Election Day is Over. Why is the Electoral College Voting Now?
On election night, Americans across the country were focused on one number: 270.
It’s a well-known – and hotly-contentious – fact that in American politics, presidential candidates . While news media rushed to declare the candidate with the most Electoral College votes on or around Election Day, the Electoral College’s work does not begin, nor end, on Election Day. Instead, electors cast their official votes on the first Monday after the second Wednesday in December following the presidential election, which this election cycle falls on December 17.
At the ACLU, we have long argued that the Electoral College is an antiquated and undemocratic process for choosing the highest elected offices in our nation. So why do we have the Electoral College? What does it really do and do we actually need it? The ACLU explains.
The Electoral College was Created as a Compromise
Though the term "Electoral College" , it was established during the Constitutional Convention of 1787 to address disagreements over how to select the president and vice president. The original system, outlined in Article II of the Constitution, allowed each elector to cast two votes for president, with the candidate who received the most votes becoming president and the second place finisher becoming vice president. This led to complications when political rivals were elected to these roles, prompting the adoption of the 12th Amendment in 1804, which required electors to cast separate votes for each office.
At the time, regional divisions also influenced the College’s creation. Southern states, where non-voting enslaved people made up about one-third of the population, opposed a direct popular vote that would have given their states less votes. After much debate, the convention eventually reached the decision to establish the system we now refer to as the Electoral College, applying the three-fifths compromise that counted three out of five enslaved people as part of a state’s total population, though they were still prohibited from voting.
State Size Determines The Number of Electoral Votes a State Gets
The number of Electoral College votes allocated to : two votes for its Senators and a number corresponding to its members in the House of Representatives. This allocation is based on the Census, which determines congressional apportionment every 10 years. In total, the Electoral College consists of 538 members, including three votes for the District of Columbia, granted by the 23rd Amendment ratified in 1961. A simple majority of electoral votes (270 or more) is required to elect the president and vice president.
State Electors Aren’t Actually Elected
The process for selecting electors varies by state, . Political parties first nominate a slate of electors who pledge to support their party’s candidate before the general election, often selecting party loyalists, state officials, or individuals with ties to their candidate. On Election Day, voters choose their state’s electors indirectly by voting for their preferred presidential candidate. Most states follow a winner-take-all system in which the candidate with the most votes receives all of the electoral votes in the state. Maine and Nebraska use a proportional allocation system, assigning two “at-large” electors to the overall statewide winner and appointing individual electors based on the winner of the popular vote within each Congressional district.
Electors Who Stray From the Popular Vote Could Face Fines
Electors are not bound by the Constitution to vote according to the states’ popular vote, but more than 30 states and Washington D.C. have laws that legally obligate them to do so. Some states, , even impose criminal action or fines against electors that stray from the states’ popular vote.
Electors Don’t Vote On Election Day
Electors don't actually vote until December – more than a . During their meeting, electors formally cast separate votes for president and vice president with their results recorded on Certificates of Vote that are sent to the vice president acting as president of the Senate, relevant state officials, the local federal district courts, and the National Archives. These certificates must reach Washington, D.C. by December 25 to be included in the official count.
The final count, however, doesn't occur until even later. This year, on January 6, during a joint session of Congress, officials will declare the president and vice president. The president-elect takes the oath of office and is sworn in two weeks later. If no candidate receives a majority of at least 270 votes, the election is decided by Congress, with the House selecting the president and the Senate choosing the vice president.
Why America Doesn’t Use the Popular Vote
The ACLU has opposed the Electoral College since 1969 for non-partisan reasons, including its undemocratic and unpredictable nature. Unfortunately, amending the Constitution to eliminate this antiquated system is difficult not just because amending the Constitution is hard – it would require at least 37 states to agree to a proposed change – but because the College’s supporters believe that it is a way to give small states power. States receive electoral votes equal to its congressional delegation, guaranteeing a minimum of three votes regardless of population size. This system elevates the influence of smaller states, as larger states would otherwise dominate national elections.
Why We Should Work to Eliminate the Electoral College
The Electoral College thwarts the fundamental principle of “one person, one vote” by awarding each state a number of electoral votes equal to its allocation of representatives plus its two senators. A voter in Wyoming thus has more than three times as much influence on the presidential election as a voter in more densely-populated California. That’s not to mention the racial and ethnic disparities in voting power that influence how electoral votes are allocated. One study calculated that Asian-Americans have barely more than half the voting power of white Americans because they tend to live in “safe” states — like Democratic-leaning New York and California and Republican-leaning Texas.
Right now, the Electoral College harms democracy when it:
- Nullifies the popular vote. In five presidential elections, the winner of the electoral college has lost the popular vote. This means that a presidential candidate that did not achieve a majority of the votes and was not supported by a majority or even plurality of the American people can still win through the electoral college and thus the election. Critics argue that the nullification of the popular vote also has a negative effect on voter turnout, discouraging voters from feeling like voting matters.
- Shrouds Electors in Secrecy. In most states, there is very little public information about how electors are selected and who they are. The process is entirely determined by political parties and incorporates little voter input. Many states also do not have laws requiring electors to vote according to the popular vote in their state, risking the possibility of “faithless” electors who may vote contrary to the will of the voters.
- Gives “swing states” an unfair advantage. The Electoral College system disproportionately benefits certain “swing states” in which the outcome of the election is uncertain. Presidential candidates from both political parties often invest significant resources and attention in these states, neglecting voters in states with a more predictable political leaning.
The Electoral College undermines the principle of “one person, one vote” by giving disproportionate influence to smaller states and swing states allowing a candidate to potentially win the presidency without securing the popular vote. This outdated system fails to reflect the will of the people in a modern democracy, creating inequities in representation. Despite the uphill battle, amending the Constitution to abolish the Electoral College would ensure that every vote carries equal weight in presidential elections.
Learn More About the Issues on This Page
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New York Supreme CourtDec 2024
Voting Rights
New York Communities for Change v. Nassau CountyNew York Communities for Change v. Nassau County
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ArizonaNov 2024
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American Civil Liberties Union of Arizona v. RicherAmerican Civil Liberties Union of Arizona v. Richer
We sued elections officials in Arizona to extend the mail ballot “cure” deadline after ballot processing delays threatened to disenfranchise thousands of voters without notice. -
Press ReleaseNov 2024
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Civil Rights Groups Respond to Flawed Trial Court Opinion on New York Voting Rights ActCivil Rights Groups Respond to Flawed Trial Court Opinion on New York Voting Rights Act
ORANGE COUNTY, Calif. — On November 7, a New York State Supreme Court trial judge issued an opinion striking down the John R. Lewis Voting Rights Act of New York (NYVRA). Today, the Legal Defense Fund, American Civil Liberties Union, LatinoJustice PRLDEF, Asian American Legal Defense and Education Fund, New York American Civil Liberties Union, and Brennan Center for Justice at NYU Law issued the following statement in response to the ruling: “The NYVRA is unquestionably constitutional, and protects the freedom to vote for all New Yorkers by helping to ensure voters are not subjected to discrimination when participating in the political process. “The Nov. 7 decision by a state trial judge is deeply flawed and plainly incorrect. We fully expect the decision to be reversed on appeal. It flies in the face of basic legal principles and constitutes a stunning overreach in striking down the entire law, including provisions that are not at issue in the case. “To put it simply, the NYVRA does not discriminate, it bans discrimination – and in doing so protects New Yorkers’ most fundamental right. “New York is stronger when everyone has an equal opportunity to vote.” -
Press ReleaseNov 2024
Voting Rights
Court Restores Relief to Cobb County Absentee Voters, Ensures Ballots will be CountedCourt Restores Relief to Cobb County Absentee Voters, Ensures Ballots will be Counted
ATLANTA — On Wednesday, the Georgia Supreme Court restored relief for Cobb County voters who requested absentee ballots before the deadline but did not receive them on time due to the county’s failure to mail them promptly. The Court asked the parties to brief whether the case was still relevant, given the fact that the election contests had already been decided. In response, the groups that filed the appeal, the RNC and Republican Party of Georgia, moved to dismiss their appeal. But the American Civil Liberties Union, ACLU of Georgia, and Southern Poverty Law Center explained that, regardless of the election results, without an extension of the absentee receipt deadline, the right to vote of their clients and other affected Cobb voters will still be violated. They emphasized that the right to vote is fundamental, and it is not about which candidate wins or loses, but instead about the ability for every eligible individual to cast a ballot that is counted. Following the briefing, the Georgia Supreme Court dismissed the appeal and dissolved its earlier order that had put a hold on the counting of the affected voters’ ballots. Affected voters in Cobb County will have their absentee ballots counted per the initial lower court order. For these voters, ballots that were postmarked by 7 p.m. on November 5 will be counted as long as they are received by 5 p.m. on November 8. “This change means that plaintiffs in the lawsuit, including many first-time voters, will have their voices recorded in this election,” said Andrea Young, executive director of the ACLU of Georgia. “Our fight for democracy will never stop.” “Because of the unreasonable timelines imposed by Georgia’s SB 202, this is not the first time the system has failed absentee voters, nor is it the first time we have had to intervene to remedy these failures. We cannot let this pattern continue.” said Theresa J. Lee, senior staff attorney at the ACLU Voting Rights Project. “At the end of the day, it is not about outcomes, it is about ensuring that anyone who requested a ballot by the deadline has their vote counted. As we celebrate today’s form of justice, we’re also looking ahead to prevent these kinds of unacceptable errors in future elections.” “It should not take lawsuits and post-election rulings to ensure that voters can participate in democracy,” said Poy Winichakul, senior staff attorney for voting rights at the SPLC. “But whatever it takes, we will do. The freedom to vote is the most sacred right we have in America — and we are pleased that right will be honored for our clients and many other Cobb County residents who voted absentee.” The ACLU, ACLU of Georgia, and Southern Poverty Law Center filed an emergency lawsuit on November 1, 2024, to ensure that Cobb County voters had enough time to cast their absentee ballots.