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The Law of the Electoral College

This guide, created by the Law Library of Congress, is intended to provide researchers with an overview of the law pertaining to the Electoral College and resources for further research.

Introduction

Bain News Service, publisher. Vice Pres't Marshall receives Cal. Vote. 1917. Bain Collection. Library of Congress Prints and Photographs Div. [Photograph shows lawyer Francis Joseph Heney (1859-1937) delivering California's Electoral College votes for President Wilson to the Senate where they are received by Vice President Thomas Riley Marshall (1854-1925)].

The Electoral College is the system in the United States by which the President and Vice President are elected. The process consists of three phases:

  1. Voters in a state vote for a candidate (selection of the electors);
  2. The electors meet to cast their votes for President and Vice President; and
  3. The electoral votes are counted by Congress and the winners are officially declared.

When voters cast their vote for the President and Vice President in the general election, they are actually selecting the slate of electors already appointed by each candidate's party, who will then cast their vote for President and Vice President. Each state has a number of electors equal to the number of its Representatives and Senators in Congress. Washington, D.C. has three electors under the Twenty-Third Amendment to the Constitution. All 50 states determine the winning slate of electors by popular vote. Forty-eight states use a "winner-take-all" method--whichever party's candidate receives the most votes sends its slate of electors to cast all allotted votes for President and Vice President on behalf of the state. Two states (Maine and Nebraska) use a "district" method--one electoral vote is awarded to the presidential candidate who wins the popular vote in each congressional district and two electoral votes are awarded to the candidates receiving the most votes statewide. Under the "district" method, the total number of electoral votes cast by electors in one state may be split among candidates.

After the general election takes place and the voters have chosen the winning slate of electors, the electors meet in their state to cast their vote for President and Vice President. This meeting takes place on the first Monday after the second Wednesday in December. The electors' votes are recorded to a Certificate of Vote.

Each state submits its Certificate of Vote to Congress, where the electoral votes are counted on January 6th of the year following the general election in a joint session of Congress. Currently, there are 538 electors across all 50 states plus the District of Columbia. The person who wins the election must have a majority of the electoral votes, or at least 270 votes. If a person has received at least 270 votes for President or Vice President, the President of the Senate declares that person the winner of the election for President or Vice President. If no candidate receives at least 270 electoral votes, then the President is elected by the House of Representatives and the Vice President by the Senate in a process known as "contingent election." The winners are sworn into office on January 20th of the year following the election.