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Diplomacy in Action

The Electoral College: How It Works in Contemporary Presidential Elections

Thomas H. Neale, Specialist, American National Government, Congressional Research Service (CRS), Library of Congress
Washington, DC
October 24, 2012

2:30 P.M. EDT


MODERATOR: Good afternoon. First of all, let me apologize for the delay. Today, we’re going to have a briefing on the Electoral College. Our briefer is Thomas Neale, who is a specialist in American national government at Congressional Research Service, the Library of Congress. And here’s Tom.

MR. NEALE: And good afternoon, ladies and gentlemen. As Miriam said, my name is Tom Neale. I’m with the Congressional Research Service at the Library of Congress. Our department works exclusively for the members and committees of Congress, and we produce nonpartisan, unbiased, and accurate policy analysis information retrieval on all levels for the members and committees of Congress, and exclusively for the members and committees of Congress. And having said that, I want to let you know that I’m appearing today as an elections analyst and what you hear from me should not be interpreted to be the findings, holdings, or assertions of the Congressional Research Service. So with that in mind, let’s proceed.

What about the Electoral College? It’s almost unique in the world today. Let me ask – the first question that may come to your mind is: Why do we have an Electoral College? Remember, the United States Constitution is the oldest written constitution in the world. It was drafted in the 18th century. And as a result, it has perhaps fewer of the mass democratic features that you would expect from a constitution that derived, after – say, after the French Revolution or in the 20th century.

What our Constitutional Convention was trying to get was a system that guaranteed the separation of powers, and checks and balances that kept the presidency free from undue influence, particularly with respect to its elections, from Congress, and three, gave the states a role in the presidential election. To this day, Americans vote for president in two capacities: as U.S. citizens, and to a certain extent, as citizens of the states in which they reside, because that is how the electoral votes are put together, and that is how you win a majority in the Electoral College.

The Constitution – the Constitutional Convention decided this was the best compromise because it included these principles. It did not initially include any provision that the people would vote in a presidential election. The electors would vote, and it was left to the states how they would choose their electors. This power is retained by the states today, but all the states delegate that power to the citizens. So your – when Americans go to the polls on election day, they are voting for, actually, electors for president and vice president.

And who are these electors? Well, they can be anybody, except a person who is a member of Congress or any person who is – holds an office of – in trust or profit under the United States. So Ms. Rider and I cannot serve as presidential electors, but almost anybody else could. In practice, they tend to be party officials, state governors, prominent party people holding – that do not hold positions in the federal government. How are they chosen? Each party in each state nominates a slate of electors. You never see their – in very few exceptions do you ever see their names on the ballot. When Americans go to the polls, it says, “Electors for Barack Obama and Joseph Biden,” or “Electors for George Romney and Paul Ryan.” But they are – so they are, in fact, voting for these electors.

How many electors and how are they allocated? I’m sure you know that. The formula is each state receives a total number of electoral votes equal to the combined total of its House and Senate delegations. Now, the reason we have the Senate delegations included is because one of those compromises from the Constitutional Convention to give the states – the less populous states a modest advantage compared to the more populous states. So today you have – the range runs from California, obviously our most populous state, which has 55 electoral votes because it has 53 representatives and two senators, to a number of states like Wyoming, Alaska, Delaware, Vermont, Montana, the Dakotas, that have three electoral votes. They have one because they have one member in the House of Representatives, and the additional two for Congress.

And these electoral votes are awarded in most states on what we call the winner-take-all or general ticket basis. That is, the voters vote for the whole slate of candidates. And this causes some distortions. For instance, in California in recent years, the Republicans can reliably take anywhere from 40 to 45 percent of the popular vote, but they get no electoral votes because the Democrats have a strong grip on California, and a number of other states, too. I picked California simply because it’s the most populous state.

There are two exceptions to that rule, and that is called the district system, which is practiced in Maine and Nebraska. Now this harkens back to the fact that the states actually have a lot of independent authority about how they do – they delegate their electoral votes. It’s a little complicated, but in these states that have the district plan, the voters go to the polls, one vote for president and vice president, but the votes are counted in two different ways. They are counted statewide, and the statewide winner wins those two electoral votes that reflect their senators. And then the votes are counted in each congressional district, and the winner in each congressional district gets an electoral vote. So you have a situation like we did in Nebraska in 2008, where Barack Obama and Joe Biden won the First Congressional District, which includes Lincoln, the largest city in the state, and the McCain-Palin ticket won the Second and Third, which are more rural and more Republican.

So under the district – but they also – McCain-Palin also won the statewide vote. So under the district formula, they won one vote for each of their two congressional districts, plus the two votes for the statewide, which gave them four. President Obama and Vice President Biden won one for the one congressional district that they did win.

Another question you might ask: Why do we have – why has this system endured as long as it has? Well, first of all, it’s worked pretty well. More than 50 presidential elections that we’ve had, particularly since the ratification of the 12th Amendment in 1804, which I won’t go into unless you ask me to, we’ve had a pretty good record, 47 of 51. This should make it 48 of 52 if everything works out, which is not bad in the greater scheme of things. It’s not perfect. Secondly, and perhaps equally important, if not more important, the Constitution of the United States is not easily amended. In order to have an amendment, the most widely used of the two methods is that you must have an amendment proposed and approved by a two-thirds majority of the members of our two houses of Congress, and then – that is not sufficient in and of itself – then the amendment is sent forward to the states, and the states must – three-fourths of the states, and that’s 38 of the current number of states – I don’t think we’re going to be adding any anytime soon – must ratify it.

Now – and to make it even more difficult, Congress has, for the past hundred years, whenever they have proposed an amendment, they have attached a seven-year deadline to it. So those three conditions make it difficult to amend the Constitution. And there’s another more practical matter: Congress has a limited amount of time and energy to deal with these issues. And they simply have – don’t choose to deliberate on it if it’s not absolutely important. And that’s because there are many competing demands on their time and energy.

In the year 2000, as you will recall, Vice President Gore actually won more popular votes nationwide, but fewer electoral votes nationwide. And skipping over for a moment the question of who won Florida, which I’m not going to – it’s a settled issue – the fact of the matter is that President Bush won the election because of winning the bare majority of electoral votes necessary. And at that time, if you had asked me and I was doing this same job – and I may even have been in this same room discussing the same issue 12 years ago – if you had asked me, well, if there is an Electoral College misfire, won’t Congress move quickly to propose a constitutional amendment, and I would have said yes, I think they will. But they didn’t. And the reason for that is that they chose instead to concentrate on the Help America Vote Act – HAVA – which provided established standards – new standards – technical standards, technological standards – for the – for voting, particularly electronic voting hardware in the states, and also provided a program of grants to the states to help them modernize their voting systems so that we could move forward in that area and make the recording of votes more complete and accurate and timely.

For instance, as late as the year 2000, 10 percent of the people in the United States actually voted by paper ballot, which I know in many parts of the world, that is pro forma – that’s the standard operating procedure, but not, you would think, in this country.

So let’s move onto a timeline, which we are fast approaching the end of at this point. As you know, November 6th, Tuesday after the first Monday in November is presidential election day. And that day was chosen in – many, many years ago for a number of different reasons. It was – Tuesday was not on a on Monday, and in a rural republic that was very religious, nobody worked or travelled on Sunday. So this gave people who had to walk or ride their horses or wagon or whatever, gave them a full day to get to the polling place, the voting station in their county. It also was in November, which was the right time window for the expiration of the presidential term. You had to hold your election sometime – certain amount of time before the expiration of the term.

It was also good to hold it in November because the harvest had been collected and the farmers had some spare time on their hands. And also in the northern states in November, the roads are clear and dry, you haven’t had major snowfall, there’s no mud, it’s easier to travel. So these are some of the arcane reasons that led us to establish our election day on Tuesday after the first Monday in November.

Once the election – the voters have cast their ballots, the Electoral College will then meet. And they meet this year on the – December 17th to cast their votes. They meet separately. They do not meet in one place. And there’s a reason for that that also goes back to the Constitutional Convention, because the members of the Constitutional Convention were afraid that if the electors all met in one place, that there would be a lot of opportunities for political bargaining and intrigue. So they deliberately chose to require the electors to meet in their respective state capitals.

There is one date before that, December 11th, which most of us had never heard of before the year 2000, the so-called safe harbor date. And you may want to keep that in mind in the event that there is a very close election, as there was in 2000. The safe harbor date is the date set by federal law when the states, if they have procedures in place to decide contested ballots, and if they have made a decision using those procedures, that decision is final. And that was the date that Florida was bumping up against in the year 2000.

So December 17th, the electors vote. It’s – it happens in the state capitals, usually in the state capitol building. Some of the states make a big public ceremony of it. Some of the others, they just meet, cast their votes, and leave. The results are forwarded to Washington to various officials, including the administrator of General Services, who runs the National Archives; the secretary of the Senate; the clerk of the House; the judge of the federal district court for Washington; and the judge of the federal district court for the district in which they meet.

And then, according to law – by law – on January 6th, the Congress meets in joint session – one of these rare joint sessions – to count the electoral votes. Now, January 6th falls on a Sunday this year, so it is very likely that Congress will postpone it to Monday, January 7th. Most of the time, these electoral vote counting sessions are pro forma and very routine. However, sometimes you can have high drama. In the year 2000, members of Congress sought to file a complaint about the electoral vote from Florida, as you may recall, claiming that it was irregularly given. However, they did not have the required – they did not meet the requirements for that, so Congress could not consider the objection.

In 2004, it happened again, and this time they did meet the requirements. And when you do have a contested vote in which the petition has been properly submitted, the two houses then have to break, meet separately, two hours’ debate, take a vote, go back and announce their decision. And if the two houses vote to exclude those electoral votes, then they – those particular ones that are in contention, then they are out. They are out. So this is something to think that you might want to be aware of as we approach this period. And if it’s a very tight election, if there are charges of electoral irregularities in any of the states, you might be on the lookout for contests to the electoral vote count.

And then, of course, January 20th, the president’s term expires, and the new president is inaugurated, so we have a fairly – if it were to come to contest in the House of Representatives, we have 13 days, roughly, to decide what to do. So it’s a fairly compressed window of time, and depending on how the election turns out, we will see whether it moves smoothly, which we all hope it will, or whether there will be a political controversy.

What are the some of the worst things that can happen under the Electoral College system? As I mentioned before, the so-called misfire, in which one candidate, or set of candidates, wins the Electoral College vote but loses the popular vote. And this has happened under the current system three times: in 1867 with great political consequence for our country, in 1888 with no political consequence for our country, and in the year 2000 with a lot of political strife that grew out of the Bush-Gore case in Florida.

I’ll mention just 1876 because it appeared that the Republicans might lose to the Democrats in the 1876 presidential election. And there were contested electoral votes, and an electoral commission was considering which side to give them to, award them to. And the Democrats and – there was a lot of talk, particularly in the southern parts of the United States, which had been under federal occupation since the Civil War, about civil disturbances in the event these electoral votes were rewarded to the Republicans.

So meeting behind closed doors, the political leaders made an agreement whereby the – the Great Compromise of 1877, whereby the Democrats acceded to the commission’s award of the electoral votes to the Republicans and therefore Rutherford B. Hayes became – a Republican, became the President, in return for which the Republicans agreed to end Reconstruction in the south, which meant the withdrawal of federal troops, which had been enforcing civil and voting rights for our newly enfranchised African Americans.

And with the end of Reconstruction came a 90 year period in which blacks lost most of their civil and all of their political rights in much of the south. So it’s a very important election in our history. In 1888, nothing happened. They just said, “Oh. That’s the way it goes sometimes.” 2000 kind of fell in between, I think.

What’s another contingency that we can look at? We may look at – we don’t see them very often – we call them faithless electors. Remember, these are real people, and they actually mark the names of the candidates they are committed to down on a paper ballot. Faithless electors are electors who vote against the candidates to whom they’re pledged. There haven’t been many; there have only been nine since 1900.

Some of the instances are amusing. In the year 2004, an elector in the state of Minnesota decided – and this was the year – this was an elector who had been elected for Senator Kerry and Senator Edwards, and this elector decided – and we don’t know who it was, because they did it by secret ballot – that – the elector thought they were both pretty good, so this elector voted for Kerry for president, and for Edwards for president.

In 1988 when the Democratic ticket included Mike Dukakis of Massachusetts and Lloyd Benson of Texas, one elector decided that – and it was a lady we know, because she talked about it – she said she didn’t care much for Dukakis, so she voted for Benson for President and Dukakis for Vice President.

Now 26 of the states do have either laws or party rules on the books saying you can’t do this, and if they find out in advance of the date on which the electoral votes are cast, they can fire the elector and bring in a replacement. But once the – 24 states make – have no provision for this. But once the electoral vote is cast, this is a decision that would come – it could come before the courts, and we don’t know how the courts would decide, because it’s never happened in American history.

And let me suggest that if we’re looking at scenarios – let’s say if we had a very close election, and the electoral votes were counted in Congress and we found that there had been a – several faithless electors that changed the results of the presidential election from what had been anticipated, how do you deal with that? And what sort of timeframe do you have? Thirteen days.

Another contingency that has been talked about this time, and probably with greater likelihood, but – although still a very distant likelihood of eventuality – is the concept of an Electoral College tie. Now there are 538 electors. It is possible tie at 269 each. If you – CNN and ABC News have both developed five or six different scenarios of putting the states together to see how that works, and – so it could be done. And what happens then, if there’s no majority in the Electoral College or if there is a tie in the Electoral College, the election goes to the House of Representatives where each state casts a single vote, and the Vice President is elected in the Senate where each senator casts a single vote. So these are some of the eventualities that come about from this system.

Just briefly – I’m not going to try to handicap the race for you at this time, but I would recommend – and you probably are very well aware of it – I think Real Clear Politics – and this is an unsolicited endorsement – has a very good – they do a – they average the polls, so they get a nationwide average. And there are a lot of other great polls out there, too; this is not the only one. But they do it, and they also – their website is very clear and easy to understand. So that is a place that a lot of people look for advice. But as I say, there are a lot of really good sources out there as well.

Touching briefly on just the Congressional elections: It looks very close. It doesn’t – at this point – and I don’t want to handicap the election, but there doesn’t look to be so there will be much change in either one. But now, if you have any questions on the Electoral College?

MODERATOR: Wait for the mike.

QUESTION: Thank you very much. My name is Gregory Mercy. I’m a reporter for Televisa News Network, from Mexico. I would like to know more about the electors. We know they are maybe prominent politicians or people who help the party to do some things. But do they gather at some point, do they receive any training? Do they – I mean, how do they prepare them? How do they know what to do, or how do they engage in the activities?

And also, can you tell that this presidential election is as a number of separate national elections conducted by the states but with a national result?

MR. NEALE: With respect to the electors, most of the states send their electors very precise instructions on where to report, when to report, and what they should do. Also, since the electors are nominated by their political parties, the party and – it’s either by party committees or by party conventions, and it usually happens May through June. They are chosen for their political experience and their political loyalty and they do, again, receive instruction from the state officials. The officer who usually conducts this in the states is – each state has an officer called the Secretary of State, or some cases, the Chief of the Elections Division, in some cases it’s the Lieutenant Governor. But they – the Electoral College sessions in the states are usually conducted by these officials.

And the second part of your question?

QUESTION: Can you tell that maybe this is – I don’t know how to detail --

MR. NEALE: It’s a federal end – yes. Yeah, it’s a national and a federal election.

QUESTION: Yeah, I know, but what I mean is the states are running the election, so this has – these are like state elections with a federal consequence --

MR. NEALE: Yes, up to a point. The states actually manage the election system. And as you know, when you vote for federal elections, but also always state and local government officials who are up for election. However, the federal government does have – constitutionally have the authority over times, places, and manner of elections to the Senate and House of Representatives, which they have chosen to exercise somewhat more in recent years.

For instance, the Voting Rights Act, which you’re all familiar with, was a federal – using their constitutional power. Both under that provision and under the 14th Amendment, the federal government outlawed and instituted procedures to make sure that the states could not discrimination in their voting procedures.

Now, in addition to that, since the Help America Vote Act, the states must also meet fairly stringent conditions set by – established by the federal government on their – the machinery with which they record their votes. You have – we still have punch cards. We still have some lever machines. But most of it is now computerized with – you mark the little spot and put your ballot in and it’s automatically recorded.

So the federal government does – although the states do have that authority, the federal government does have the potential authority to regulate how the states conduct their elections. And it has, when it has needed to, stepped in to do so.

And an interesting point here, the states in the United States are always complaining about – with all due respect to the state governments, they’re always complaining about the federal government imposing mandates that cost them money. Well, when the Help America Vote Act was passed, Congress made sure that the states received grants to help them develop these improvements to their voting systems so they did not have to bear the cost alone.

QUESTION: Thank you so much. My name is Ben Bangoura with (inaudible).com and (inaudible). I would like to know what your founding fathers had in mind when they crafted the Electoral College and what (inaudible). And also (inaudible) Maine and Nebraska, where – why their law (inaudible) different from the (inaudible)?

MR. NEALE: Well, at the convention – actually, even direct popular elections of President was considered the constitutional convention, but only one state approved it. It was such an unusual idea in 1787 to have direct election. Even in this country where you – we had a pretty large voting population, there were serious constraints of income and status. You had to be a free man, a white man, you had to have a certain level of property. So we’re dealing with a mindset that’s very different from our own so far as democratic participation is concerned.

But as I say, they did want to have the states very much involved. They did not want to have Congress involved. They did not want the President to be answerable to Congress for his election or reelection. They wanted the President to be more independent. And that is – fits with the idea of the convention that we would have the three independent branches of government, and that there would be a series – division of – separation of powers and a system of checks and balances, whereby none of them could exercise dominance over the other.

QUESTION: Hi, Deborah Ackel, Abu Dhabi TV. This is a little bit off the Electoral College, but could you speak a little bit about voter ID laws and the influence of the Supreme Court on the election?

MR. NEALE: Voter ID laws are something that has come up in the past in recent years, the concept that a person would have to actually show a photographic identification. This is not true on the federal level. This is essentially a state issue, and the states – some of the states have instituted these laws and many of them have been challenged. And as you can – as you know, some of them have been stayed, some of them in their execution. Others, I think, may have gone further than that. But it’s a matter before the courts, and different sides of the argument have different views on it, really. It’s politically a very sensitive issue at this point.

QUESTION: (Inaudible.) Sir, what are the reasons for Electoral College and there are some reasons begin? So who would (inaudible)? Well, first of all, are you for change or for the (inaudible)? Or still United States (inaudible)?

MR. NEALE: Well, I think, as a dedicated servant of the United States Congress, and of course the American people, that I should withhold my personal judgment. But there are arguments on both sides; you’re absolutely right.

One of my favorite ways of looking at the Electoral College: There was a Greek poet whose name escapes me right now who said famously – and I’m sure many of you have heard this – that the hedgehog – no, the fox knows many things. The hedgehog knows one big thing. Now, direct popular election in this country is the hedgehog; it’s one big thing. The people rule, the majority rule, so it’s a very strong majoritarian argument in favor of having a single vote across country.

In fact, there’s an interesting movement underway now called the National Popular Vote Movement that is seeking an NPV; you can Google it and find out about their program. What they want to do is have the states come together – not in the federal aegis but by themselves – and adopt an interstate compact whereby they would agree that no matter what their votes were – how the popular vote was cast, that they would choose as electors the electors for the winning candidate nationwide. So this is a way of getting – would be a way of getting around the constitution without having to do – legally without having to do a constitutional amendment. Now there are also legal arguments that are raised against that as well.

On the other side of the coin with respect to the Electoral College, it is – and you will see in my report, its advocates say it is an important part of guaranteeing the stability of the two-party system, and by that I mean the broad-based two-party system, although we are somewhat more programmatic than we have been in the past. The Democrats are more – the centrism is a little changed. The two parties are moving in slightly different directions. But it’s also considered to be by these people a pillar of federalism. If we have – our Senate is apportioned on the concept of state equality. The Electoral College is apportioned on the concept that the states are sub-national, but in their own right sovereign political communities in which the citizens participate both – as I said earlier – citizens of the state in which they vote and also citizens of the United States.

So you have two competing philosophies there, and I think they both offer a great deal, and both can be very passionate in their advocacy.

MODERATOR: Right here.

QUESTION: Hello. Melisa Cabo with the news agency of Argentina, Telam news agency. I would like you to talk a little bit more about the – this system, the Electoral College, and the polls, how it works. Because if the electorals are the one who elect the president, how the polls – what’s the role of the polls here in this system?

MR. NEALE: Now you’re referring to the public opinion, survey research, right. Well, the polls reflect – there are two kinds of polls, and there’s the nationwide average, which we tend to look at. And that’s – that gives you a photo of national opinion. But it is arguable that, although that is a valuable reference, the more important polls are those that are conducted in the individual states, because it is the individual states where the election is decided. So I think that they also certainly – the survey research and the polls have a great deal of influence on the way in which the presidential candidates and their campaign organizations and the national party organizations plan and conduct their campaigns. If they say, for instance – recently, there’s been – there have been polls that suggested that Governor Romney is closing the gap in Ohio, which is one of the most important of the battleground states. And so the – you can be sure that the Romney campaign and the Republican National Committee have poured monetary resources into there for television time and for phone banks and for get-out-the-vote – the ground game, as you know.

And they probably – the schedules of the candidates are extraordinarily fluid these last few weeks so that they can be deployed wherever they are needed, wherever you see an opening. All of a sudden, Pennsylvania may be in play, and so there’s – neither Governor Romney nor Congressman Ryan has been in Pennsylvania in months, and I wouldn’t be surprised if you see one or both of them there, especially in parts of the state that might appear to be more favorable to them.

So they do have an influence, and there’s – finally, there’s another influence that just occurred to me, that they may have an influence on the minds of the people who look at the polls and maybe say, “Well, gee whiz, it’s going to Obama, maybe I should vote for Obama,” or “Well, look at that, Romney seems to be coming back from the dead. Maybe I should consider voting for Romney.” So I think that’s another way in which survey research can influence the campaign.

MODERATOR: Right here.

QUESTION: Hi, thank you. My name is Sylvia Pisani. I am also from Argentina, from the newspaper La Nacion. Thank you for all your information. We have a problem here, and for – I particularly have a problem, which is the headline. And the headline is, for me, on the night of November the 6th. And I’m dreaming about it and I’m – (laughter) – having nightmares with it, because everything could be okay if we have a clear election. But if the election is tied, the result is tied, everybody’s going to show how this is going to be reflected in the college. They are going to say 260-something or two – so imagine the worst, because we have – I know I won’t be able to call you then that night. (Laughter.) So imagine the worst, that the election is really tight, and they say 269 to 269, you know? Wolf Blitzer and everybody, hey, we have here different. So we start to think in the Congress, no? Because the president is going to be elected by the House of – they are tight, yeah? If we have that scenario, what have to do?

MR. NEALE: Well, first let me say, sure. Let’s say we have 269 electors chosen for President Obama and Vice President Biden, and 269 for Governor Romney and Congressman Ryan. I’ve been talking earlier about the electors as independent agents. And there is a very strong body of opinion that suggests that although you can replace an elector before he or she votes, that you cannot change their vote after they have voted. So what’s to keep one elector in one state from saying this can’t go to the House of Representatives; I’m going to step forward and change my vote and instead vote for the popular vote winner, to cut the Gordian knot, as it were, to save the country from contention election?

Or what if the same elector says, well, I’m going to vote for the – for my party? That doesn’t work; sorry about that. But this is the way around it. If it does go to 269 to 269, then there are other factors to be considered. The states – there may be states where there is a very tight race, and we could see a replay in one or more states of the activity you will recall in Florida. You know the hanging chads and the reexamining the results vote by vote by vote, although hopefully, after 12 years of effort, which Congress has pushed very hard, to improve the accuracy and speed and inviolability of our voting process, of our voting systems, that we would not have the same degree of sloppiness that they did in certain parts of Florida, with all due respect to Florida, in the year 2000, that we hope that wouldn’t happen again.

But there might be changes in the results from state recounts. There might be a change in electoral votes, as I said just a moment ago, from a particular elector. If indeed Congress votes to approve a 269-269 split, we at least would have the advantage of knowing in advance, at least a month in advance, and they would be able to plan for it. And we’d move into the contingent election phase, which is another act in a three-act or a four-act play, which presents an entirely different series of assumptions and possibilities because the Constitution simply says that each state – that they shall vote by ballot, paper – the states will vote by ballot, and that they will do that to the exclusion of all other business, which means that if we do have a contingent election of the president in the House, the state delegations would cast their votes on paper and they could do no other business, although they could adjourn to go home at night.

So – but the rest of that is an undiscovered country. For instance, California has 53 House members. They cast one vote. Wyoming has one House member. Wyoming casts one vote in the contingent election process.

Wait, there’s more. When the state – what if you have a state with an equal number of – even number of electors? What if they split 50/50? How do they cast their vote, their single vote in the contingent election process? You see there are – forgive me for sounding glib, but there are many contingencies in the contingent election process.

And the last – the most recent reference point for us is 1825, 187 years ago. So Congress would have its work cut out if we were to go to a contingent election. Personally, I don’t think it’s going to happen. It could. And it makes a wonderful scenario for what if and alternative future novels and things of that sort. There have been plenty of them written on this subject.

QUESTION: Thank you (inaudible).

MR. NEALE: Certainly.

MODERATOR: Right here. Right there.

QUESTION: Thank you. Silvia Ayuso with the German Press Agency. It’s related to this last question. First one thought. I mean, with what you said that one elector could decide to vote in a different way than he’s supposed to, isn’t that, with all due respect to the electoral system, every system has its flaws, but that’s putting maybe the position of millions of people in one person, which would be – wouldn’t be that considered somehow dangerous?

And second, I’m not sure I understand, in case of a tie, what this says that in the House each state delegation casts a single vote. You explained a little bit, but I’m confused. We are not talking –are we talking about the electoral votes or the Congress --

MR. NEALE: The Electoral College exists very briefly. The electors are elected. They meet under – on November 6th. They meet in the states separately from – December 17th. They vote; they disappear. The Electoral College disappears for another four years. So they have no continuing existence.

With the contingent election process, the way – the 12th Amendment provides that the president is elected in the House of Representatives. But in this case, each state as an entity, as a unit, casts one vote. So that means that in states where you have more than one representative – and that’s most of them – the representatives will have to vote internally, in an internal caucus, in a huddle, if you will, to determine how their vote should be cast. And the question is should it be majority? Should it be plurality? What if someone wants to abstain? And these are rules – these are contingencies that would have to be decided in the House of Representatives prior to this session. And as I say, we do have an old – very old precedent from 1825 by which we can at least look to see what Congress has done in the past.

MODERATOR: The last question, right there. Right there.

QUESTION: I’m Arundhati Mukherjee from India. I’d like to know as it appears that Electoral College votes are more important than popular votes, does that reduce the spirit of democracy? And the second part of my question is: If the Electoral College is so important and the voters don’t know who are the electors, is it an obstacle to transparency in the electoral system?

MR. NEALE: That’s a very interesting point. The – at one point in the past, people – the ballots were printed with the names of the elector candidates on them. I remember when I was a young man and I lived in Washington but voted in the State of New York, which is my native state, I voted on a paper ballot and I knew who my presidential elector candidates were. This is not done anymore. And one of the reasons, of course, with this is that voting machines, either the old fashioned lever kind, which are analog, or the new systems which are all digital, it’s very difficult to, say for instance in the State of California to list the names of 53 people. So each one of the 8 or 9 or 10 political organizations that has a place on the ballot in that state, depending on how many gain ballot access.

The answer to your question is that from a very, very early time in this country, electors have been seen not to be independent agents, which is what the Founding Fathers thought they would be. You see, there was no political community in the United States in 1787. We had 13 colonies scattered up. It took two months to travel by land from Boston to Georgia. And they felt that – and there was no national press – they felt that the people themselves, the voters, would probably not have the sophistication to be able to discern national issues or national characters. So they would vote for the electors, who would be the landholders, the best and the brightest, the merchants, the bankers, and these people would make a disinterested selection.

Well, it broke down almost immediately because even at that point in 1787 there was a drive towards democraticzation, the frontier drive in America, as you will, and people said I don’t – and very early, in the early 19th century, one elector – can’t remember the name of the state or the elector or the person who said this, but an elector voted against instructions, and he said, “I don’t choose them to think; I choose them to act.” So it is our tradition and has been for two centuries that the electors are the agents of the people, and they do the people’s will.

So – but we still have the constitutional provision that suggests – and again, we don’t know whether this would stand up in court because it’s never been decided in court, that the electors are actually fundamentally still free agents. Now, as I mentioned earlier, if you’re an elector candidate for Democrats in a certain state and you say I’m actually – I’m telling you, I’m voting for Romney, the state party in 26 states has the authority to take you off the ballot and substitute someone. But as I said earlier, once again, once they’ve voted, it’s – we’re entering – it’s an undiscovered country. It’s new territory.

Philosophically, if we, again, if we deal in pure reason, yes, there’s – you can – it can be said, as you noted, that having an indirect election of the president with these intermediate actors may cast some doubt on the – if you’re looking for something pure about the process, you really want something that is simple, logical, and rational, but let me suggest that the United States Constitution, although it comes from the 18th century, which was – these were all men of The Enlightenment. They all knew their Enlightenment philosophers, but it is a – and it is an enlightened document, but it is filled – the Constitution is filled, replete with odd little compromises and odd little provisions, some of which we have stripped out because they needed to be stripped out, like the three-fifths provision and the slave trade and things like that, some at great cost to ourselves. But it is – it’s a very complicated – it’s a simple – it’s a short document. I believe it’s probably the shortest written Constitution of any nation today, but it’s a very complicated one. And so here again, choose between the one big thing or the multitude of little things that maybe gives you the same value in the long run.

MODERATOR: Thank you very much for coming to this briefing. (Applause.)

MR. NEALE: Thank you.

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