Wednesday, July 27, 2016

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.


  1. Maine and Nebraska do not divide up the electoral votes to represent the popular votes.

    Maine (since enacting a state law in 1969) and Nebraska (since enacting a state law in 1992) have awarded one electoral vote to the winner of each congressional district, and two electoral votes statewide.

    Obama won 1 congressional district in Nebraska in 2008, period. That was the only electoral vote for a minority party in a state in the past century. Otherwise, all of the Maine and Nebraska electors have been for the winner of their state.

    1. I don't know where you got your information. But my source was the National Archives' page on the Electoral College. It states clearly that Nebraska and Maine are proportional.

    2. Awarding only 1 electoral vote from the 2 states since 1969 and 1992 does not mean they "divide up the electoral votes to represent the popular votes." The popular vote has not been divided.

      In 2012,
      39% of Nebraska did not vote for Romney.
      No electoral votes from Nebraska were awarded to Obama.
      42% of Maine voted for Romney.
      No electoral votes from Maine were awarded to Romney.

      They have both awarded all of their electoral votes to the winner of their state, except in the single case in 2008.

  2. Now 48 states have winner-take-all state laws for awarding electoral votes, 2 have district winner laws. Neither method is mentioned in the U.S. Constitution.

    There have been 22,991 electoral votes cast since presidential elections became competitive (in 1796), and only 17 have been cast in a deviant way, for someone other than the candidate nominated by the elector's own political party (one clear faithless elector, 15 grand-standing votes, and one accidental vote). 1796 remains the only instance when the elector might have thought, at the time he voted, that his vote might affect the national outcome.

    The electors are and will be dedicated party activist supporters of the winning party’s candidate who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges.

    The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).

    1. Again, here is the source at the National Archives on the issue -

  3. By changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes, the National Popular Vote bill would guarantee the presidency to the candidate who receives the most popular votes in the country.

    Every vote, everywhere, would be politically relevant and equal in every presidential election. No more distorting and divisive red and blue state maps of pre-determined outcomes. There would no longer be a handful of 'battleground' states (where the two major political parties happen to have similar levels of support among voters) where voters and policies are more important than those of the voters in 38+ predictable states that have just been 'spectators' and ignored after the conventions.

    The bill would take effect when enacted by states with a majority of the electoral votes—270 of 538.
    All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes in all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.

    The bill has passed 34 state legislative chambers in 23 rural, small, medium, large, red, blue, and purple states with 261 electoral votes.
    The bill has been enacted by 11 small, medium, and large jurisdictions with 165 electoral votes – 61% of the 270 necessary to go into effect.



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