Electoral College FAQs

Who elects the President?

Dinis Cheian — Sat, 17 Oct 2020 18:35:00 +0000

Under our Constitution, the President is elected by “electors.” There are currently 538 electors. To win, a candidate needs a majority of all electors appointed, so 270. State legislatures decide how electors are chosen. Initially, many legislatures chose the electors directly themselves. Since 1876, every legislature had given the voters in their state the presumptive …

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How then does the popular election on November 3 election work?

Dinis Cheian — Sat, 17 Oct 2020 18:35:00 +0000

In the ordinary case, the people vote on election day and, often, before election day, either by mail or through “early voting” that happens before November 3. But November 3 is the cut-off: it’s the last day to vote, and, when the polls close in a state, the results may start to be released. Each …

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What is the “Red Mirage”?

Dinis Cheian — Sat, 17 Oct 2020 18:35:00 +0000

The “Red Mirage” (also known as the “Blue Shift”) is a potential 2020 election scenario in which President Trump will appear to be ahead on Election Night when the returns are first reported, only to then fall behind — and ultimately lose to — Vice President Biden as all the mail ballots are counted in …

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Can a legislature change its mind and cancel an election while it’s ongoing or after it happens?

Dinis Cheian — Sat, 17 Oct 2020 18:35:00 +0000

It’s never happened and we think it would be illegal. Well before an election begins, a legislature could decide to remove the people from the process that selects electors. The last state to flip flop like this was Florida in the 19th Century. In 1860, it held a popular vote for President. But after Florida …

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When must states announce who won?

Michael Glanzel — Fri, 16 Oct 2020 20:12:00 +0000

Typically when we hear that a state is “won,” we are hearing a news desk’s projection that a candidate has won. This is not an official announcement; rather, it is a decision by a particular news organization that they are certain that when all the votes are counted, the projected candidate will win that state. …

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What if there is a tie in a state’s popular vote?

Michael Glanzel — Fri, 16 Oct 2020 19:44:00 +0000

While there are a number of states that have no provisions to determine who would win that state’s electors in the event of a tied popular vote, many states have specific statutes that deal with the possibility of a tie vote. The most common way to deal with a tie vote is to simply draw …

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What if the election has “failed” under the “Failed Election” provision of Title 3?

Dinis Cheian — Fri, 16 Oct 2020 18:35:02 +0000

Congress has gathered all the statutory provisions related to the election of the President into Title 3 of the United States Code. Some of these provisions were part of the Electoral Count Act of 1887. The “failed election” provision of Title 3 was enacted 30 years before the Electoral Count Act, at the time when …

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What if there is an emergency on election day? Can the legislature override the election then?

Dinis Cheian — Fri, 16 Oct 2020 18:34:51 +0000

Currently, there is no federal law addressing the process for dealing with emergencies on Election Day. Some state laws provide guidance for Election Day emergencies, however. Generally, these laws outline procedures for postponing or suspending elections. The most common statutory approach is to permit delaying the election, changing polling place locations, or doing both. A …

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What happens if there is more than one “slate” of electors purporting to represent a state?

Dinis Cheian — Fri, 16 Oct 2020 18:34:42 +0000

It has happened in our history that there has been more than one slate of electors that purports to represent the state. The most famous example is 1876, when four states sent two slates of electors to Congress to be counted. But it also happened in 1960, when Hawaii sent more than one slate to …

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What if a slate doesn’t get “safe harbor” protection?

Dinis Cheian — Fri, 16 Oct 2020 18:34:33 +0000

According to the Electoral Count Act, in order for a slate of electors to qualify for “safe harbor”, the electors must be chosen according to the laws of the state enacted prior to Election Day (November 3), and any/all disputes related to the appointment of electors must be resolved at least 6 days prior (December …

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What if more than one slate claims safe harbor protection under different state procedures?

Dinis Cheian — Fri, 16 Oct 2020 18:34:25 +0000

If there are multiple slates from a state that qualify for “safe harbor” protection, and if both the chambers agree to accept a particular slate, then that slate would count. Similarly, if both chambers agree to reject a particular slate, then that slate would not be counted. However, if both chambers cannot agree to either …

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How does Congress decide these questions?

Dinis Cheian — Fri, 16 Oct 2020 18:34:14 +0000

The count happens in a Joint Session of Congress, presided over by the President of the Senate (Vice President Mike Pence). 3 U.S.C. §15 outlines the procedure. When the count begins, Pence will start with Alabama and proceed in alphabetical order. As each state is counted, members of either House have a chance to object. Any …

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What happens if there’s a tie between the Houses?

Dinis Cheian — Fri, 16 Oct 2020 18:33:54 +0000

There are two Houses. Obviously, it’s pretty easy to imagine a tie. If there is a tie, meaning one House has voted one way and the other has voted a different way, then §15 declares that the slate of electors which has been “certified” by “the Executive” in the state — presumably the governor — …

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What if the tie is bogus? Meaning, what happens if the alternative slate is completely bogus?

Dinis Cheian — Fri, 16 Oct 2020 18:33:45 +0000

This is where things get difficult. There’s no doubt that the ECA expects Congress to be applying a legal standard to the facts as they’ve been presented to them. That’s their duty — to act like a court. But Congress is not a court. And it’s incredibly unlikely that any court, including the Supreme Court, would …

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Can Senate Republicans count the votes before January 3rd, when the new Senate is seated?

Dinis Cheian — Fri, 16 Oct 2020 18:33:37 +0000

You have probably noticed by now that a few of the issues above arise only when the Republicans keep the Senate. For example, if Democrats win the Senate and keep the House, the tie between the two Houses, discussed above, is unlikely to occur. In such a blue wave case, the question is: Can Mitch …

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What happens if the winning candidate passes away after November 3rd?

Dinis Cheian — Fri, 16 Oct 2020 18:33:28 +0000

Understanding that this could always be a possibility, some States have drafted their pledge laws to give electors voting discretion when their candidate has died. See, e.g., Cal. Elec. Code Ann. §6906; Ind. Code §3–10–4–1.7. According to Chiafalo, it is suspected that in such a case, States without a specific provision would also release electors …

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What happens if the process for determining the winner of the presidential election is not completed by January 20, 2021?

Dinis Cheian — Fri, 16 Oct 2020 18:32:31 +0000

The President’s current term of office ends on January 20, 2021 no matter what. Under no circumstances may the President’s current term be extended. An incumbent president may remain in office after the expiration of his first term only by winning re-election for a second term. In every previous presidential election, the winner was determined …

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What is the role of the Supreme Court in deciding the presidential election?

Dinis Cheian — Fri, 16 Oct 2020 18:32:12 +0000

The most famous example of the Supreme Court intervening in a contested election was the Court’s decision in Bush v. Gore during the 2000 election. That case focused on the complexities of the recount in Florida’s very close race between Bush and Gore. After a chaotic and uneven recount process, the Supreme Court of Florida …

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How can lower courts remedy real or claimed election irregularities?

Dinis Cheian — Fri, 16 Oct 2020 18:30:30 +0000

Lower courts derive their “remedial powers”—the ability to right wrongs—from 3 sources: federal laws protecting federal rights, statewide election laws, and powers inherent in the courts called “equitable powers.” Statewide election laws deal largely with procedural matters of how the votes are counted or a result is challenged. However, if there are suspicions of fraud …

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What happens if the candidates win an equal number of electoral votes?

Dinis Cheian — Thu, 15 Oct 2020 23:41:00 +0000

With 538 electors it is possible that Joe Biden and Donald Trump might each end up with 269 electoral votes. What happens then? Let’s begin with the Twelfth Amendment text specifying the requirement for a candidate to be elected president by the Electoral College: the person having the greatest number of votes for President, shall …

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Power of State Legislatures in Presidential Elections

Dinis Cheian — Thu, 15 Oct 2020 22:45:00 +0000

Early caselaw distinguishes three issues: qualification of voters (who can vote), election of state and local officials, and election of federal officials, including the electors for President and Vice President. [1] The issues should not be confused, as they come up in a variety of lawsuits involving issues that are similar on the surface but …

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Have other suggestions for FAQs? Feel free to drop them in the comment section to this entry.

Dinis Cheian — Thu, 01 Oct 2020 14:36:42 +0000

If there are other questions you’d like us to answer, please drop them in the comments. And if you’ve identified any mistakes we’ve made, please let us know!