Historical Overview

1. Origin of the Electoral College Concept

While our Constitution was being drafted in 1787, a debate arose over how our new country would select its chief executive. The original plan considered having Congress elect the president and vice president, but many delegates opposed such a parliamentary system. They were worried about corruption, foreign influence, and the ability of the executive branch to retain independence from the legislative branch. They also had concerns about direct democracy, with fears that one state would garner too much influence in the Union or that people wouldn’t have enough information about candidates in some areas of the country.

Given the fears and disagreements, the Founding Fathers sought a compromise between electing the president by popular vote and a vote by Congress.

The framers of our Constitution finally agreed on the concept of electors. After rejecting an idea to have the governors of each of the existing 13 states choose the president, they imagined what turned out to be the institution of the Electoral College. The framers thought a decentralized group of electors that met only once in an election year would be less subject to outside influence, and less likely to have outsized influence over a candidate seeking reelection.

They had discussions about allowing the state legislatures to appoint the electors, but some delegates worried about the possibility of political factions working for their own interests, rather than choosing the best electors. As a result, the decision of how the electors would be selected was left up to each individual state. Alexander Hamilton, an early proponent of the use of electors, wrote in 1788 about the chosen method of electing the president, “I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent.”

2. Electors in the Constitution

The elector concept became Article II, Section 1 of the US Constitution (signed in convention Sep. 17, 1787, ratified June 21, 1788):

“The executive Power shall be vested in a President of the United States of America.

He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector…

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

While many states originally had the state legislature appoint electors, a majority of states had implemented the popular vote by 1824. The last state to allow its legislature to choose the electors was Colorado in 1876; its entry to the Union just three months before the election made it impossible to get a statewide vote in place.

The term “Electoral College” does not appear in the Constitution. It is believed to come from James Madison’s brainstorming about a “college” of “electors” during deliberations at the Convention. Newspapers reportedly referenced the name starting in the early 1800s. Congress first put the term “college of electors” into law in 1845, when it set a nationwide date for the presidential election (the first Tuesday after the first Monday in November).

3. Constitutional Amendments to the EC

Article II, Section 1 of the US Constitution stated that electors would each cast two votes, and the candidate with the highest number of electoral votes, “if such Number be a Majority of the whole Number of Electors appointed,” was elected president. The person with the second-highest number became vice president.

Within four elections, the system broke down. The framers had not accounted for the rise of political parties, which by 1796 were running joint tickets for president and vice president. In the election of 1800, there were 73 Democratic-Republican electors and 65 Federalist electors. The Democratic-Republican electors each cast their two votes for their party’s presidential and vice presidential candidates, causing a tie between Thomas Jefferson and Aaron Burr and sending the election to the House of Representatives. The House needed 36 votes to name Jefferson the winner.

Constitutional amendments became necessary to iron out some wrinkles in the presidential election process.

The 12th Amendment (ratified June 15, 1804) implemented separate electoral ballots for the offices of president and vice president:

“The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President…

The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed… The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed.”

The 14th Amendment (ratified July 9, 1868) was written in the context of post-Civil War America and added a disqualifying factor for being chosen as an elector:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

The 23rd Amendment (ratified Mar. 29, 1961) gave Washington, DC, three electoral votes despite its lack of voting representation in Congress:

“The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.”

4. Electoral College and Electors in the Supreme Court

The Electoral College (EC) has been referenced by name in 23 Supreme Court rulings since the Court was established in 1790. Most of those cases (18 of 23) do not directly relate to the EC. Instead, the term appears in the opinions (majority, concurring, or dissenting) as an analogy, an example of a government function, or a reference to the US Constitution.

The Supreme Court has ruled eight times on the EC, with five rulings that reference it by name, and three (In re Green, Burroughs & Cannon v. United States, and Colorado Department of State v. Baca) rulings that did not contain the term “Electoral College” but pertained to electors. Summaries of these cases are presented below.

There may be additional cases related to the Electoral College in the Supreme Court that our research did not uncover. If you know of any, please contact us.

I. In re Green, 134 US 377 (1890)

This case concerned state versus federal jurisdiction for prosecuting someone who voted illegally in the presidential election. While the ruling did not impact the workings of the Electoral College, it did lay out how electors are viewed in connection to states and the federal government:

“The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation. Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress.”

The Court also referenced the power of states in selecting electors when it wrote, “Congress has never undertaken to interfere with the manner of appointing electors.” This case is later cited by McPherson v. Blacker (1892), Burroughs & Cannon v. United States (1934), Ray v. Blair (1952), and Bush v. Gore (2000).

The case was remanded to lower courts for further proceeding; the vote count for the ruling is not available.

II. McPherson v. Blacker, 146 US 1 (1892)

Electors in Michigan sued the state over its mechanism of allotting electors based on districts, rather than appointing electors to the statewide vote winner.

The Court ruled per curiam that Michigan was allowed to allocate electors by district, affirming that the US Constitution “has conceded plenary power to the state legislatures in the matter of the appointment of electors.” The ruling stated that Congress is empowered to decide the date electors are chosen and when they meet to vote, but all other power resides with the states, whose legislatures can chose the method of appointing electoral votes.

As of 2020, only Maine and Nebraska distribute electoral votes based on the popular vote winners in Congressional districts; all other states and DC appoint electors using the “winner-take-all” method.

III. Burroughs & Cannon v. United States, 290 US 534 (1934)

James Cannon Jr. and Ada L. Burroughs were charged with financial crimes under the Federal Corrupt Practices Act (FCPA) pertaining to a political election committee seeking to influence the presidential election.

The Court ruled 8–1 upholding the indictments, stating that Congress had the power to “pass appropriate legislation to safeguard [a presidential] election from the improper use of money to influence the result.”

The ruling hinged on the fact that while In re Green said electors are not federal officers or agents, their Electoral College duties are conferred by the US Constitution, so Congress had the power to safeguard the presidential election from corruption with the FCPA. However, regarding electors, the Court said Congress was only conferred the power to determine the time the electors were chosen and when they met to vote.

IV. Ray v. Blair, 343 US 214 (1952)

The case was brought by an aspiring Democratic party elector in Alabama, Edmund Blair, who was rejected because he refused to sign a pledge reading, “By casting this ballot I do pledge myself to abide by the result of this primary election and to aid and support all the nominees thereof in the ensuing general election.”

The Court ruled per curiam that states could allow a state political party to require pledges from electors to vote for the party’s nominee because, “It is an exercise of the state’s right to appoint electors in such manner, subject to possible constitutional limitations, as it may choose.”

The issue of what means could be used to enforce a pledge was not addressed in this case. Following the ruling, states began creating laws to bind electors to vote in accordance with the results of the general election. In 33 states and Washington, DC, electors are bound by law or oath to vote for their party’s candidate, as of Dec. 2020.

V. Department of Commerce v. Montana, 503 US 442 (1992)

Following the US Census in 1990, seats in the House of Representatives were reapportioned as required by law. Increased populations in California, Florida, and Texas meant that Montana lost two of its seats. Montana sued over the method of apportionment used to allocate Congressional representation.

Congressional apportionment directly impacts the number of electoral votes that a state gets in the presidential election. A footnote in the Court’s ruling explained, “Not only is the composition of the House of Representatives implicated by the case, but also the composition of the electoral college that elects the President. That college includes representation from each State equivalent to the sum of its Senators and Representatives.”

The Court ruled 9–0 against Montana’s argument, upholding the method of apportionment that had been used for 50 years at that time (and continues to be used today).

VI. Bush v. Gore, 531 US 98(2000)

The closely contested 2000 presidential election between George Bush (Republican) and Al Gore (Democrat) came down to Florida’s 25 electoral votes. After Florida had declared Bush the winner, the Florida Supreme Court ordered a hand recount of 9,000 ballots in Miami-Dade County as well as the inclusion of 215 votes for Gore from Palm Beach County and 168 in Miami-Dade County. Bush successfully filed in the US Supreme Court for review and a stay of the Florida Supreme Court’s recount order.

The Court ruled per curiam (7–2, with Ginsburg and Stevens dissenting) that Florida’s plan to recount ballots was unconstitutional. The Court also ruled 5–4 that there was no way to implement a recount before the deadline for appointing electors.

While the case was primarily about Florida’s electoral votes, the ruling affirmed McPherson v. Blacker in saying that states retained the power to determine how electors are appointed. The per curiam opinion said, “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college… The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.”

VII. Chiafalo v. Washington, 591 US ____ (2020)

Three electors in Washington state were fined $1,000 each when they did not vote for Hillary Clinton in the 2016 presidential election as they had pledged to do, an action known as being a “faithless elector.” Those electors argued that the US Constitution gave them the right to vote however they chose.

The Court ruled 9-0 that “A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President,” meaning that states are allowed to punish or replace faithless electors. The Court cited McPherson v. Blacker and Ray v. Blair in upholding states’ rights regarding appointment of electors and noted, “Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does.”

VIII. Colorado Department of State v. Baca, 591 US ____  (2020)

Electors in Colorado sued after Michael Baca was replaced as an elector because he cast his vote for John Kasich in the 2016 election rather than Hillary Clinton, who won the popular vote in the state. The Tenth Circuit court ruled in favor of Baca, finding his removal as an elector unconstitutional.

The US Supreme Court reversed that decision in a per curiam unsigned opinion. The judgment simply stated that the case was decided based on the reasons stated in Chiafalo v. Washington. Sotomayor recused due to an existing friendship with one of the parties.

The elector process has been in place for every US presidential election, and 99% of electors have voted as pledged over the history of the nation. Of the 59 presidential elections since 1789, 54 of those elections (91.5%) were won by the candidate with the most popular votes. In five elections (8.5%)—1824, 1876, 1888, 2000, and 2016—the winner of the electoral vote had fewer popular votes.

Sources:

1. 28th US Congress, “An Act to Establish a Uniform Time for Holding Elections for Electors of President and Vice President in all the States of the Union,” loc.gov, Jan. 23, 1845
2. 270toWin, “Split Electoral Votes in Maine and Nebraska,” www.270towin.com (accessed Dec. 30, 2020)
3. Nancy Benac, “Founding Fathers distrusted popular vote to pick a president,” apnews.com, Dec. 15, 2016
4. Scott Bomboy, “Electoral College a rare topic of discussion at Supreme Court,” constitutioncenter.org, Dec. 20, 2016
5. Burroughs and Cannon v. United States, 290 U.S. 534, courtlistener.com, Jan. 8, 1934
6. Bush v. Gore, 531 U.S. 98, courtlistener.com, Dec. 12, 2000
7. Chiafalo v. Washington, 19-465, courtlistener.com, July 6, 2020
8. Colorado Dept. of State v. Baca, 19-518, courtlistener.com, July 6, 2020
9. Congressional Research Service, “Supreme Court Clarifies Rules for Electoral College: States May Restrict Faithless 7. Electors,” crsreports.congress.gov, July 10, 2020
10. Joseph Connor, “The Electoral College: The Least Worst Way to Select a President,” historynet.com, Feb. 2020
“The Constitution,” constitutioncenter.org (accessed Dec. 21, 2020)
11. Department of Commerce v. Montana, 503 U.S. 442, courtlistener.com, Mar. 31, 1992
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13. Allen Guelzo and James Hulme, “In defense of the electoral college,” washingtonpost.com, Nov. 15, 2016
14. Alexander Hamilton, “Federalist No. 68,” guides.loc.gov, Mar. 14, 1788
15. In Re Green, 134 U.S. 377, courtlistener.com, Mar. 24, 1890
16. Legal Information Institute, “Electoral College,” law.cornell.edu (acceded Dec. 30, 2020)
17. Linda Greenhouse, “Supreme Court Upholds Method Used in Apportionment of House,” nytimes.com, Apr. 1, 1992
18. Adam Liptak, “States May Curb ‘Faithless Electors,’ Supreme Court Rules,” nytimes.com, July 6, 2020
19. McPherson v. Blacker, 146 U.S. 1, courtlistener.com, Oct. 17, 1892
20. Joe Miller, “The Reason for the Electoral College,” factcheck.org, Fev. 11, 2008
21. National Archives and Records Administration, “About the electors,” archives.gov (accessed Dec. 22, 2020) 
22. National Conference of State Legislatures, “Debating the Electoral College,” ncsl.org, Mar. 24, 2020
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24. Pearson Education, “Presidential Selection: The Framers’ Plan,” assets.pearsonschool.com (accessed Jan. 19, 2021)
25. Ray v. Blair, 343 U.S. 214, courtlistener.com, Apr. 15, 1952
26. Jeffrey Rosen, “America Is Living James Madison’s Nightmare,” theatlantic.com, Oct. 2018
27. Joshua Spivak, “The electoral college is a failure. The Founding Fathers would probably agree.,” washingtonpost.com, Apr. 7, 2019
28. U.S. Election Assistance Commission, “The Electoral College,” eac.gov, Jan. 2011
29. Keith E. Whittington, “Trump’s scheme for state legislatures to overturn the election won’t work,” washingtonpost.com, Nov. 20, 2020
30. John A. Zadrozny, “The Myth of Discretion: Why Presidential Electors Do Not Receive First Amendment Protection,” Journal of Communications Law and Technology Policy, 2003