Understanding the Electoral College Today

After each citizen votes individually, a group of electors called the Electoral College makes the final choice for president and vice president of the United States of America. The Constitution outlines that each state appoints a number of electors equal to its number of senators and representatives, with an amendment later adding the District of Columbia. (U.S. territories do not vote for the presidency, and, therefore, do not have representation in the Electoral College.) With 538 total electors, a presidential candidate needs the majority of votes, or 270, to win the election. The highest number of votes from a state is 54 (California) with the lowest tied at 3 (Alaska, Delaware, South Dakota, North Dakota, Vermont, Wyoming, and Washington, D.C.). 

Each elector is chosen by the majority party in their state, often awarded the honor for previous political or community service. In 48 states electors are expected to — and in some states required by law to — vote for the candidate with the most individual, or popular, votes in their state. Maine and Nebraska choose by district and have split their electoral votes at times. Although usually overwhelmingly loyal, some electors have voted other than expected, including in 2020. However, to date, no “faithless elector” has succeeded in changing the results of an election.

Members of the Electoral College vote from their respective states rather than in person together. Aspects of the Electoral College continue to cause debate, but it would require a constitutional amendment to change the way presidents and vice presidents are selected. Many initiatives have gained attention, but none has gained enough support to modify the original process.

What if we don’t know the results on election night?

It is possible that the results of the popular vote in a close election would not be known on election night. If the race is close, recounting will begin. One or more candidates might contest the election in particular counties, which could slow the final result. The Electoral Count Reform Act of 2022 ensures such matters will be resolved within six days before the electors meet. 

Note: This “safe harbor” deadline for Election 2024 is December 11 — members of the Electoral College will vote on December 17. 

What if there’s a tie in the popular vote? 

A tie in a presidential election popular vote is, statistically, extremely rare. Since the vote is counted state by state, and each state’s winner is decided by electoral representatives, the sheer number of votes makes a tie highly unlikely.

If a tie were to occur in one or more states, results may not be known until approximately one month after the election once that state’s secretary of state (or designated chief election official, such as a lieutenant governor in some states) has overseen a recount. In the event of an exact tie of two presidential candidates within one or more states, each state’s tie-breaker law procedure (in place before the election) would decide the winner. These state laws include anything from a simple drawing of a name from a hat to more involved processes such as holding a special election.

What happens if no candidate wins a majority of Electoral College votes?

A presidential candidate must receive the majority of the 538 total Electoral College votes to win. While a tie at this level is extremely unlikely, there are several statistical scenarios where this might occur. 

If there is a tie in the Electoral College, and no candidate wins 270 votes, it is called a contingent election. As set forth by the 12th Amendment, in this scenario (which has only happened once for a presidential election and once for a vice presidential election), the president is chosen by a run-off vote in the House of Representatives. There, each state (not member) has one vote. In order to secure the presidency, a candidate would need votes from 26 states. In that same vein, in a contingent election, the vice presidency is decided by a simple majority in the Senate where each member would have one vote, making the winner the candidate who receives at least 51 votes.

It’s important to note that the Congress that would decide the outcome of the races would be the Congress elected in the 2024 election, not the Congress that is sitting when the election occurs. 

A contingent election can also result in a very unusual outcome should the bodies of Congress be of different political parties, because the majorities in each would likely vote for the candidate of their parties, resulting in a president and vice president of different political parties. 

Example: If the top two candidates were to tie 269-269 in the Electoral College vote and if more Republicans than Democrats were elected to House seats, the Republican presidential nominee would likely win the presidency. 

What if someone receives more popular votes but loses the electoral college? 

This has happened before! In 2000, Al Gore won more popular votes, and George W. Bush won more electoral votes. More recently, in 2016, Hillary Clinton won the popular vote and Donald Trump won the electoral vote. The U.S. presidency is decided by electoral votes, not popular votes. (Maine and Nebraska decide by district, so their votes occasionally split.) The Electoral College is composed of members who promise to vote for the candidate who wins the state’s popular vote. The number of Electoral College voters corresponds to the number of senators and representatives in each state (which corresponds with the population of each state). Many combinations of states’ numbers of electors exist, and these combinations create different scenarios where the popular vote does not always result in a presidential win.

Example from the National Archives 2016 election results: With the largest number of electoral votes in the country, California voted overwhelmingly for Clinton, casting their 54 electoral votes accordingly. Trump won the popular vote in Pennsylvania, earning 20 electoral votes, and in Texas, earning 38 votes. Clinton still won the popular vote in those three states combined; however, with 58 over 54 electoral votes in those key states, Trump won the presidency.

What if there is a challenge to the Electoral Count Reform Act at the state or federal level? 

The 2024 election is the first presidential election to occur under the new Electoral Count Reform Act. It aims to clarify vague language in the Constitution that resulted in legal confusion during and after January 6, 2021.

State level: What remains in place from the original law is that if a presidential candidate disagrees with the election results, they must prove in court that either the electors’ votes were made or counted in some irregular way or that the electors themselves were not certified as required — the only two possible legal issues. Each elector must receive official “Certificates of Ascertainment” from their state. What did change with the ECRA is a faster way to settle the disputes, with three federal court judges ruling, and, if appealed, an expedited process to go directly to the Supreme Court — all before “safe harbor” day (six days before electors meet).

Federal level: As outlined by the U.S. Constitution, once all results of state electors’ votes are in, Congress officially counts state votes on January 6 the following year. The current vice president oversees this process. The ECRA enacted two significant additions to attempt to strengthen this process: 1. The vice president was traditionally assumed to hold a ceremonial role in accepting the states’ votes and new presidency, but the new act has now shored up language to define the vice president’s actions as strictly “ministerial,” or without power to reject the vote. 2. Members of Congress may object to the states’ votes and separate to debate each objection. Before the ECRA, one member’s objection could result in these debates and stall the final result. Under the new ECRA, one fifth of the members in the House and one fifth of the members of the Senate must agree to object before any debate would proceed. These numbers of objections to the votes have not occurred before, including in 2020.

Sources:

Brennan Center for Justice: “The Electoral College Explained”
Brennan Center for Justice:  “How Electoral Votes Are Counted for the Presidential Election”
Protect Democracy: “A Contingent Election, Explained”
Congressional Research Service: “Electoral College Overview”
National Archives: Frequently Asked Questions: “What Happens if No Presidential Candidate Gets 270 Electoral Votes?”
National Conference of State Legislatures: “The Electoral College”
National Conference of State Legislatures: “Resolving Tied Elections for Legislative Office”
How the Electoral College Works and Why It Exists | One Person, One Vote? | Independent Lens | PBS