.
14 3 U.S.C. § 15.
15 Id.
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Contingent Election16
If no presidential and vice presidential ticket obtains a simple majority of the
electoral votes, according to the 12th Amendment, the newly elected Congress
conducts what is referred to as “contingent election”: the House of Representatives
chooses the President and the Senate chooses the Vice President.17 In the House, the
President is elected from among the three candidates who received the most electoral
votes, with each state (not including the District of Columbia) casting a single vote
for President. In 1825, the only occasion on which contingent election was conducted
under the 25th Amendment, a majority of votes within multi-member state House
delegations was required to cast each state vote. In the Senate, the Vice President is
elected from among the two candidates who received the most electoral votes, with
each Senator casting a single vote. In the House, a majority of 26 or more state votes
is required to elect; in the Senate, a majority of 51 or more votes is required to elect.18
Electoral College Criticisms and Controversies
Proponents of presidential election reform cite several shortcomings in the
electoral college to justify reform or abolition of the current system.
Electoral College Deadlock: Contingent Election
If, in any election, the presidential and vice presidential candidates fail to receive
a simple majority of the electoral college votes, the 12th Amendment provides that
the House of Representatives chooses the President and the Senate chooses the Vice
President in a process known as contingent election.19 The election of the President
by the House of Representatives has happened only once since ratification of the 12th
Amendment. On February 9, 1825, the House elected John Quincy Adams as
President over Andrew Jackson by a vote of 13 states to 7, with an additional 4 states
voting for William H. Crawford.20 Likewise, election of the Vice President by the
Senate has also occurred only once. On February 8, 1837, the Senate elected Richard
Mentor Johnson as Vice President over Francis Granger by a vote of 33 to 16.
Many commentators have criticized the 1825 presidential contingent election,
claiming it created a “constitutional crisis” because the House appeared to select a
16 For further discussion regarding the contingent election process, see Election of the
President and Vice President: Contingent Election, (CRS Rpt. RS20300), by Thomas H.
Neale.
17 U.S. CONST. amend. XII.
18 Id.
19 U.S. CONST. amend. XII.
20 The 1824 presidential election was contested by four candidates: Jackson, who won a
plurality of popular and electoral votes, Adams, Crawford, and Henry Clay, all of whom were
Democratic Republicans. In contrast, there was only one vice presidential candidate in the
election, John C. Calhoun.
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President as part of a political “corrupt bargain” between Adams and Henry Clay,
who had been disqualified from the contingent election process because he came in
fourth, after Jackson, Adams, and Crawford in electoral vote totals (recall that the
12th Amendment limits contingent election candidates to the top three electoral vote
winners).21 Indeed, critics of the contingent election system generally argue that it
further removes the choice of President and Vice President from the voters. That is,
members of the House and Senate are free to exercise their choice without regard to
the winners of the popular vote in their district, state, or in the nation at large.
Moreover, by effectively granting each state an equal vote, the contingent election
system fails to account for great differences in population – and the number of votes
cast – in the various states. On the other hand, others point out that the 1825 House
contingent election resulted in a political backlash that ultimately facilitated Andrew
Jackson’s successful election four years later. As a result, supporters maintain, the
contingent election system has demonstrated that it does function by channeling voter
dissatisfaction into subsequent political action.22
In evaluating the contingent election process, some commentators have
suggested that any threshold inquiry requires assessing how often contingent election
occurs. That is, if the results of a general election are frequently inconclusive, thereby
increasing the likelihood of contingent elections, then democratic criteria would
require implementing reforms that “bring ... the people into the contingency
process.”23 Indeed, critics of the electoral college system caution that the presence
of viable and well funded third-party or independent presidential candidates, who may
be able to garner electoral votes by carrying a plurality of the votes in statewide
elections, increase the likelihood of contingent election. The last example of a third-
party candidate winning electoral votes occurred in 1968 with the minor party
candidacy of George C. Wallace who won 46 electoral college votes in six southern
states.24 Furthermore, critics argue, an extremely close and/or contested presidential
election, such as that of 2000, could likewise increase the probability of a contingent
election determining the presidency.25
It is also important to note, when considering the contingent election procedure,
that the 12th Amendment would not authorize the District of Columbia to vote in a
21 William Josephson and Beverly J. Ross, Repairing the Electoral College, 22 J. Legis. 145,
149 (1996).
22 Id.
23 JUDITH VAIRO BEST, THE CASE AGAINST DIRECT ELECTION OF THE PRESIDENT, A DEFENSE
OF THE ELECTORAL COLLEGE 88-89 (1971). The commentator notes, however, that since
ratification of the 12th Amendment, only one contingent election has been necessary and,
further, since gradual adoption by the states of the winner-take-all or general ticket system of
awarding electoral votes, discussed infra, there have been no contingent elections.
24 See discussion of independent and third-party candidacies infra pp. 11-13.
25 For discussion of electoral college procedure if, for example, as the result of a closely
contested election, two lists of electors from the same state are presented to the Congress, see
U.S. LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, OVERVIEW OF
ELECTORAL COLLEGE PROCEDURE AND THE ROLE OF CONGRESS 6-7, CD00785 (Nov. 17,
2000).
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contingent election in the House and Senate. While the ratification of the 23rd
Amendment in 1961 granted the District of Columbia three votes in the electoral
college, the District of Columbia would be effectively disenfranchised in a contingent
election, as it is not a state and sends neither Senators nor Representatives to
Congress.26
The “Minority President”
Reform proponents also cite the fact that the current electoral college system can
result in the election of a so-called “minority” president, i.e. one who wins the
electoral vote, but loses the popular vote. Indeed, in the 1800s, the electoral college
system led to the election of three such “minority” presidents, namely, John Quincy
Adams in 1824, Rutherford B. Hayes in 1876, and Benjamin Harrison in 1888. In
1824, John Quincy Adams received fewer popular and electoral votes than Andrew
Jackson, his major opponent, but was chosen President by contingent election (as
noted previously, both ran as Democratic Republicans). In 1876, Republican
Rutherford B. Hayes received fewer popular votes than his opponent Democrat
Samuel J. Tilden, but won the election by one electoral vote. In the presidential
election of 1888, Republican Benjamin Harrison received fewer popular votes than
his major opponent, Democrat Grover Cleveland, but won the election with more
electoral college votes.27
Most recently, for the first time in 112 years, the very closely contested
presidential election of 2000 resulted in a President and Vice President who received
a majority of electoral votes, but fewer popular votes than the electoral vote runners-
up. This event has led to renewed congressional and public interest in reforming the
electoral college system.
Small State Advantage in the Electoral College
As the composition of the electoral college is based on state representation in
Congress, some maintain it is inconsistent with the “one person, one vote” principle.28
The Constitutional Convention of 1787 agreed on a compromise election plan
whereby less populous states were assured of a minimum of three electoral votes,
based on two Senators and one Representative, regardless of state population. Since
state electoral college delegations are equal to the combined total of each state’s
Senate and House delegation, the composition of the electoral college thus appears
26 “But in choosing the President, the votes shall be taken by states” and “the Senate shall
choose the Vice-President.” U.S. CONST. amend. XII (emphasis added).
27 NOMINATION AND ELECTION OF THE PRESIDENT AND VICE PRESIDENT, S. Doc. 106-16 at
409 (2000). Some historians suggest that, due to the prevalence of election fraud by both
parties, it is difficult to determine which candidate actually won more votes in the 1876 and
1888 contests.
28 The one person, one vote principle was established by the U.S. Supreme Court in
congressional and state legislative reapportionment and redistricting cases in order to insure
equal representation for equal numbers of people. See, e.g., Reynolds v. Sims, 377 U.S. 533,
568 (1964) and Wesberry v. Sanders, 376 U.S. 1, 7-18 (1964).
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to be weighted in favor of the small states. The two “senatorial” electors and the one
“representative” elector to which each state is entitled may advantage smaller states
over more populous ones because voters in the smaller states, in effect, cast more
electoral votes per voter. For instance, in 1996, voters in Wyoming, the least
populous state, cast 209,250 votes for President or one electoral vote (Wyoming is
allocated 3) for every 69,750 voters. By comparison, Californians cast 9,663,105
votes, or one electoral vote (California is allocated 54) for every 178,946 voters.29
As a result of this distribution of electoral votes among the states, it is arguable that
there is a small state advantage over large states with regard to electoral vote
allocation relative to the states’ populations.
While it is generally recognized that there is a small state arithmetical advantage
in the electoral college, there is, conversely, a large state advantage in that the most
populated states control the largest blocs of electoral votes. For example, voters in
more populous states are able to influence a larger bloc of electoral votes than those
in less populous ones, because of the winner-take-all method of allocating electoral
votes. Thus, to use the previously cited examples, a voter in Wyoming in 1996 could
influence only three electoral votes, whereas a voter in California could influence 54
electoral votes in the same presidential election. According to this argument, known
as the “voting power” theory, the electoral college system actually provides an
advantage to the six most populous states (California, Florida, Illinois, New York,
Pennsylvania, and Texas) and disadvantages all other states and the District of
Columbia.30
Methods of Allocating Electoral Votes
Under Article II, Section 1, Clause 2 of the Constitution, electors are
appointed in “such Manner as the Legislature thereof may direct.” In interpreting this
constitutional provision, the Supreme Court, in the 1892 decision McPherson v.
Blacker,31 held that state legislatures have the exclusive power to direct the manner
in which presidential and vice presidential electors are appointed. Moreover, aside
from Congress having the authority, under this provision, to determine the time of
choosing electors and the day on which they vote, the power of the several states is
exclusive. Accordingly, a state legislature has the authority to determine, for
example, whether its electors will be allocated according to the general ticket system
or the district system.32
The General Ticket or Winner-Take-All System.
Presently, 48 states and the District of Columbia (Maine and Nebraska are the
exceptions, having adopted the district system) have adopted the winner-take-all
29 CONGRESSIONAL QUARTERLY, INC., AMERICA VOTES 22: A HANDBOOK OF
CONTEMPORARY AMERICAN ELECTION STATISTICS (1988).
30 Lawrence D. Longley and James D. Dana, Jr., The Biases of the Electoral College in the
1990s, 25 Polity 123-45 (1992).
31 146 U.S. 1 (1892).
32 Id. at 35-36.
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method of allocating electors. Under this method of allocation, the slate of electors,
representing the presidential and vice presidential ticket that wins a plurality of votes
in a state is elected on election day in November, and later meets in mid-December
in the electoral college to cast all of the state’s electoral ballots for the winning
presidential and vice presidential candidates.33
The District System.
The states of Maine34 and Nebraska35 have adopted the congressional district
method of allocating some of their electors. Under the district system, two electors
are chosen on a statewide, at-large basis, and one is elected in each congressional
district. Each voter casts a single vote for President and Vice President, but the votes
are counted twice. That is, they are first tallied on a statewide basis and the two at-
large elector candidates winning the most votes (a plurality) are elected. They are
also tallied for each district, where the district elector candidate winning the most
votes is elected. Proponents of the district system claim that it more accurately
reflects differences in support in various parts of a state and does not necessarily
“disenfranchise” voters who picked the losing ticket.
The Decennial Census Problem
As the number of electors apportioned to each state is equal to the combined
total of its Representatives and Senators in Congress,36 that number is ultimately
dependent upon each state’s population. After each decennial census, the 435
Representatives are reapportioned to the states based on their respective populations:
some states gain Representatives while other states lose them, in accordance with
shifts in population.37 Therefore, the gain or loss of a state’s representation in the
House of Representatives affects the size of its electoral college delegation.
The decennial reapportionment of electors fails, however, to account for
significant population shifts that often during the course of a decade. Thus, the
allocation of electoral votes in the 2000 election actually reflected 1990 population
distribution among the states. For a period of time, therefore, this situation results in
over-representation in the electoral college for some states and under-representation
for others. Moreover, the 2000 reallocation of electoral votes will not be in effect
until the presidential election of 2004, when it will be four years out of date.
33 NOMINATION AND ELECTION OF THE PRESIDENT AND VICE PRESIDENT, S. Doc. 106-16 at
313-94 (2000).
34 ME. REV. STAT. ANN. tit. 21, § 805.
35 NEB. REV. STAT. § 32-548.
36 U.S. CONST. art. II, § 1, cl. 2.
37 U.S. CONST. art. I, § 2, cl. 3.
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The Faithless Elector
Although presidential electors are generally expected to support the candidates
in whose name they are chosen, 26 states plus the District of Columbia go one step
further and attempt to bind their electors38 by one of several means: (1) requiring an
oath or pledge or requiring electors to cast a vote for the candidates of the political
party they represent, all under penalty of law;39 (2) requiring a pledge or affirmation
of support, without any penalty of law;40 (3) directing electors to support the winning
ticket;41 and (4) directing electors to vote for the candidates of the party they
represent.42 In addition, some state political parties require in their rules that
candidates for elector make an affirmation or pledge to support the party nominees.
In the 1952 decision, Ray v. Blair, the Supreme Court held that it does not
violate the Constitution for a political party, exercising state-delegated authority, to
require candidates for the office of elector to pledge to support the presidential and
vice presidential nominees of the party’s national convention.43 Specifically, the Court
found that excluding a candidate for elector because he or she refuses to pledge
support for the party’s nominees is a legitimate method of securing party candidates
who are pledged to that party’s philosophy and leadership. According to the Court,
such exclusion is a valid exercise of a state’s right under Article II, Section 1 of the
Constitution, which provides for appointment of electors in such manner as the state
legislature chooses.44 In addition, the Court determined, state imposition of such
pledge requirements does not violate the 12th Amendment45 nor does it deny equal
protection and due process under the Fourteenth Amendment.46
In Ray v. Blair, however, the Court did not rule on the constitutionality of state
laws that bind electors and left unsettled the question of whether elector pledges and
penalties for failure to vote as pledged may be constitutionally enforceable. Indeed,
in the view of many commentators, based on the text of the Constitution, its structure,
and history, statutes binding electors and the pledges that electors make are likely to
be constitutionally unenforceable. That is, according to some commentators, electors
38 For a summary of the state and District of Columbia statutes binding electors votes, see,
U.S. LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, STATE STATUTES
BINDING ELECTORS’ VOTES IN THE ELECTORAL COLLEGE (2000), Memorandum by L. Paige
Whitaker.
39 New Mexico, North Carolina, Oklahoma, South Carolina, and Washington.
40 District of Columbia, Florida, Massachusetts, Mississippi, and Oregon.
41 Alabama, Alaska, Colorado, Maine, Maryland, Montana, Nebraska, Nevada, Vermont, and
Wyoming.
42 California, Connecticut, Hawaii, Michigan, Ohio, Virginia, and Wisconsin.
43 343 U.S. 214, 228-231 (1952).
44 Id. at 225-27.
45 Id. at 228-31.
46 Id. at 226, n.14 (distinguishing Nixon v. Herndon, 273 U.S. 536 (1927)).
CRS-10
remain free agents who may vote for any candidate they choose.47 Presidential
election reform advocates argue that the free agency status of electors further
diminishes democratic involvement in the presidential election process.
Historically, most electors have actually been faithful to the presidential and vice
presidential tickets winning the most votes in their respective states. There have been,
however, a number of occasions when “faithless electors” voted for presidential and
vice presidential candidates other than those to whom they were pledged, and, in the
election of 2000, an elector cast a blank ballot. Contemporary incidents of the
“faithless elector,” and the one elector who cast a blank ballot, have occurred in the
following presidential election years:
•
1948 – Preston Parks, a Tennessee elector for Harry S. Truman (D) voted for
Governor Strom Thurmond (States’ Rights) of South Carolina;
•
1956 – W.F. Turner, an Alabama elector for Adlai E. Stevenson (D) voted for
Walter E. Jones, a local judge;
•
1960 – Henry D. Irwin, an Oklahoma elector for Richard M. Nixon (R) voted
for Senator Harry F. Byrd (D) of Virginia;
•
1968 – Dr. Lloyd W. Bailey, a North Carolina elector for Richard M. Nixon
(R) voted for George C. Wallace of the American Independent Party;
•
1972 – Roger MacBride, a Virginia elector for Richard M. Nixon (R) voted
for John Hospers of the Libertarian Party;
•
1976 – Mike Padden, a Washington elector for Gerald R. Ford (R) voted for
Governor Ronald Reagan (R) of California; and
•
1988 – Margaret Leach, a West Virginia elector for Michael Dukakis (D)
voted for Senator Lloyd Bentsen (D) of Texas;48 and
•
2000 – Barbara Lett-Simmons, a District of Columbia elector for Albert Gore,
Jr. (D) cast a blank ballot.
47 See, e.g., LAWRENCE D. LONGLEY AND NEAL R. PEIRCE, THE ELECTORAL COLLEGE
PRIMER 109 (1996)(remarking that “statutes binding electors, or pledges that they may give,
are unenforceable”); Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing the
Constitution’s Succession Gap, 48 Ark. L. Rev. 215, 230 (1995)(“Notwithstanding some
language in Ray v. Blair,” Professor Amar acknowledges “real doubts about state laws that
attempt to force electors to take legally binding pledges” and further notes that “even if a legal
pledge can be required, it is far from clear that any legal sanction could be imposed in the
event of a subsequent violation of that pledge”); But see Beverly J. Ross and William
Josephson, The Electoral College and the Popular Vote, 12 J.L. & Politics 665, 745
(1996)(concluding that “state statute-based direct or party pledge binding legislation is valid
and should be enforceable.”)
48 Ms. Leach effectively reversed the order of her vote, choosing Senator Bentsen, the vice
presidential nominee in 1988, for President, and Governor Dukakis, the presidential nominee,
for Vice President.
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Presidential Succession: Between Nomination and Inauguration49
During the multistage presidential election process, as set forth in the Constitution
and applicable federal statutes, a number of contingencies could occur as a result of
the death, disability, or resignation of a prospective president or vice president during
the period between nomination and inauguration. As the rules of succession may be
unclear during certain stages of the process, some commentators have argued that
statutory or constitutional reforms are needed in order to provide clarification and
avoid dispute.
The first contingency could occur if a candidate nominated by a political party
were to die or resign prior to the November election. At that point in the process,
since no one has been elected, there is not yet a question of succession under the
Constitution or federal law.50 As a result, the political parties have adopted rules to
fill presidential and vice presidential nominee vacancies.51 For example, in 1972, a
political party filled a vice presidential nominee vacancy when vice presidential
candidate Thomas Eagleton resigned at the end of July and the Democratic National
Committee met on August 8 to nominate R. Sargent Shriver as the new vice
presidential candidate.
The second could occur if a presidential or vice presidential candidate dies after
election day in November, but before the electors meet to cast their votes in
December. This contingency has been the subject of concerned speculation and
unsettled debate. Some commentators suggest that, the political parties, employing
their rules providing for the filling of presidential and vice presidential vacancies,
would designate a substitute nominee. Accordingly, the electors, who are
predominantly party loyalists, would cast their votes for the substitute nominee,
thereby producing the satisfactory result of the election of a candidate from the party
that prevailed in November.52 Other commentators, however, caution that a faithful
elector, perhaps complying with a state statutorily mandated pledge, would vote for
the decedent even though precedent suggests that such votes might not be counted
by the Congress.53 Due to the arguable indecisiveness of the process, many
49 For additional information, see Major Party Candidates for President and Vice President:
How Vacancies Are Filled, (CRS Archived Rpt. 96-855(GOV)) by Thomas H. Neale; U.S.
LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, PRESIDENTIAL AND VICE
PRESIDENTIAL SUCCESSION: FROM NOMINATION THROUGH INAUGURATION (2000),
Memorandum by L. Paige Whitaker.
50 See WALTER BERNS, AFTER THE PEOPLE VOTE: A GUIDE TO THE ELECTORAL COLLEGE 92-
93 (Walter Berns ed., American Enterprise Institute Press, 2d ed. 1992).
51 See The Republican National Committee Rules, 2000, Rule No. 9; The Charter and
ByLaws of the Democratic Party of the U.S., Sept. 25, 1999, Art. III, § 1(c).
52 Presidential Succession Between the Popular Election and the Inauguration: Hearing
Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 103d Cong.,
2d Sess. 12-13 (1994) [hereinafter Hearing] (prepared statement of Walter Dellinger on
behalf of the Office of Senate Legal Counsel U.S. Dept. of Justice).
53 Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing the Constitution’s
(continued...)
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commentators have urged Congress to enact clarifying federal statutes to address this
contingency.54
Similarly, the third contingency, where a presidential or vice presidential nominee
dies after the electors cast their votes in December, but before Congress counts the
electoral votes in January, has also been discussed with uncertainty. Legal scholars
suggest that ascertaining the applicable succession process for this contingency turns
on when a presidential or vice presidential designate, who has received a majority of
the electoral votes, becomes certified “President-elect” or “Vice President-elect.”
Commentators, who maintain that presidential and vice presidential designates are
considered president and vice president-elect at this stage in the process, conclude
that the 20th Amendment provides clear rules of succession.55 That is, if at the time the
presidential term is set to begin (namely, January 20), the “President elect shall have
died,” the Vice President-elect shall become President on January 20.56 On the other
hand, some commentators are doubtful as to whether an official President and Vice
President-elect exist prior to the electoral votes being counted and announced by
Congress on January 6, and therefore contend that this is also a problematic
contingency lacking clear constitutional or statutory direction.57
The 20th and 25th Amendments clearly address the fourth contingency whereby a
president or vice president-elect dies after Congress counts and certifies the electoral
votes, but prior to being inaugurated on January 20. If the President-elect dies after
certification, but before being inaugurated, the Vice President-elect becomes
president-elect, under the 20th Amendment.58 The resulting vacancy in the Vice
Presidency would then be filled after inauguration by the new President, subject to
confirmation by a majority of both Houses of Congress, under the 25th Amendment.59
Likewise, according to the 25th Amendment, if the Vice President-elect dies after
certification, but before inauguration, the vacancy would be filled by the new
President after he or she is inaugurated, subject to confirmation by a majority of both
Houses of Congress.60
53 (...continued)
Succession Gap, 48 Ark. L. Rev. 215 (1995), reprinted in Hearing, at 217-19 (prepared
statement of Akhil Reed Amar, Southmayd Professor, Yale Law School)(advocating that
Congress enact federal law clearly providing a succession process in order to address this
“time bomb ticking away in our Constitution”).
54 See, e.g., Id.
55 Hearing, supra note 47, at 11 (prepared statement of Walter Dellinger).
56 U.S. CONST. amend. XX, § 3, cl. 1.
57 Hearing, supra note 47, at 39 (prepared statement of Walter Berns, John M. Olin
University Professor, Georgetown University; Adjunct Scholar, American Enterprise
Institute).
58 U.S. CONST. amend. XX, § 3, cl. 1.
59 U.S. CONST. amend. XXV, § 2.
60 Id.
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Independent and Third-Party vs. Major Party Candidates
As it politically and historically evolved under state election laws and major
political party rules, the electoral college system has generally favored the major
political parties over independent and third-party candidacies. While major party
presidential candidates are automatically placed on the ballot, independent and third-
party presidential and vice presidential candidates must demonstrate certain levels of
popular support to gain access to the November general election ballots in the states
and the District of Columbia.61 Often the independent candidates directly, and the
minor parties generally by party committee, appoint or nominate their electors to state
election officers to be voted on in the November general election. Moreover, the non-
major party candidates must comply with diverse and often complicated nominating
petition requirements for ballot positions in these 51 jurisdictions, which generally
require a certain number of voter signatures in order to demonstrate that the candidate
or party has a level of support.62
Historically, no independent, minor party, or third-party presidential candidate
has ever won the presidency, although three presidential candidates in past elections
did win statewide elections and thus electoral college votes: 1948–39 electoral votes
for Strom Thurmond; 1960–15 electoral votes for Harry F. Byrd; and 1968–46
electoral votes for George C. Wallace.63
Over the last thirty years, however, various federal court decisions have made it
easier for minor party and independent candidates for President and Vice President
to gain ballot access. For example, in 1968, the Supreme Court in Williams v.
Rhodes, struck down on equal protection grounds an Ohio election law requiring a
new political party to obtain petitions signed by qualified electors totaling 15% of the
number of ballots cast at the last gubernatorial election and to file them in early
61 See NOMINATION AND ELECTION OF THE PRESIDENT AND VICE PRESIDENT, S. Doc. 106-16,
at 310-94 (2000).
62 See id. Further adding to the major party advantage in presidential elections, the federal
public financing provisions facilitate the acquisition of public campaign funds for major party
presidential candidates, while independent, minor party, and third-party candidates must
demonstrate at least a 5% voter support in order to receive any public funds, which are then
provided four years later. See generally, 26 U.S.C. §§ 9001-9012 (general election
presidential public financing provisions); 26 U.S.C. § 9004(a)(2)(A)(B),(3)(eligibility of
minor party candidates to receive public funds). While it was argued in the 1976 Supreme
Court decision, Buckley v. Valeo, 424 U.S.1, 97 (1976), that the presidential public financing
provisions were invidiously discriminatory against non-major party candidates in violation of
the due process clause of the Fifth Amendment, the Buckley Court disagreed since “the
Constitution does not require Congress to treat all declared candidates the same for public
financing purposes.” Id. at 97. “The Constitution does not require the Government to ‘finance
the efforts of every nascent political group’ [quoting American Party of Texas v. White, 415
U.S. at 794] merely because Congress chose to finance the efforts of the major parties.” The
Court noted, however, that it was not ruling out a future conclusion that public financing
systems invidiously discriminate against non-major parties if such parties could present an
appropriate factual demonstration. Id. at 97, n.13.
63 See U.S. DEP’T OF COMMERCE, STATISTICAL ABSTRACT OF THE U.S. 72 (115 ed. 1995).
CRS-14
February of the presidential election year. The Court found that Ohio’s election laws
relating to the nomination and election of presidential and vice presidential electors,
which effectively limited general election ballot access to the two major political
parties, taken as a whole, were invidiously discriminatory against minor party
candidates in violation of the 14th Amendment equal protection clause.64 Furthermore,
during the 1976 presidential election, independent candidate Eugene J. McCarthy
challenged the constitutionality of many state statutes providing ballot access
procedures for independent presidential candidates, many of which the federal courts
invalidated on equal protection grounds as being discriminatory to independent
presidential candidates.65 During the 1980 election, independent presidential
candidate John B. Anderson still encountered similar obstacles to ballot access and,
accordingly, he was able to successfully challenge state election laws in seven states:
(1) Florida,66 (2) Kentucky,67 (3) Maine,68 (4) Maryland,69 (5) New Mexico,70 (6)
Ohio,71 and (7) North Carolina.72 Generally, as a result of such challenges, it is now
somewhat easier for independent and third party presidential candidates to gain ballot
access in the states and the District of Columbia and therefore to wage a more
competitive campaign against major party presidential candidates.
Electoral College Reform Proposals
History
Since the adoption of the Constitution, the electoral college has been the subject
of discussion and controversy. The 12th Amendment, (proposed by Congress on
December 9, 1803 and ratified by three-fourths of the several states on July 27, 1804)
which sets forth electoral voting procedures, has been the only major reform of the
electoral college. Since then, in almost every session of Congress, resolutions have
64 393 U.S. 23, 28-34 (1968).
65 See generally, COMMITTEE FOR A CONSTITUTIONAL PRESIDENCY, Progress Report On
McCarthy Legal Challenges (1976).
66 Anderson v. Firestone, 499 F. Supp. 1027 (N.D. Fla. 1980).
67 Greaves v. Mills, 497 F. Supp. 283 (E.D. Ky. 1980), aff’d in part and rev’d in part, sub
nom., Anderson v. Mills, 664 F.2d 602 (6th Cir. 1981).
68 Anderson v. Quinn, 495 F. Supp. 730 (D. Me. 1980), aff’d 634 F.2d 616 (1st Cir. 1980).
69 Anderson v. Morris, 500 F. Supp. 1095 (D. Md. 1980), aff’d 636 F.2d 55 (4th Cir. 1980),
judgment vacated 658 F. 2d 246 (4th Cir. 1980).
70 Anderson v. Hooper, 498 F. Supp. 898 (D.N.M. 1980).
71 Anderson v. Celebrezze, 499 F. Supp. 121 (S.D. Oh. 1980), rev’d 664 F. 2d 554 (6th Cir.
1981), rev’d 460 U.S. 780 (1983). The Supreme Court held that the restrictive provisions of
the Ohio election statutes, requiring early filing deadlines for independent candidates, placed
an unconstitutional burden on the voting and associational rights of the independent
candidate’s supporters. Id. at 790-95.
72 Anderson v. Babb, No. 80-561-CIV-5 (E.D. N.C. 1980), aff’d per curiam 632 F.2d 300
(4th Cir. 1980).
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been introduced proposing electoral college reform. Indeed, more proposed
constitutional amendments have been introduced in Congress regarding electoral
college reform than on any other subject. Between 1889 and 2000, approximately
587 such amendments were proposed.73 Generally, most of these bills had minimal
legislative activity. However, for some of these proposals, hearings were held and
some legislative activity occurred, but there was insufficient legislative support to
obtain the two-thirds votes of both Houses of Congress necessary for approval of a
constitutional amendment under Article V.74
The attempt in Congress that came closest to success occurred after the 1968
presidential election when American Independent party candidate George Wallace
won 46 electoral votes, generating concern about the prospect of contingent election
or the trading of electoral votes in return for policy concessions. In the 91st Congress
(1969-70), H.J. Res. 681 (Celler), proposed to abolish the electoral college and
provide for the direct popular election of the President and the Vice President, with
a runoff requirement between the two presidential candidates with the highest votes
when a 40% margin of the vote was not obtained. This resolution passed the House
on September 18, 1969 by a vote of 338-70, but failed to pass the Senate in 1970 due
to a filibuster.75
Likewise, congressional interest increased after the close presidential election in
1976, in which the Democratic candidate (Jimmy Carter) beat the Republican
President (Gerald R. Ford) by a 50.1 percent popular vote margin and by an electoral
vote of 297-240 (270 votes needed to win).76 S.J. Res. 26 of the 96th Congress
proposed direct popular election and was approved in the Senate by a margin of 51
to 48 in 1979. This margin was far short of the two-thirds required for a
constitutional amendment. Given the results of the vote, the House leadership
decided not to bring the proposal to the floor in the 96th Congress. To date, this 1979
Senate vote was the most recent floor action regarding presidential election reform.
73 CONG. REC. index; Legislative Information Service.
74 LEAGUE OF WOMEN VOTERS OF THE U. S., WHO SHOULD ELECT THE PRESIDENT? 43, 92-
95 (1969). The House Judiciary Committee held hearings on proposals to reform the electoral
college in 1947, 1949, 1951, and 1969. Likewise, the Senate Subcommittee on Constitutional
Amendments held hearings in 1948, 1953, 1955, 1961, 1963, 1966, 1967, and 1969. In the
House, between 1947 and 1968, there were four occasions when House Joint Resolutions were
reported favorably: 1948 (H.J. Res. 9, Gossett); 1949 (H.J. Res. 2, Gossett); 1950 (S.J. Res.
2, Lodge); and 1951 (H.J. Res. 19, Gossett). Between 1947 and 1968, Senate Joint
Resolutions were also reported favorably four times: 1948 (S.J. Res. 200, Lodge); 1949 (S.J.
Res. 2, Lodge); 1951 (S.J. Res. 52, Lodge); and 1955 (S.J. 31, Daniel). S. J. Res. 2 (Lodge)
passed the Senate by the required two-thirds votes, but the House failed to vote on the Senate
Resolution. Id.
75 CONGRESSIONAL QUARTERLY, INC., POWERS OF CONGRESS 279-80 (1976).
76 U.S. DEP’T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 271 (1995).
In 1976, the Democratic presidential and vice presidential candidates received 40,831,000
votes over the Republican presidential and vice presidential candidates, who received
39,148,000 votes.
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Proposals to reform the electoral college in recent Congresses generally fall into
two categories: those that would eliminate the electoral college system entirely,
replacing it with direct popular election, and those that seek to repair perceived
defects in the existing arrangement. These proposals are examined below.
The Direct Election Plan: Elimination of the Electoral College
In recent decades, the most popular proposal to reform the present method of
electing the President and Vice President has been the direct election plan. Under this
plan, the electoral college would be abolished and the President and Vice President
would be elected directly by popular vote. Most direct election proposals would
require that the winning candidates receive at least 40% of the votes cast, and provide
for a runoff election between the two presidential and vice presidential tickets
receiving the greatest number of popular votes if no candidate receives the requisite
percentage.
Proponents of the direct election plan argue that their proposal is simple and
democratic: the candidates winning the most popular votes would be elected. Direct
election would thus eliminate the possibility of a “minority” President and Vice
President because the candidate winning the most popular votes would always prevail.
Further, it would eliminate an even greater potential for distortion of the public will
by abolishing the contingent election process. In addition, proponents note that the
direct election plan would provide every vote equal weight, regardless of the state in
which it was cast. It is further noted that the direct election plan would reduce the
complications that currently could arise, in the event of a presidential candidate’s
death, between Election Day and the date that the electoral college meets.
Opponents argue that the direct election plan would weaken the present two-party
system and result in the growth of minor parties, third parties, and new parties. The
parties are forced to conduct broad-based campaigns throughout the nation, in hopes
of assembling the requisite majority of 270 votes, thus discouraging minor or splinter
parties. Similarly, the need to forge national coalitions having a wide appeal has been
a contributing factor to the relative moderation and governmental stability enjoyed by
the nation under the two-party system. Moreover, it is argued, the growth of such
parties could have a divisive effect on national politics and result in governance by less
stable coalitions similar to those in some parliamentary democracies. Opponents
further contend that a direct election plan would weaken the powers of the smallest
and largest populated states under the present system since this new system would
make each state’s borders irrelevant in terms of voting because each vote would be
counted equally under the one person, one vote principle, regardless of the population
size of the state in which it was cast.77 Finally, other critics of direct election contend
that the allocation of electoral votes is a vital component of our federal system. The
federal nature of the electoral college system is a positive good, according to its
defenders. They assert that the founders of the Constitution intended the states to play
an important role in the presidential elections and that the electoral college system
provides for a federal election of the President that is no less legitimate than the
77 LEAGUE OF WOMEN VOTERS OF THE U. S., supra note 74, at 71-79.
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system of allocating equal state representation in the Senate. Direct popular election,
they claim, would be a serious blow to federalism in the United States.
Electoral College Reform
In contrast to direct popular election, the three proposals described in this section
would retain the electoral college, but would repair perceived defects in the existing
system. One characteristic shared by all three is the elimination of electors as
individual actors in the process. Electoral votes would remain, but they would be
awarded directly to candidates. The asserted advantage of this element in these
reform plans is that it would eliminate the potential for faithless electors.
The District Plan.
The district plan preserves the electoral college method of electing the President
and Vice President, with each state choosing a number of electors equal to the
combined total of its Senate and House of Representatives delegations. It would,
however, eliminate the present general ticket or winner-take-all procedure of allotting
a state’s entire electoral vote to the presidential candidates winning the statewide
vote. Instead, one elector would be chosen by the voters for each congressional
district, while an additional two, representing the two “senatorial” electors allocated
to each state regardless of population, would be chosen by the voters at large. This
plan, which could be adopted by any state, under their power to appoint electors in
Article II, Section 1, Clause 2 of the Constitution, is currently used by Maine78 and
Nebraska.79 Under the district plan, the presidential and vice presidential candidates
winning a simple majority of the electoral votes would be elected.
Most district plan proposals provide that, in case of an electoral college tie, the
candidates having the plurality of the district electoral votes – excluding the at-large
electoral votes assigned to each state for Senators – would be declared the winners.
If the electoral vote count still failed to produce a winner, most proposals advocating
the district plan would require the Senate and House of Representatives to meet in
joint session to elect the President and Vice President by majority vote, with each
Member having one vote, from the three candidate tickets winning the most electoral
votes.
An example of how the district system would operate in one state, as compared
with the winner-take-all or general ticket system, follows. In 1996, President Bill
Clinton received 5,119,815 popular votes in California to 3,882,368 for Republican
nominee Bob Dole, and thus won all 54 of that state’s electoral votes under the
winner-take-all general ticket. (Independent candidate Ross Perot and assorted minor
party nominees received an additional 1,070,398 votes). By contrast, under the
district system, Clinton, who carried 37 congressional districts and the statewide vote,
would have won 39 electoral votes (37 plus the additional two allocated to the
78 ME. REV. STAT. ANN. tit. 21, § 805.
79 NEB. REV. STAT. § 32-548.
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statewide winner under the district system), while Dole would have won the 15
electoral votes representing the districts he carried.
On the national level, the district system would have produced somewhat different
national electoral college results if it had been in effect in 1996. Totals for the general
ticket and district methods are provided below:
Candidate
General Ticket System
District System
Clinton (D)
379
345
Dole (R)
159
193
Others
0
0
Total
538
538
(Comparative electoral vote totals for the 1996 presidential elections: the general ticket and district
systems compared.)80
Proponents of the district plan assert that it would more accurately reflect the
popular vote results for presidential and vice presidential candidates than the present
electoral college method. Moreover, proponents note, by preserving the electoral
college, the district plan would not deprive small or sparsely populated states of
certain advantages under the present system. That is, each state would still be
allocated at least three electoral votes, correlating to its two Senators and its one
Representative, regardless of the size of the state’s population. In those states
dominated by one political party, the district plan might also provide an incentive for
greater voter participation and an invigoration of the two-party system in presidential
elections because it might be possible for the less dominant political party’s candidates
to carry certain congressional districts.81 Finally, proponents argue that the district
plan reflects political diversity within different regions of states, while still providing
a two-vote bonus for statewide vote winners.
On the other hand, opponents of the district plan contend that it does not go far
enough in reforming the present electoral college method, because the weight of each
vote in a small state would still be greater than the weight of a vote in a more
populous state. In addition, they note, the district plan would continue to allow the
possibility of electing “minority” candidates who win the electoral votes while losing
the popular vote. Some opponents of the district plan further argue that by facilitating
the garnering of electoral votes (since winning congressional districts is easier than
winning statewide) implementation of the district plan would actually weaken the
80 U.S. LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, PRESIDENTIAL
ELECTION RETURNS BY CONGRESSIONAL DISTRICT 6, 23 (2000), Memorandum by David C.
Huckabee.
81 See WALLACE S. SAYRE AND JUDITH H. PARRIS, THE BROOKINGS INSTITUTION, VOTING
FOR PRESIDENT 102-17 (1970); see generally LEAGUE OF WOMEN VOTERS OF THE U.S.,
supra note 74, at 64-66.
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present two-party system and encourage the development of minor parties, new
parties, and third parties.
The Proportional Plan.
The proportional plan retains the electoral college, but awards electoral votes in
each state based on the percentage of votes received in each state (irrespective of the
districts from which the voters come) by the competing candidates. In the interests of
fairness and accuracy, and to avoid problems with rounding, most proportional plans
divide whole electoral votes into thousandths of votes, that is, to the third decimal
point. Under most proposals advocating the proportional plan, the presidential and
vice presidential candidates receiving a simple majority of the vote, or a plurality of
at least 40% of the electoral votes, would be elected. Should presidential and vice
presidential candidates fail to receive the percentage, most proportional plan
proposals provide that the Senate and the House of Representatives would meet and
vote in joint session to choose the President and the Vice President from the
candidates having the two highest numbers of electoral votes.
An example of how the proportional plan would have operated in one state in the
1996 presidential election, as compared with the winner-take-all or general ticket
system, follows. President Bill Clinton, who as noted previously, captured all 54
California electoral votes under the general ticket system, would have won 28.725
votes, to 21.299 for Bob Dole, and 3.976 for Ross Perot and other candidates in 1996
under the proportional plan.
Nationwide electoral vote tallies for 1996 under the general ticket and
proportional systems are provided below:
Candidate
General Ticket System
Proportional System
Clinton(D)
379
268.358
Dole (R)
159
223.420
Others
0
46.221
Total
538
537.999
(Comparative electoral vote totals for the 1996 presidential elections: the general ticket and
proportional systems compared.)82
Proponents of the proportional plan argue that this plan comes the closest of any
of the other plans to electing the President and Vice President by popular vote while
82 U.S. LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, PRESIDENTIAL
ELECTION RETURNS BY CONGRESSIONAL DISTRICT 9, 23 (2000), Memorandum by David C.
Huckabee.
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still preserving each state’s electoral college strength. They also note that the
proportional plan would make it more unlikely that “minority” presidents–those
receiving more electoral votes than popular votes under the present system–would be
elected. Proponents also argue that the proportional plan, by eliminating the present
winner-take-all system, would give weight to the losing candidates by awarding them
electoral votes in proportion to the number of votes they obtained. They also suggest
that presidential campaigns would become more national in scope, with candidates
gearing their efforts to nationwide popular and electoral vote totals, rather than
concentrating on electoral vote-rich populous states.
Opponents of the proportional plan argue that it could undermine and eventually
eliminate the present two-party system by making it easier for minor parties, new
parties, and independent candidates to compete in the presidential elections by being
able to win electoral votes without having to win statewide elections to do so.
Further, opponents argue, the states would generally have less importance as units,
since the winner-take-all aspect would be eliminated.83 Finally, opponents question
the 40% plurality threshold. If the point of the presidential election is to ascertain the
people’s choice, should not the winning candidate be required to gain at least a
majority (50%) of electoral votes in order to avoid a runoff election or election in
Congress?
The Automatic Plan.
The automatic plan would amend the present system by abolishing the office of
presidential elector and by allocating a state’s electoral votes on an automatic winner-
take-all basis to the candidates receiving the highest number of popular votes in a
state. Most versions of the automatic plan provide some form of contingent election
in Congress in the event no candidate receives a majority of electoral votes. Of the
three principal proposals to reform the electoral college, this proposal would result
in the least change from the present system of electing the President and the Vice
President.
Proponents of the automatic plan argue that it would maintain the present
electoral college system’s balance between national and state powers and between
large and small states. Proponents note that the automatic plan would eliminate the
possibility of the “faithless elector.” Furthermore, the automatic plan would preserve
the present two-major party system under a state-by-state, winner-take-all method of
allotting electoral votes.
Under the present system, minor parties, new parties, and independent candidates
have not fared very well in presidential elections, probably due to, inter alia, problems
such as ballot access procedures, public financing in the general election, and the lack
of name recognition and grass-roots organization in comparison to those of the
established major parties. Opponents of the automatic plan argue that it perpetuates
many of the perceived inequities inherent in the present electoral college system of
electing the President and the Vice President. Opponents also note that under the
83 See generally LEAGUE OF WOMEN VOTERS OF THE U.S., supra note 74, at 68-71; SAYRE
& PARRIS, supra note 81, at 118-34.
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automatic plan it would still be possible to elect a “minority” President and Vice
President.84 That is, it still presents the perceived problem that Congress and not the
people could still decide the presidency and the vice presidency when a majority of the
electoral votes is not obtained.
Conclusion
Despite various criticisms and controversies, the current form of the electoral
college has delivered the presidency to the popular and electoral vote winners in 46
out of 50 elections since it became operational in 1804.85 In the very closely
contested 2000 election, for the first time in 112 years, the system resulted in a
President and Vice President who received more electoral votes, but fewer popular
votes, than the electoral vote runners-up. This event has stimulated renewed
congressional and public interest in the question of presidential election reform,
particularly electoral college reform.
Generally, proponents of presidential election reform advocate either completely
eliminating the electoral college system and replacing it with direct popular election,
or repairing perceived defects in the existing system by implementing one of several
electoral college reform proposals advanced over the years. Following several close
elections in 1960, 1968, and 1976, proposed constitutional amendments providing for
direct election were actively considered in the House of Representatives and the
Senate in the 91st through 96th Congresses, but none received the approval of two-
thirds of the Members of both chambers necessary for proposal to the states. In the
two decades following the last floor action on electoral college reform, in 1979, the
existing system delivered substantial majorities of electoral votes to the popular vote
winner in every presidential election. Since the electoral college functioned as its
defenders predicted, notwithstanding occasional concerns over close elections and the
potential impact of independent or third party candidates, there was little impetus for
change. Following the 2000 presidential election, should Congress choose to revisit
the question of electoral college reform, it will need to weigh the merits of competing
policies, while recognizing the difficult hurdles faced by any controversial proposal
to amend the U.S. Constitution.86
84 See generally LEAGUE OF WOMEN VOTERS OF THE U.S., supra note 74, at 61-64; SAYRE
& PARRIS, supra note 81, at 90-101.
85 The anomaly contests included one in which the President was chosen by contingent election
(1824), one in which the Vice President was chosen by contingent election (1836), and three
occasions in which the electoral college winners received fewer popular votes than the
electoral college runners-up (1876, 1888, and 2000).
86 Proposed amendments must be approved by two-thirds majorities of both houses of
Congress and ratified by three-fourths (38) of the states, usually within a prescribed time
period of seven years.