How The US Electoral College Works
- The Electoral College in Brief
- Role of the States
- Role of the National Archives and Records Administration
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The Electoral College in Brief
The Electoral College was established by the founding fathers as a compromise between election of the president by Congress and election by popular vote. The electors are a popularly elected body chosen by the States and the District of Columbia on the Tuesday after the first Monday in November (November 4, 2008). The Electoral College consists of 538 electors (one for each of 435 members of the House of Representatives and 100 Senators; and 3 for the District of Columbia by virtue of the 23rd Amendment). Each State's allotment of electors is equal to the number of House members to which it is entitled plus two Senators. The decennial census is used to reapportion the number of electors allocated among the States.
The slates of electors are generally chosen by the political parties. State laws vary on the appointment of electors. The States prepare a list of the slate of electors for the candidate who receives the most popular votes on a Certificate of Ascertainment. The Governor of each State prepares seven original Certificates of Ascertainment. The States send one original, along with two authenticated copies or two additional originals to the Archivist of the United States at the National Archives and Records Administration (NARA) by registered mail. The Certificates of Ascertainment must be submitted as soon as practicable, but no later than the day after the meetings of the electors, which occur on the first Monday after the second Wednesday in December (December 15, 2008). The Archivist transmits the originals to NARA's Office of the Federal Register (OFR). The OFR forwards one copy to each House of Congress and retains the original.
The electors meet in each State on the first Monday after the second Wednesday in December (December 15, 2008). A majority of 270 electoral votes is required to elect the President and Vice President. No Constitutional provision or Federal law requires electors to vote in accordance with the popular vote in their State.
The electors prepare six original Certificates of Vote and annex a Certificate of Ascertainment to each one. Each Certificate of Vote lists all persons voted for as President and the number of electors voting for each person and separately lists all persons voted for as Vice President and the number of electors voting for each person.
If no presidential candidate wins a majority of electoral votes, the 12th Amendment to the Constitution provides for the presidential election to be decided by the House of Representatives. The House would select the President by majority vote, choosing from the three candidates who received the greatest number of electoral votes. The vote would be taken by State, with each State delegation having one vote. If no Vice Presidential candidate wins a majority of electoral votes, the Senate would select the Vice President by majority vote, with each Senator choosing from the two candidates who received the greatest number of electoral votes.
The United States Constitution and Federal law place certain responsibilities relating to the Presidential election upon State executives and the electors for President and Vice President. Neither the Constitution nor Federal law prescribe the manner in which each State appoints its electors other than directing that they be appointed on the Tuesday after the first Monday in November (November 4, 2008). The Constitution forbids a Senator, Representative, or person holding an office of trust or profit under the United States from being appointed as an elector.
In most States, the electors are appointed by state-wide popular election. The slate of electors for the candidate who receives the most popular votes is appointed. The slates of electors are generally chosen by the political parties. However, the States' laws vary on the appointment of electors. In Maine and Nebraska, two electors are chosen at-large by state-wide popular vote and the rest are selected by the popular vote in each congressional district. As a result, the electoral procedure in these States permits a split slate of electors to be chosen.
After the general election, the Governor of each State and the Mayor of the District of Columbia prepare a Certificate of Ascertainment of the electors appointed (herein, the term "Governor" includes the Mayor of the District of Columbia). The Certificate of Ascertainment must list the names of the electors appointed and the number of votes received by each. It must also list the names of all other candidates for elector and the number of votes received by each. The Certificate must be signed by the Governor and carry the seal of the State. The format of the Certificate is not dictated by Federal law, but conforms to the law or custom of the submitting State.
The Governor must prepare seven original Certificates of Ascertainment. One original, along with two authenticated copies (or two additional originals) must be sent by registered mail to the Archivist of the United States, National Archives and Records Administration. The Certificates should be sent as soon as practicable after the election, but must be submitted to the Archivist no later than the day after the meetings of the electors, which occurs on December 15, 2008. The other six originals must be delivered to the State's electors on or before December 15, 2008.
On the first Monday after the second Wednesday in December (December 15, 2008), the electors meet in their respective States. The State legislature may designate where in the State the meeting will take place. It usually takes place in the State capital, often in the capitol building. At this meeting, the electors vote by ballot for President and Vice President. There must be distinct ballots for President and Vice President. The electors' votes are recorded on a Certificate of Vote. This Certificate must contain a list of all persons voted for as President and the number of electors voting for each. It must also contain a list of persons voted for as Vice President and the number of electors voting for each. The names of candidates receiving no electoral votes do not appear on the Certificate of Vote.
There is no Constitutional provision or Federal law requiring electors to vote in accordance with the popular vote in their States. In the 1976 election, a Washington elector pledged to President Gerald Ford voted for Ronald Reagan. In the 1988 election, a West Virginia elector voted for Senator Lloyd Bentsen as President and for Governor Michael Dukakis as Vice President. But some State laws require electors to cast their votes according to the popular vote and provide that so-called "faithless electors" may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute elector.
The format of the Certificate is not dictated by Federal law, but is determined by the law or custom of each State. Six original Certificates of Vote must be prepared by the electors. Each Certificate must be signed by all of the electors. One of the six Certificates of Ascertainment forwarded to the electors by the Governor must be attached to each of the six Certificates of Vote. Each of the six pairs of Certificates must be sealed and certified by the electors to be the list of votes of that State.
The six pairs of Certificates are distributed as follows:
- One pair, by registered mail, to the President of the United States Senate, The Capitol, Washington, DC 20510;
- Two pairs, by registered mail, to the Archivist of the United States, National Archives and Records Administration, c/o Office of the Federal Register (NF), 8601 Adelphi Road, College Park, MD 20740-6001;
- Two pairs to the Secretary of State of the State, one of which is held subject to the order of the President of the United States Senate, the other to be preserved by the Secretary for public inspection for one year; and
- One pair to the chief judge of the Federal district court of the district in which the electors meet.
Since there is a very short time between the meetings of the electors in the States and the counting of the electoral votes by Congress, and the meetings of electors coincides with the December holiday mail season, it is imperative that these Certificates be delivered as soon as possible. After the Certificates of Ascertainment and Certificates of Vote are delivered to the appropriate persons, the States' functions in the electoral process are completed.
NARA and Office of the Federal Register Procedures
The Archivist of the United States is required by law to perform certain functions relating to the electoral college (3 U.S.C. sections 6, 11, 12, 13). The Archivist has delegated to the Director of the Federal Register the authority to carry out the administration of the electoral college process.
Prior to the General Election
In October of each Presidential election year, the Archivist sends a letter to the Governor of each State and the Mayor of the District of Columbia along with an instruction package prepared by the Office of the Federal Register (OFR) that sets out the States' responsibilities regarding the electoral college. The package also includes a quantity of booklets containing applicable Federal Constitutional and statutory provisions regarding presidential elections to be distributed to each elector.
Also in the month prior to the election, the OFR contacts the Assistant Secretary of the Senate and the House Parliamentarian to make arrangements for the delivery of the electoral college certificates to Congress. And finally, in the month prior to the election, the OFR prepares to receive the electoral college certificates from the States. The OFR makes special arrangements with the Archivist's mailroom staff and messenger service to establish procedures for handling the Certificates and transmitting them from the Archives to the OFR.
After the General Election
During the week following the general election, the OFR calls the Governor's Office in each State and the Mayor's Office in the District of Columbia to make a personal contact with a person responsible for the electoral college process. In some States, the Secretary of State is the official designated to administer the electoral college, but other State officials may be assigned this responsibility according to State law or custom. The OFR confirms that materials mailed in October have arrived and reviews the States' plans for carrying out their responsibilities.
Receipt of Certificates of Ascertainment
Certificates should begin arriving at NARA shortly after the general election held on November 4, 2008. The Archives makes a record of the Certificates of Ascertainment it receives and transmits them to the OFR's Legal Affairs and Policy Staff by special delivery. The OFR logs in a record of the Certificates and checks them for facial legal sufficiency. If there are any problems with a Certificate, an OFR attorney calls the contact person in the State to advise them of the defect. The OFR makes copies of the Certificates of Ascertainment available for public inspection and secures the originals.
Receipt of Certificates of Vote
Certificates of Vote should begin arriving at NARA shortly after the State meetings of the electors held on December 15, 2008. Certificates of Vote are recorded on a log sheet when received at the Archivist's office and at the OFR. Each Certificate is checked for facial legal sufficiency, and if there are any problems with a Certificate, an OFR attorney calls the contact person in that State and the Assistant Secretary of the Senate to inform them of the problems and offer advice as to a solution. After the Certificates of Vote have been determined to be facially sufficient, the OFR makes copies of them available for public inspection and secures the originals.
Certificates of Ascertainment Transmitted to Congress
The OFR prepares cover letters for the Archivist's signature to accompany the Certificates of Ascertainment transmitted to Congress. The OFR hand delivers the Certificates and cover letters to the Vice President's Office in the Senate (the Vice President is the President of the Senate) and the Speaker's Room on the House side of the Capitol and obtains a receipt. If all the Certificates of Ascertainment are received in a timely fashion, they are sent to Congress in one group. However, late arriving Certificates may also be hand delivered separately to Congress so that transmittal of the other Certificates is not delayed.
Certificates of Vote Subject to the Call of the President
of the Senate
The OFR holds one of the two original Certificates of Vote subject to the call of the President of the Senate in the event that one or more Certificates fail to reach the Senate in a timely manner. If the Archivist does not receive a Certificate of Vote from a State by a week after the electors meet, the OFR calls that State's contact person to make sure the Certificates were mailed. If the Certificates were not mailed, the OFR advises the State to transmit the Certificates by express mail. If the Certificates were mailed and are overdue in arriving, the OFR calls the Postal Service to request that it trace the package. Finally, if no Certificate of Vote is received from a State by the fourth Wednesday in December after the election, the OFR employs the procedural steps set forth at 3 U.S.C. sections 12 and 13 by securing a duplicate from the Secretary of State of the State or by dispatching a special messenger to obtain the duplicate held by a Federal District judge and hand carrying it to Washington D.C.
After Congress has met in joint session for the official counting of electoral votes, all Certificates of Ascertainment and Certificates of Vote in OFR's files are combined into one file. Each file contains all Certificates from a State, any cover letter accompanying the Certificates, and any envelopes bearing certifications of electors' votes. The files are placed in archival boxes and made available for public inspection at the OFR for one year and then transferred to NARA for permanent retention.
House and Senate staff come to the Office of the Federal Register (OFR) to inspect the Certificates of Vote in late December. Because the statutory procedure prescribes that the Certificates of Vote sent to the President of the Senate be held under seal until Congress opens and counts them in joint session, the Congress depends on the OFR to ensure the facial legal sufficiency of Certificates. If any State's Certificate fails to reach the President of the Senate, the President of the Senate calls on OFR to deliver duplicate originals in its possession to complete the set held by Congress. After the 1988 general election, the President of the Senate called for nineteen of the Certificates of Vote held by the OFR. For the 1992 election, the OFR supplied the Congress with two missing Certificates of Vote.
The Congress is scheduled to meet in joint session in the House of Representatives on January 6, 2009 to conduct the official tally of electoral votes. The Vice President, as President of the Senate, is the presiding officer. Two tellers are appointed to open, present and record the votes of the States in alphabetical order. The President of the Senate announces the results of the vote and declares which persons, if any, have been elected President and Vice President of the United States. The results are entered into the official journals of the House and Senate. The President of the Senate then calls for objections to be made. If any objections are registered, they must be submitted in writing and be signed by at least one member of the House and Senate. The House and Senate would withdraw to their respective chambers to consider the merits of any objections according the procedure set out under 3 U.S.C. section 15.
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