By Angelina Clapp (JMU ’20, Political Science), Democracy Program Fellow
Electors will officially meet to cast their votes on December 14, 2020. Here’s a brief history of the Electoral College and an overview of pending legal challenges in the 2020 Elections.
History of the Electoral College
Creating a procedure for how the country’s executive would be chosen was a consequential task for the framers of the U.S. Constitution. The Electoral College was born out of a compromise of ideas between the election of the president by popular vote and the election of the president by the Congress.
There is also evidence that the Electoral College was born out of the racist ideas held by those men who created it. When discussing the details of this new electoral system, James Madison acknowledged, “the people at large was in his opinion the fittest,” but also noted that a popular vote system would mean political and power disadvantages for the South:
There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections.
The Northern states and Southern states had roughly an equal population size when including enslaved people from the south. However, since enslaved people could not vote, the North would have had a larger amount of voting power than the South due to its larger population size. The Electoral College was created to address this issue. The three-fifths clause was also leveraged to give Southern states more political power as three out of every five enslaved persons were counted as “people” for purposes of both congressional representation and electoral votes. Designed to empower Southern Whites, the Electoral College continues to have an adverse impact on Black voters, who are concentrated in the South, diluting their political power.
Electors
When they cast a ballot, American voters actually cast their vote for electors, not the presidential candidates. In each state, whichever candidate receives a plurality of the vote receives the votes of the electors. State legislatures appoint electors that are equal to the number in its congressional delegation. Electors are individuals who are usually leaders within a specific political party and are highly respected. Faithless electors are a rare occurrence because it would reflect poorly on the individual and their party. In fact, throughout history more than 99 percent of electors have voted in line with the will of the people. Additionally, most states require their electors to vote according to the will of the people. They can either be bound by state law or by pledges to their individual parties and if they break those laws they can be fined and replaced with a substitute elector. The Supreme Court has ruled these faithless elector laws to be Constitutional.
If no presidential candidate received the 270 electoral votes needed to win the presidency, a contingent election would be held. In this case, the election of the president falls upon the House of Representatives, where each of the state representatives cast one vote to determine the winner.
Because of the arcane intricacies and complexities of the Electoral College, there have been bids to replace it. However, none of these have ever come to fruition. The closest Congress came to amending the process was in 1969. The House passed a resolution that planned to change the process so that the president would be directly elected and would require a runoff in the event that no candidate received 40 percent or more of the vote. The resolution failed in the Senate and there have been no more major bids to change the system since then.
The National Popular Vote Interstate Compact is another movement working to guarantee that the popular vote elects the president. The National Popular Vote bill has been enacted by 15 states and the District of Columbia and will go into effect once 74 more electoral votes from states have been enacted. If enough states enact this, then every voter in America will receive a vote for a group of 270 electors that support their presidential choice. This avenue is more direct than the current system, but still leaves the electoral college intact.
Legal Challenges to Electoral College
The conversation around the Electoral College is political and polarized. There have been multiple legal challenges from states in regards to the Electoral College and possibly changing their system of voting. Some of these include:
- A 2018 lawsuit that was dismissed by a Massachusetts judge claiming that the winner take all system of the electoral college violates the “one person, one vote” principle. The lawsuit argued that the winner-take-all system disenfranchised Americans who voted for the losing candidate and places too much weight on select battleground states. However, the judge ruled that this electoral system complies with the equal protection clause because “it does not inherently favor or disfavor a particular group of voters.”
- The group “Equal Votes” was created to present legal challenges to the winner-take-all system that 48 states adhere to. Equal Votes claims that this system disenfranchises large groups of voters and encourages presidential candidates to skip entire states while on the campaign trail.
Can state legislatures appoint their own slate of politically preferred electors after the election?
No, they cannot. According to the National Task Force on Election Crises, “State legislatures may not substitute their judgement for the will of the people by directly appointing their preferred slate of electors. Nor may they use delays in counting ballots or resolving disputes as a pretext for usurping the popular vote. Doing so would violate federal law and undermine fundamental democratic norms.” The Electoral Count Act states in its “Safe Harbor” provision that states must satisfy two criteria: “1) electors must be chosen under laws enacted prior to election day and 2) the selection process must be completed six days prior to the meetings of the electors.”
2020 Election Legal Challenges
Numerous dubious claims of voter fraud in the 2020 Election have been exacerbated by the fact that President Trump has declared himself the winner and is refusing to concede. As a direct outcome of these claims, the Trump campaign has filed multiple lawsuits to question the validity of the Electoral College. The Trump campaign has launched a multitude of legal battles in key states for things ranging from election observers to the use of sharpie pens. Some of these lawsuits include:
Pennsylvania
- Lawsuits filed by the Trump Campaign range from fighting the Supreme Court’s decision to allow ballots postmarked by Election Day to be counted up to 12 days after election day; claims that Republican observers could not watch votes being counted; and attempting to stop provisional ballots from being cast in place of defective mail in ballots.
- In a symbolic victory for the Trump Campaign on November 12, a Pennsylvania judge ordered state election officials not to count ballots of certain voters whose proof of identification was received after November 9, 2020.
- On November 13, an appeals court rejected an objection by President Trump’s lawyers to practices involving mailed ballots.
Nevada
- The Trump Campaign requested the counting of ballots to stop over concerts about signature matching issues that was ultimately denied and another lawsuit over republican observers in Clark county that was granted.
Arizona
- The Trump Campaign supported a lawsuit in Maricopa County that claimed that people voting for Trump were given sharpies to cast their votes which led to their ballots being thrown out. This claim was denied by the county’s attorney office. Sharpies can be used to fill out ballots and are preferred in some cases.
- The Trump Campaign asked an Arizona judge to block certification of the results.
- On November 13, the president’s lawyers admitted the judge no longer needed to weigh in because “the tabulation of votes statewide has rendered unnecessary a judicial ruling as to the presidential electors.”
North Carolina
- The Supreme Court ruled that ballots postmarked by Election Day could be received up to 9 days after. The Trump Campaign appealed this decision and lost.
Wisconsin
- The Supreme Court ruled against allowing ballots postmarked by Election Day to be received six days after election day and was viewed as a win by the Trump Campaign.
Texas
- The state Supreme Court denied a request to throw out 130,000 ballots that were cast at a drive-thru polling location.
Michigan
- On November 13, a Michigan judge threw out claims of fraud made by the Trump campaign as “incorrect and not credible.“
Are there any recounts of the 2020 election?
Yes, in Georgia. Joe Biden leads by a slim margin of 14,000 votes. The state has officially called for a recount of all 5 million of the votes cast by hand. Georgia Secretary of State Brad Raffensperger has said that he trusts the electronic voting machines used in the election to count votes and does not believe the recount will change the overall vote tally. State law requires Georgia officials to certify the election results by November 20th, giving them a short amount of time for a full recount.
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