The president of the United States is technically elected by what’s known as the Electoral College.
The term “Electoral College” does not appear in the Constitution but was written into federal law in 1845, and appears in the United States Code (3 U.S.C. section 4), as "college of electors." The college is made up of the members of the U.S. House of Representative and the U.S. Senate, plus three votes for the District of Columbia (courtesy of the 23rd amendment). There are currently 435 members of the House and 100 members of the Senate for a total of 538 electors.
In order to win the presidency, a candidate must receive the majority of those elector votes, or 270 votes.
What voters in each state and in the District of Columbia really cast their ballots for on Nov. 4, 2008 is for a slate of electors in their state.
On the California ballot, for instance, a slate of 55 California Democratic electors will be pledged to the Democratic presidential candidate and a slate of 55 California Republican electors pledged to the Republican candidate. A voter will chose one slate or the other (or perhaps the slate of a third party). In some states, the electors’ names appear on the Nov. 4 ballot along with the presidential candidates’ names. In other states, the electors' names do not appear on the ballot.
How many electors in each state?
Article Two of the U.S. Constitution says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” equal to the number of senators and representatives to which the state is entitled in the Congress. The Constitution does not say how those electors should be chosen. A legislature could for instance, appoint a specific group of electors, such as retired judges, or it could choose electors randomly from a list of the state’s registered voters, or it could say the presidential candidate who wins the most votes nationwide would get all of that state’s electoral votes. The Constitution does not require that electors be chosen to reflect the popular vote in that state, although the tradition of following the popular vote is well established.
A process called re-apportionment is used to allocate the members of the House. An apportionment has been made the basis of the decennial Census from 1790 to 2000, except following the 1920 census. After the Census, states which have gained population get additional seats in the House of Representatives; states which have lost population or lagged in growth lose seats. In 1940, for instance, New York had 45 members of the House; now it has only 29.
This allotment of House seats is reflected in how electoral votes are allocated. Each state gets a number of electors equal to the number of its members of the House of Representatives plus the number of its senators, (always two). So, Tennessee, for example, with two senators and nine representatives, has 11 electoral votes.
Splitting up the vote
In 48 states and the District of Columbia all of that state’s electors go to whichever candidate receives the most votes statewide (citywide in the case of the District of Columbia). In Maine and Nebraska one elector is awarded to the candidate receiving the most votes in each of the congressional districts, and the remaining two electoral votes are awarded to whoever gets the most votes statewide.
As a consequence, it is possible for a candidate to win the nationwide popular vote and lose the all-important electoral vote by amassing big vote margins in states in which his party is dominant, while losing other states narrowly.
Once chosen on Election Day, those electors then meet in their respective state capitols on Dec. 15, to cast separate votes for the presidential and vice presidential candidates. The electors however are not always required to cast their votes for the candidate they are pledged to. Twenty-five states and the District of Columbia have laws binding electors. In some states the penalty for electors who do not vote for the candidate to whom they are pledged is severe: In North Carolina, for example, an elector who breaks his pledge can be fined $10,000.
Since the first election in 1789, ten electors have decided to vote for a presidential candidate other than the one to whom they were pledged. In 1948, for example, Tennessee elector Preston Parks was pledged to the Democratic candidate, Harry Truman, but instead cast his vote for States’ Rights presidential candidate Strom Thurmond. It didn’t affect the outcome of the election, as Truman won with 303 electoral votes.
Congressional action
Following the Dec. 15th electors vote, Congress meets in joint session on Jan. 6 to count the votes of the electors. If at least one member of the House and one member of the Senate object to any electoral votes from a state, then the House and Senate each go into separate sessions to debate and vote on the contested electoral votes. Both the House and the Senate must vote to reject the challenged electoral votes in order for them to be rejected.
If the electoral vote ends up a tie – 269-269 for example – or in a multi-candidate field where no candidate gets the required majority of the electors, the Twelfth Amendment to the Constitution says the House of Representatives shall choose a president from among the top three vote-getters.
In such a situation, each state’s delegation in the House has one vote. So, for example, California’s 53 members of the House would caucus and vote as a bloc. Since there are more Democratic House members from California than Republican members, California’s one vote would likely go to the Democratic presidential candidate.
The House of Representatives has been placed in this situation twice; in 1801, when it chose Thomas Jefferson, and 1825, when it chose John Quincy Adams.