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Could the electoral process throw up a major surprise this year?

Andy Cullen is a former Assistant Secretary in the Civil Service where his career focused mainly on corporate governance and regulation in the transport, energy and telecommunications sectors and strategy and investment in the public transport sector.

The US Presidential Election is held every four years on the Tuesday after the first Monday in November. This year, Election Day is Tuesday 8 November.

The election process is not a straight popular vote. When a voter votes for a candidate for President, they are in fact choosing the ‘State’s Electors’ for the Electoral College.

The Electoral College is a process, not a place. The founding fathers established it in the Constitution as a compromise between election of the President by a vote in Congress and election of the President by a popular vote of qualified citizens. The Electoral College process consists of the selection of the electors, the meeting of the electors where they vote for President and Vice President, and the counting of the electoral votes by Congress. The Electoral College consists of 538 electors. A majority of 270 electoral votes is required to elect the President. Each State’s entitled allotment of electors equals the number of its members in Congress: one for each member in the House of Representatives, plus two for the State Senators. The District of Columbia is allocated three electors and treated as a state for purposes of the Electoral College. For this reason, in the following discussion, the word “state” also refers to the District of Columbia.

Each candidate running for President in a State has his or her own group of electors. The electors are generally chosen by the candidate’s political party, but State laws vary on how the electors are selected and their responsibilities. Most states have a “winner-take-all” system that awards all electors to the winning presidential candidate. However, Maine and Nebraska each have a variation of “proportional representation.”

After the presidential election, each State Governor prepares a “Certificate of Ascertainment”, listing all of the candidates who ran for President in their state along with the names of their respective electors. The Certificate of Ascertainment also declares the winning presidential candidate in the State and shows which electors will represent the State at the meeting of the electors in December of the election year. The Certificates of Ascertainment are sent to the Congress and the National Archives as part of the official records of the presidential election.

The meeting of the electors takes place on the first Monday after the second Wednesday in December after the presidential election – Monday 19 December this year. The electors meet in their respective states, where they cast their votes for President and Vice President on separate ballots. Each state’s electors’ votes are recorded on a “Certificate of Vote,” which is prepared at the meeting by the electors. The state’s Certificates of Votes are also sent to the Congress and the National Archives as part of the official records of the presidential election.

Each State’s electoral votes are counted in a joint session of Congress on the 6 January in the year following the meeting of the electors. Members of the House and Senate meet in the House chamber to conduct the official tally of electoral votes.

The Vice President, as President of the Senate, presides over the count and announces the results of the vote. The President of the Senate then declares which persons, if any, have been elected President and Vice President of the United States.

The President-Elect takes the oath of office and is sworn in as President of the United States on 20 January in the year following the Presidential election.

Who selects the Electors?

Choosing each State’s Electors is a two-part process. First, the political parties in each State choose ‘slates’ of potential Electors sometime before the general election. Second, on Election Day, the voters in each state select their State’s Electors by casting their ballots for President.

The first part of the process is controlled by the political parties in each State and varies from state to state. Generally, the parties either nominate slates of potential Electors at their State party conventions or they chose them by a vote of the party’s central committee. This happens in each State for each party by whatever rules the state party and (sometimes) the national party have for the process. This first part of the process results in each Presidential candidate having their own unique slate of potential Electors.

Political parties often choose Electors for the slate to recognise their service and dedication to that political party. They may be state-elected officials, state party leaders, or people in the state who have a personal or political affiliation with their party’s Presidential candidate.

The second part of the process happens on Election Day. When the voters in each state cast votes for the Presidential candidate of their choice, they are voting to select their State’s Electors. The potential Electors’ names may or may not appear on the ballot below the name of the Presidential candidates, depending on election procedures and ballot formats in each state.

The winning Presidential candidate’s slate of potential Electors are appointed as the State’s Electors – except in Nebraska and Maine, where they have proportional distribution of the Electors. In Nebraska and Maine, the state winner receives two Electors and the winner of each congressional district (who may be the same as the overall winner or a different candidate) receives one Elector. This system permits the Electors from Nebraska and Maine to be awarded to more than one candidate.



Are there restrictions on who the Electors can vote for?

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.

The US Supreme Court has held that the Constitution does not require that Electors be completely free to act as they choose and therefore, political parties may extract pledges from electors to vote for the parties’ nominees. Some state laws 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 Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No Elector has ever been prosecuted for failing to vote as pledged.

Today, it is rare for Electors to disregard the popular vote by casting their electoral vote for someone other than their party’s candidate. Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party.

Throughout US history as a nation, more than 99 percent of Electors have voted as pledged. However, some voters have not. Is it inconceivable, given the turmoil within the Republican party, that some ‘Electors’ in the Republican Party would abstain from voting or cross the party line in an act of defiance if the Republican candidate goes the full distance in the campaign?

We won’t know until 19 December.



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