Electoral College Primer

How in the world could George W. Bush win the presidency if Al Gore got the most votes?

Two words: Electoral College.

No, the Electoral College isn't an actual institution of higher learning. It's the mechanism under the Constitution that actually chooses the president. Devised by the Founding Fathers, the system is comprised of 538 electors. Each state's number of electors equals its total of members in the House and Senate. (In addition, the District of Columbia has three electors.) When you pulled the lever on Election Day, you were really deciding which candidate's slate of electors cast your state's electoral votes.

In 48 of the 50 states, the candidate who wins the popular vote in a particular state nabs that state's electoral votes. (Same deal for the District of Columbia.) Two exceptions to this are Nebraska and Maine, which allot their electoral votes according to the popular vote winner in each of their House districts. The candidate who obtains at least 270 electoral votes - an Electoral College majority - becomes the next president.

And that magic number is what makes Florida the key. Without the Sunshine State's 25 electoral votes, neither Republican Bush nor Democrat Gore has the necessary Electoral College majority to claim the White House.

Right now, Bush holds 246 electoral votes to Gore's 267. If the Texas governor's oh-so-slim lead in Florida survives all recounts and legal challenges, his total would jump to 271 - and Bush would be on his way to the Oval Office, regardless of Gore's lead in the national popular vote.

But if the vice president ultimately prevails in Florida, Gore would be the one moving into 1600 Pennsylvania Avenue on January 20, with an electoral vote total of 292.

Unfortunately, the longer this saga lasts, the more chances exist for political mischief down the road.

Consider this. On December 18 - the first Monday after the second Wednesday of next month - all of the electors will meet in their state capitals across the country to cast their ballots. The new Congress will then count the votes and officially certify the winner when it convenes in January. But here's the catch: less than half of the states have laws that require their electors to cast their ballots for the candidates for whom they are pledged. Over the years, only seven electors - also known as "faithless electors" - have gone their own way, though without ever changing an election's outcome.

Then again, this is no ordinary election - or this all would have ended when we thought it had. Just in case you were wondering, Florida's electors are not bound by their state's law to cast their ballots for the popular vote winner in their state, whomever it's declared to be. Also, Florida's legislature is poised to name the Sunshine State's electors for Bush, no matter what happens in the courts.

Sounds like a political train wreck, but the country haendured split outcomes and bitterly contested races before.

In 1888, Democrat Grover Cleveland beat Republican Benjamin Harrison in the popular vote, while Harrison won in the Electoral College - making him the president. Over the last century, close, but not split, results occurred in 1976, 1968, 1960, and 1916.

But it's the 1876 election that now seems the most haunting. Democrat Samuel J. Tilden narrowly edged Republican Rutherford B. Hayes in the national popular vote. Yet neither man had won an outright Electoral College majority, since both parties claimed the electoral votes of Oregon and three Southern states: Florida (!), Louisiana, and South Carolina. Less than a dozen years after the end of the Civil War and slavery, claims and counterclaims about what we might now call "voting irregularities" sprouted like crabgrass. Republicans accused Democrats of intimidating black voters in the three Southern states, while the Democrats charged the GOP with fraud.

To end this impasse, Congress took a step never spelled out in the Constitution. It created a 15-member bipartisan commission of Supreme Court justices, Senators, and House members to settle which candidate should get the disputed electoral votes. Democrat Tilden needed just one more electoral vote to win, Republican Hayes required all 20. That commission - eight Republicans overruling seven Democrats - awarded the entire batch of contested votes to Hayes, unless both houses of Congress objected.

An uproar immediately ensued, of course. But in the end, Hayes was declared the winner - just 56 hours before Inauguration Day on March 4, 1877. (Inaugurals were moved to January 20 starting 60 years later...) So how did the country avoid what could well have been another Civil War? This passage from Historic Documents on Presidential Elections, edited by Michael Nelson, best sums up the behind-the-scenes compromise:

"Southern Democrats agreed to accept the commission's report (and Hayes' election) in return for Hayes' promise virtually to end Reconstruction - that is, to withdraw the remaining federal troops from the South, appoint a white Southerner to the Cabinet, support internal improvements in the Southern states and allow the region to return to white rule."

That compromise opened the door to the Jim Crow segregation era in the South which remained the status quo until the civil rights upheavals of the 1950s and '60s.

Finally, in the event of a tie or a dispute-free numerical deadlock in the Electoral College, the House of Representatives - the new one, which convenes on January 3 - would choose the next president. Under this process mandated by the Constitution, each state's congressional delegation casts one vote by secret ballot. This has occurred twice, in 1800 and 1824.

But what happens if the House fails to resolve the impasse and there's still no new president? Well, the Twentieth Amendment to the Constitutio says that the vice president-elect "shall act as president until a president shall have qualified." But let's assume that neither of the running mates - Republican Dick Cheney or Democrat Joe Lieberman - attains an Electoral College majority, either. In that case, the Senate would pick the vice-president elect by a simple majority - with each senator having one vote. And if the new Senate that meets on January 3 is split evenly along party lines over that question (as it well could be), then the current vice president - remember, that's Al Gore until January 20 - would break the tie on who would succeed him as vice president, and thus serve as the acting president.

Failing all the above, the Twentieth Amendment further empowers the Congress to decide by law "who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified."

And you thought impeachment made your head spin.

In an interview before the election, Catholic University political scientist Mark Rozell said, "The procedure is clear under the Constitution, but a lot of people would be thoroughly confused if it happened. People need to be educated so there is not a sense that the winner comes to office lacking legitimacy."

  • CBSNews.com staff CBSNews.com staff

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