Electoral Votes versus Popular Votes

There is a renewed interest in the Electoral College across the US right now. Many people are disenfranchised with their party’s candidate, and are wondering whether or not voting for a third party candidate will help or hinder the other party.

The big question out there is can a candidate win without 50% of the popular vote? And how does the Electoral College really work? There are a lot of people out there right now unhappy with both Trump and Clinton, and are turning to Johnson out of desperation. But does Johnson have a chance at winning? Or will his presence make a real difference in keeping someone else from winning? There are even people who hope that maybe former Governor Mitt Romney could somehow win as a write-in candidate.

The bottom line is this- right now, it is very possible that the Electoral College results will not reflect the popular vote. And it is also very possible that if enough people continue to show their support for a third party candidate, that the electoral college will not produce a winner, and the presidency will be determined by the lame duck Congress and Senate.

But we’re getting ahead of ourselves. Let’s start back at the beginning.

Instead of selecting a president based on how many votes they receive, the Founding Fathers established what's called the Electoral College. Each state gets the same number of electors as it has Congressmen and Senators -- and the bigger the state, the more electors it has.  (In all but 2 states (Maine and Nebraska), the winner of the popular vote will get all of the Electoral College votes.)

There are a total of 538 electors. A candidate needs the vote of more than half (270) to win the Presidential election. There is no Constitutional provision or Federal law that requires Electors to vote according to the results of the popular vote in their states. Some states, however, require Electors to cast their votes according to the popular vote. These pledges fall into two categories—Electors bound by state law and those bound by pledges to political parties*. Throughout history more than 99 percent of Electors have voted as pledged.

It is possible to win the presidency without winning the popular vote. In 2000, President George W. Bush lost the popular vote to Vice President Al Gore by .51% but won the Electoral College 271 to 266.  (Who voted that year and doesn’t remember the significance of the “hanging chad?”)

In 2012 President Barack Obama got 51% of the nationwide votes, narrowly defeating Governor Mitt Romney in the popular vote. But those votes translated into 61% of the Electoral College votes, giving the illusion of an overwhelming victory.  Winning in key states with the larger number of electoral votes matters.

As of 5pm Eastern time on July 27, 2016, neither Donald Trump or Secretary Hillary Clinton has over 50% of the popular vote according to polls. As of this moment, Real Clear Politics polling average shows Trump at 45.7% and Clinton at 44.6%.  If you change it to a 3-way race, and include Governor Gary Johnson, it changes to Trump 39.6, Clinton 39.2, and Johnson 8.6.

It is of great significance that if you then translate those votes into electoral votes that the situation shifts into Clinton’s favor. According to the popular website “270 to win” Clinton currently has 241 electoral votes, while Trump only has 105, with 125 “toss up” votes too close to determine. (Which means Trump and Clinton are within 5 percentage points of each other, making it too close to call.) Those 125 votes will easily give Clinton the remaining 29. (All she has to do is win Florida to make that happen.)  Obviously, the Trump campaign will do everything in its power to gain traction in those gray states.  Johnson does have a fighting chance in Utah and New Mexico, but the 11 votes between the two states won’t make much of a difference.

Real Clear Politics shows Clinton/Kaine with 202 electoral votes, Trump/Pence with 164, and 172 toss up votes. RCP was updated as of July 25, 270 to win was update July 19.

But we have to go back to the importance of the difference between the words majority and popular. Remember that only 2 states divide up the electoral votes to represent the popular votes. All of the other states are winner-takes-all. In other words, a vote for a third party candidate could throw the election in favor of a different party in those states.

But let’s keep going with the “what if” game. What if no one gets enough electoral votes? It’s highly unlikely at this point, but in this completely unprecedented election year, anything could happen.

What happens if no one wins the Electoral College? What happens next? If no candidate receives a majority of Electoral votes, the House of Representatives elects the President from the 3 Presidential candidates who received the most Electoral votes. Each state delegation has one vote. (In other words, forget drafting Mitt Romney. He could only win as a write-in, and not in the Electoral College.)

The Senate would elect the Vice President from the 2 Vice Presidential candidates with the most Electoral votes. (In other words, Johnson’s running mate, Gov. Bill Weld, has almost no hope of winning an office.) Each Senator would cast one vote for Vice President. If the House of Representatives fails to elect a President by Inauguration Day, the Vice-President Elect serves as acting President until the deadlock is resolved in the House. 

I won’t decide for you whether or not voting third party will make a difference in this election. Everyone should vote their conscience and for the candidate they believe in. And no one interested in voting third party should be discouraged by this information. If there is anything we have learned in this election cycle it’s that the unbelievable, unprecedented, and impossible can happen. And we’ve definitely seen that there are people out there who aren’t happy with the status quo. If enough people forget about loyalty to labels and vote their conscience, this could be the year that the Electoral College changes.

*One last thought- It could also be the year that the Electoral College doesn’t follow historic precedent. There is no federal law that requires electors to vote as they have pledged. Twenty-nine states and the District of Columbia have legal control over how their electors vote in the Electoral College. This means their electors are bound by state law and/or by state or party pledge to cast their vote for the candidate that wins the statewide popular vote. At the same time, this also means that there are 21 states in the union that have no requirements of, or legal control over, their electors. Therefore, despite the outcome of a state’s popular vote, the state’s electors are ultimately free to vote in whatever manner they please, including an abstention, with no legal repercussions.

What happens if an Elector violates the state law? It’s a misdemeanor or small fine, usually only $1,000.

The states where Electors are bound – Alabama, Alaska, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Maine, Maryland, Massachusetts, Michigan, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, Wisconsin, Wyoming.
Notable battleground states where Electors are not bound- Florida and Georgia.

The Declaration of Independence

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.


He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.