The Electoral College, which is how we determine the winner of presidential elections, can be a confusing array of rules and procedures. The Electoral College is composed of 538 members. Each state is allotted one member for each United States Senator (100 total electors) and one member for each of its United States Representatives (435 total electors). The 23rd Amendment to the United States Constitution, ratified in 1961, gave residents of the District of Columbia the right to vote in presidential elections and was awarded three members to the Electoral College. Thus, there are 538 members total. To win the election, a presidential candidate must secure 270 votes.
The United States Constitution allows each state to decide how they appoint their electors. Initially, some state legislatures appointed them, but in the 19th century, all 50 states and the District of Columbia (since 1961) transitioned to the popular vote.
That does not mean there are not a couple of quirks. Maine and Nebraska award one electoral vote to the popular vote winner in each of their congressional districts and their remaining two electoral votes to the statewide winner. Under this system, those two states sometimes split their electoral votes among candidates. This is often the case in Nebraska where one congressional district typically votes Democratic and the others Republican, resulting in a split vote.
Some argue this is an unfair system because on five occasions, including two of the last six elections, the winner of the popular vote was defeated in the Electoral College. Also, it incentivizes presidential campaigns to focus on a relatively small number of “swing states” which we are sure you can name for this presidential election. Together, these dynamics have spurred debate about the system’s democratic legitimacy.
Electors are now pledged to vote for the winner of the popular vote in their state. However, the United States Constitution does not require them to do so, allowing for scenarios in which “faithless electors” have voted against the popular vote winner in their states. As of 2016, there have been 90 faithless electoral votes cast out of 23,507 in total across all presidential elections. The 2016 election saw a record-breaking seven faithless electors, including three who voted for former Secretary of State Colin Powell, who was not a presidential candidate at the time.
Currently, 33 states and the District of Columbia require their presidential electors to vote for the candidate to whom they are pledged. Only five states, however, impose a penalty on faithless electors, and only 14 states provide for faithless electors to be removed or for their votes to be canceled. In July 2020, the United States Supreme Court unanimously upheld existing state laws that punish or remove faithless electors.
No wonder the calls to “reform” the system continue to grow louder.