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In the electoral vote, complications abound

As Americans learned in 2000, the process of choosing a new president continues after the voters cast their ballots on Election Day.'s Tom Curry offers a guide to some of the electoral fine print.
Will it be a reprise on Jan. 20, 2005, or will John Kerry be standing across from Chief Justice Rehnquist?
Will it be a reprise on Jan. 20, 2005, or will John Kerry be standing across from Chief Justice Rehnquist?Joe Raedle / Getty Images file
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As Americans learned in 2000, the process of choosing a new president continues after the voters cast their ballots on Election Day.

Here's a guide to some of the electoral fine print.

In next Tuesday’s elections, will Americans be voting for candidates or electors?
Americans will be voting in each state and in the District of Columbia for 538 electors, who in turn will cast votes on Dec. 13 for candidates to whom they are pledged.

If, for instance, you live in New Hampshire and you cast your vote for John Kerry, you will be voting for a slate of four Kerry-pledged electors: Jeanne Shaheen, Peter Burling, Judy Reardon and James Ryan.

In some states, the electors’ names appear on the ballot along with the presidential candidates’ names. In other states, the electors' names do not appear on the ballot.

How many electoral votes does it take to win the presidency?

How are the 538 electoral votes allotted?
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. A state’s population determines the number of its House members. Missouri, for instance, has nine members of the House and therefore has 11 electoral votes.

No matter how small a state’s population, it gets at least three electoral votes.

Wyoming, with a voting age population of 370,000, has three electors. California, with a voting age population of 24.4 million, 66 times bigger than Wyoming’s, has 55 electors, only 18 times as many electors as Wyoming has.

This bonus for small states was one of the compromises made at the constitutional convention in 1787 in order to persuade the states with smaller populations to join the Union.

Regardless of whether a candidate wins 52 percent of the votes in a state, or, in a multi-candidate race, say, 40 percent of the votes in a state, why does he get 100 percent of that state’s electoral votes?
Forty-eight states have laws that mandate a winner-take-all system for electoral votes: The person with the statewide plurality (even if it isn’t a majority) gets all the electoral votes.

In the 1968 election, for example, Richard Nixon, competing with two other candidates, Hubert Humphrey and George Wallace, won only 38 percent of the vote in Tennessee, but he got all of Tennessee’s electoral votes.

Maine and Nebraska do not use the winner-take-all system. In those two states, 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.

How is it possible for a candidate to lose the nationwide popular vote and yet win the electoral vote?
He can do so by amassing huge vote margins in states in which his party is dominant, while losing other states narrowly. In 2000, Al Gore won California with nearly 1.3 million votes to spare, but lost New Hampshire by only 7,211.

What does the Constitution say about choosing electors?
Article Two of the Constitution says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress….”

Is it entirely up each state’s legislature to decide how electors are chosen?
Yes. A legislature could for instance, appoint a specific group of electors, such as retired judges, could choose electors randomly from the state’s population, or 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.

Isn’t the Electoral College system undemocratic, since it does not permit the American people to directly choose their president?
Yes, it is undemocratic. But the Framers of the Constitution did not want a system in which the president was chosen directly by the voters. “The people are uninformed and would be misled by a few designing men,” said Massachusetts delegate Elbridge Gerry during the debate at the constitutional convention. (Gerry ended up not signing the Constitution.)

Since 1789, no majority in Congress and in the state legislatures has been able to muster enough support to change the system.

What was the original intention of the Framers as to the role of the electors?
“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, (is) that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices,'' Supreme Court Justice Robert Jackson wrote in 1952.

But the system has evolved into something different from what the Framers intended: electors today are almost always rubber stamps, chosen by their party to vote for its nominee.

Once they are chosen, what do each state’s electors do?
On Dec. 13, in each state’s capitol, the state’s electors will meet to officially cast separate ballots for president and for vice president.

For instance, if the Kerry-Edwards ticket has won the most popular votes in New York on Nov. 2, the state’s 31 Kerry electors would meet in Albany on Dec. 13 and cast their votes for him and John Edwards.

Why do the electors gather in their separate states and not as a group in Washington, D.C.?
The Framers of the Constitution feared that, in the words of Alexander Hamilton, if the electors all met in one place, they would be vulnerable to “cabal, intrigue and corruption” and that foreign governments who sought “to gain an improper ascendant in our councils” might bribe or coerce electors.

Also, Hamilton warned, electors would be more prone to “heats and ferments, which might be communicated from them to the people” if they met in one place.

Can an elector pledged to vote for a candidate cast his or her vote for someone else?
Yes. Since the first election in 1789, ten electors have violated their pledge to vote for a presidential candidate.

In 1948, for example, Tennessee elector Preston Parks was pledged to the Democratic candidate, President Harry Truman, but instead cast his vote for States’ Rights presidential candidate Strom Thurmond.

Can an elector be punished for breaking his pledge?
In some cases he could be: according to the National Conference of State Legislatures, 29 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. The constitutionality of such laws has never been tested in court.

What role does Congress have in the electoral process?
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 immediately 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.

What happens if the electoral vote ends up in a 269-269 tie or in a multi-candidate field, no candidate gets 270?
The Twelfth Amendment to the Constitution says that if no candidate gets “a majority of the whole number of Electors appointed” then “from the persons having the highest numbers not exceeding three on the list of those voted for as President” the House of Representatives shall choose a president.

Each state’s delegation in the House has one vote. So, for example, California’s 53 members of the House would caucus and vote. Since there are more Democratic House members from California than Republican members, California’s one vote would likely go to the Democratic candidate.

What if both the electoral vote for president and vice president are tied at 269?
The House would choose the president and the Senate would choose the vice president. In the Senate each senator would have one vote. So it is possible that if there were a Democratic-controlled Senate, it would pick John Edwards as vice president, even if the House picked George Bush as president.

How many times has the House of Representatives chosen a president?
Twice, in 1801, when it chose Thomas Jefferson, and 1825, when it chose John Quincy Adams.

The 1968 election came close to being thrown into the House when Nixon received 301 electoral votes, Humphrey 191 and Wallace 46. Had there been a shift of three percent of the vote in Illinois and four percent in Tennessee, Nixon would have lost both those states and would have wound up with 264 electoral votes, six short of the number required.

What would happen if a state, due to litigation and ballot disputes, can’t finish its vote count and therefore can’t choose its electors by the date on which electors are supposed to meet, Dec. 13?
It is likely that the legislature of that state would appoint a slate of electors, rather than allowing the state to lose the opportunity to have some voice in election.

After the prolonged Florida recount in 2000, some states passed laws to ensure that electors would be chosen. For example, North Carolina law provides that if the choice of electors has not been certified six days before the electors are to meet, the legislature may appoint electors. If the electors have not been appointed by noon on the day they are to meet, the law says the governor shall appoint them.

What would happen if one of the candidates died right before the Dec. 13 meeting of the electors?
“That would throw everything into a great state of confusion,” said Yale Law School professor Akhil Amar at a recent panel discussion in Washington on the electoral vote system.

“It becomes an even bigger conundrum if after the electors have met and chosen a president and vice president, something happens to the president-elect and vice president-elect, then you don’t have an opportunity for the electors to choose substitutes,” said Norman Ornstein, resident scholar at the American Enterprise Institute. “Then the alternative is to go to Congress on Jan. 6, either disregarding those votes and letting the loser win, or counting those votes and ending up with a vacancy on Jan. 20 and having the Speaker of the House become president.”

Has Congress ever considered scrapping the Electoral College system?
Yes, in 1969 the House approved a proposed constitutional amendment to abolish the Electoral College and to provide for direct popular election of the president, with a minimum of 40 percent of the popular vote required and a runoff election between the top two finishers, if no one got 40 percent.

The proposed amendment was killed in the Senate by senators from small states and Southern states.