7.3 The Electoral College and Voting Behavior

The Electoral College and Voting Behavior

Quick Answer: The President is elected by the Electoral College, a constitutional mechanism composed of 538 electors (435 House seats + 100 Senate seats + 3 for D.C. via the 23rd Amendment), requiring 270 votes to win. In 48 states and D.C., electors are awarded via a winner-take-all rule, which allows a candidate to win the nationwide popular vote but lose the presidency. Under Chiafalo v. Washington (2020), states can penalize "faithless electors." If no candidate achieves 270 votes, the 12th Amendment directs a contingency election: the House chooses the President (one vote per state delegation) and the Senate chooses the Vice President (one vote per Senator). U.S. voter turnout lags behind other advanced democracies due to structural friction (registration barriers, Tuesday voting, photo ID laws). Education is the single strongest demographic predictor of voter turnout, with older, wealthier citizens voting at substantially higher rates.

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1. Constitutional Foundations and Mechanics of the Electoral College

The Framers of the Constitution created the Electoral College as a delicate institutional compromise between two opposing factions at the 1787 Constitutional Convention:

1. Those who advocated direct popular election by the people (distrusted by elitist delegates who feared democratic passion and mob rule).
2. Those who advocated having Congress select the executive (opposed by delegates who feared executive subservience and violations of the separation of powers).

+---------------------------------------------------------------------------------------+
|                                THE ELECTORAL COLLEGE                                  |
|                                    (538 TOTAL)                                        |
+---------------------------------------------------------------------------------------+
|  435 Electors = U.S. House of Representatives (Allocated by state population)         |
|  100 Electors = U.S. Senate (2 per state, representing equal state sovereignty)       |
|    3 Electors = Washington, D.C. (Granted by the 23rd Amendment, ratified in 1961)    |
+---------------------------------------------------------------------------------------+
|  270 ELECTORAL VOTES NEEDED TO WIN (Absolute majority: 538 ÷ 2 = 269 + 1)            |
+---------------------------------------------------------------------------------------+

Constitutional Provisions

• Article II, Section 1, Clause 2: Grants each state the authority to appoint electors "in such Manner as the Legislature thereof may direct," equal to the whole number of Senators and Representatives to which the state is entitled in Congress. Electors may not be sitting Senators, Representatives, or federal officeholders.
• The Small-State Advantage: Because every state has at least two Senators and one Representative regardless of population, every state is guaranteed a minimum of three electoral votes (e.g., Wyoming, Vermont, Alaska, North Dakota). This creates a structural over-representation of small-population states. For example, Wyoming has approximately one electoral vote per 190,000 residents, while California has approximately one electoral vote per 720,000 residents.
• The Twelfth Amendment (1804):
  • The Historical Defect: Under the original Article II system, each elector cast two undifferentiated votes for President. The candidate with the most votes became President; the runner-up became Vice President. This led to bitter partisan gridlock in 1796 (Federalist John Adams with Democratic-Republican VP Thomas Jefferson) and a catastrophic constitutional tie in 1800 between Thomas Jefferson and his running mate Aaron Burr, throwing the election into the House for 36 ballots.
  • The 12th Amendment Solution: Mandated that electors cast separate and distinct ballots for President and Vice President, institutionalizing the unified party ticket.
• The Twenty-Third Amendment (1961): Granted the District of Columbia electors in the Electoral College, not to exceed the number of electors of the least populous state (fixed at 3 electoral votes).

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2. Allocation Rules, Faithless Electors, and Landmark Jurisprudence

The Winner-Take-All Rule vs. The District Method

State legislatures determine how electors are allocated. Over time, state legislatures abandoned proportional allocation or legislative appointments in favor of popular voting:

• The Winner-Take-All (Unit) Rule (48 States + D.C.):

  • The presidential candidate who secures a plurality of the popular vote within the state wins 100% of that state's electoral votes, regardless of whether the victory was by 500 votes or 500,000 votes.
  • The Popular Vote Split Discrepancy: The winner-take-all rule magnifies victory margins and makes it mathematically possible for a candidate to win the nationwide popular vote but lose the Electoral College. This has occurred five times in American history: 1824 (Jackson won popular vote, Adams won House contingency election), 1876 (Tilden won popular vote, Hayes won Electoral Commission), 1888 (Cleveland won popular vote, Harrison won Electoral College), 2000 (Gore won popular vote by ~540,000 votes, Bush won Electoral College 271–266), and 2016 (Clinton won popular vote by ~2.87 million votes, Trump won Electoral College 304–227).

• The Congressional District Method (Maine and Nebraska):

  • Maine (since 1972) and Nebraska (since 1992) do not use winner-take-all.
  • Both states award two at-large electoral votes to the statewide popular vote winner, and one electoral vote to the plurality winner of each individual congressional district.
  • This creates the possibility of split electoral votes (e.g., in 2008 and 2020, Nebraska's 2nd District voted Democratic while the state voted Republican; in 2016 and 2020, Maine's 2nd District voted Republican while the state voted Democratic).

Faithless Electors and Chiafalo v. Washington (2020)

• A faithless elector is a member of the Electoral College who casts their official ballot for someone other than the presidential or vice-presidential candidate to whom they pledged their support.
• Between 1789 and 2016, 165 faithless electoral votes were cast, but a faithless elector has never altered the ultimate outcome of a presidential election.
• Landmark Ruling: Chiafalo v. Washington (2020):
  • In 2016, several electors in Washington state broke their pledges to vote for Hillary Clinton, attempting to trigger a contingency election. Washington state fined each faithless elector $1,000 under state law.
  • The electors sued, claiming the Constitution grants electors independent discretion when voting.
  • In a unanimous (9–0) decision written by Justice Elena Kagan, the Supreme Court held that states have the constitutional power to require presidential electors to pledge their votes and may penalize, remove, or replace electors who violate their pledge.
  • The Court confirmed that Article II gives states broad plenary power over the appointment of electors, and nothing in the text of the Constitution grants electors personal discretion.

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3. The Contingency Election Process (Twelfth Amendment)

If no presidential candidate achieves an absolute majority of at least 270 electoral votes—either due to a 269–269 tie or a strong third-party candidate capturing electoral votes—the election is immediately thrown into Congress under the Twelfth Amendment.

                   CONTINGENCY ELECTION UNDER THE 12TH AMENDMENT
                       (If No Candidate Reaches 270 EVs)
                                       |
         +-----------------------------+-----------------------------+
         |                                                           |
         v                                                           v
+------------------------------------+     +------------------------------------+
|      HOUSE CHOOSES PRESIDENT       |     |   SENATE CHOOSES VICE PRESIDENT    |
+------------------------------------+     +------------------------------------+
| • Chooses from TOP THREE EV winners|     | • Chooses from TOP TWO EV winners  |
| • VOTING IS BY STATE DELEGATION:   |     | • Each Senator casts ONE vote      |
|   Each state gets exactly ONE vote |     |   individually (100 votes total)   |
| • California gets 1 vote;          |     | • Absolute majority required:      |
|   Wyoming gets 1 vote              |     |   51 of 100 Senators               |
| • Absolute majority required:      |     | • Quorum: Two-thirds of Senators   |
|   26 of 50 states                  |     |   (67 Senators)                    |
| • Quorum: Two-thirds of state      |     |                                    |
|   delegations (34 states)          |     |                                    |
+------------------------------------+     +------------------------------------+

Critical Rules for the Exam

1. The House Elects the President:
   • Members of the House choose from among the top three electoral vote recipients.
   • Unit Rule Voting: Members do not vote as individuals! Instead, each state congressional delegation casts a single, collective vote. If a delegation is evenly split between Democrats and Republicans, that state casts a blank/divided ballot and records no vote.
   • Winning requires an absolute majority of states: 26 out of 50 states.
2. The Senate Elects the Vice President:
   • The Senate chooses from among the top two electoral vote recipients.
   • Each Senator casts one individual vote.
   • Winning requires an absolute majority of the entire Senate: 51 out of 100 votes.

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4. Debating the Electoral College: Arguments and Reform Proposals

Reform Proposals

1. Direct Popular Election Amendment: Abolishing the Electoral College via constitutional amendment (requiring a two-thirds vote in both chambers of Congress and ratification by three-fourths of the states, 38 states). Heavily opposed by smaller states that benefit from the status quo.
2. The National Popular Vote Interstate Compact (NPVIC):
   • An innovative state-level reform circumventing the constitutional amendment process.
   • Participating states pass legislation pledging their electoral votes to whichever presidential candidate wins the nationwide popular vote.
   • The compact contains an activation clause: it becomes legally binding only when joined by states representing an absolute majority of the Electoral College (270 electoral votes).

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5. Voting Behavior: Turnout Rates and Institutional Barriers

In American democracy, voter turnout is defined as the percentage of eligible citizens who actually cast ballots on Election Day.

American Turnout in Comparative Perspective

• The Turnout Paradox: Despite being one of the world's oldest constitutional democracies, the United States suffers from significantly lower voter turnout than virtually all other advanced Western democracies:
  • Presidential Elections: Turnout ranges between 55% and 66% of the voting-eligible population (VEP).
  • Midterm Congressional Elections: Turnout drops precipitously to 40% to 50%.
  • Off-Year and Local Elections: Turnout frequently falls below 15% to 25%.
  • Comparative Democracies: Countries like Sweden, Belgium, Australia, and Germany routinely achieve 75% to 85%+ voter turnout.

                               VOTER TURNOUT COMPARISON
Sweden (Automatic Reg)       |========================================| 87%
Australia (Compulsory Voting)|=======================================| 89%
Germany (Weekend Voting)     |===================================| 76%
United States (Pres 2020)    |==============================| 66%
United States (Midterms 2022)|====================| 46%
United States (Local Off-Yr) |========| 20%

Structural and Institutional Barriers to Voting in the U.S.

Why do Americans vote at lower rates? Political science identifies several structural impediments:

1. Individual Burden of Voter Registration:
   • In most European democracies, the national government automatically registers every citizen upon turning 18. In the U.S., the burden of voter registration rests entirely upon the individual citizen, requiring citizens to navigate state registration deadlines, address updates, and bureaucratic paperwork.
   • National Voter Registration Act of 1993 ("Motor Voter Act"): To combat registration friction, Congress required state governments to allow citizens to register to vote simultaneously when applying for or renewing their driver's licenses, or when visiting public assistance offices.
2. Strict Photo Voter ID Laws:
   • Many states require voters to present government-issued photo identification (driver's license, passport, military ID) at the polling precinct. Proponents argue these laws preserve election integrity and prevent in-person impersonation; opponents argue they disproportionately disenfranchise low-income, student, elderly, and racial minority voters who lack driver's licenses.
3. Election Day Held on a Workday:
   • By federal statute established in 1845, federal elections occur on Tuesday (the first Tuesday after the first Monday in November). Unlike other democracies that conduct elections on weekends or designate Election Day as a national paid holiday, voting in the U.S. competes with employment and childcare obligations.
4. Felon Disenfranchisement Laws:
   • Under the Fourteenth Amendment (Section 2), states retain authority to strip voting rights from individuals convicted of felony crimes. Several million Americans are disenfranchised under state laws, ranging from lifetime voting bans to restoration upon completion of parole.
5. Ballot Fatigue and Election Frequency:
   • American federalism creates an overwhelming frequency of elections (presidential, midterm, primary, municipal, school board, special elections) and extraordinarily long ballots featuring dozens of obscure down-ballot offices and complex ballot initiatives.

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6. Demographic Correlates of Turnout and Political Choice

Decades of empirical survey research (such as the American National Election Studies and exit polling) reveal clear demographic patterns determining who votes (turnout) and how they vote (political choice).

                      KEY DEMOGRAPHIC PREDICTORS OF VOTING
                                       |
         +-----------------------------+-----------------------------+
         |                             |                             |
         v                             v                             v
+--------------------+       +--------------------+       +--------------------+
|     EDUCATION      |       |        AGE         |       |   GENDER & RACE    |
+--------------------+       +--------------------+       +--------------------+
| #1 PREDICTOR OF    |       | Turnout increases  |       | Gender Gap: Women  |
| TURNOUT. College   |       | with age. Seniors  |       | vote significantly |
| grads vote at      |       | (65+) vote at 75%+;|       | more Democratic;   |
| dramatically       |       | Youth (18–24) vote |       | Black voters vote  |
| higher rates       |       | at lowest rates    |       | 85–90% Democratic  |
+--------------------+       +--------------------+       +--------------------+

1. Education (The Strongest Predictor of Turnout)

• Turnout Impact: Educational attainment is the single strongest and most reliable predictor of voter turnout. College graduates turn out at rates exceeding 80%, compared to under 40% for individuals without a high school diploma. Education elevates political efficacy—the belief that an ordinary citizen can understand and influence government policy.
• Partisan Alignment: In recent decades, education has emerged as a massive partisan fault line (the "diploma divide"). Voters with college and postgraduate degrees increasingly lean Democratic, while non-college-educated white working-class voters have realigned heavily toward the Republican Party.

2. Age

• Turnout Impact: Voter turnout increases steadily and predictably with age. Senior citizens (aged 65 and older) consistently demonstrate the highest voter turnout rates of any age demographic (routinely 70% to 75%+). Conversely, young voters (aged 18 to 24) consistently register the lowest voter turnout rates (typically 40% to 45%).
• Reasons: Older citizens have established residences, own homes, pay property taxes, and depend directly on federal entitlement programs (Social Security, Medicare). Young adults experience high geographic mobility, focus on college or career entry, and feel less connected to government policy.

3. Income and Wealth

• Higher-income earners vote at significantly higher rates than lower-income citizens. Wealthier individuals have more flexible work hours, transportation access, civic organizational memberships, and direct stakes in tax and economic policies.

4. Race and Ethnicity

• African Americans: Black voters historically faced brutal disenfranchisement (poll taxes, literacy tests, white primaries, violence) dismantled by the Voting Rights Act of 1965. When controlling for income and education, African American turnout is remarkably robust, occasionally matching or exceeding white turnout (as in 2008 and 2012). African Americans are the most cohesive voting bloc in American politics, voting 85% to 90%+ Democratic in presidential elections.
• Hispanic / Latino Americans: Rapidly growing demographic whose turnout has historically lagged behind white and Black turnout due to a younger median age and non-citizen populations. While leaning Democratic overall (~60% to 65%), significant ideological diversity exists (e.g., Cuban Americans in Florida lean Republican, while Mexican Americans in the Southwest and Puerto Ricans lean Democratic).
• Asian Americans: High median income and educational attainment, but historically lower turnout due to language barriers. Over the past two decades, Asian American voters have shifted from leaning Republican in the 1990s to voting reliably Democratic (~65% to 70%).

5. Gender: The "Gender Gap"

• The Gender Gap: Refers to the persistent, measurable statistical difference in the voting choices of men and women that first emerged in the 1980 presidential election.
• Women are significantly more likely than men to support Democratic candidates, favor spending on social welfare programs, public education, and universal healthcare, and support gun violence prevention and reproductive rights, while opposing foreign military interventions.
• Men are significantly more likely to support Republican candidates, favor increased defense spending, tax cuts, deregulation, and strong border security.
• Furthermore, since the 1980s, women turn out to vote at slightly higher rates than men in presidential elections.

6. Religion and Church Attendance

• White Evangelical Protestants: Constitute the bedrock pillar of the modern Republican base, voting ~80% Republican. They prioritize anti-abortion protections, conservative judicial appointments, and traditional family structures.
• Jewish Americans: Consistently vote heavily Democratic (~70% to 75%), prioritizing civil liberties, religious pluralism, and secular public education.
• Religiously Unaffiliated ("Nones"): The fastest-growing religious category, voting ~70% Democratic.
• Roman Catholics: The ultimate national swing constituency. White Catholics lean Republican, while Hispanic Catholics lean Democratic, reflecting the national popular vote closely.
• The "Pew Gap": Irrespective of specific denomination, voters who attend religious services weekly vote significantly more Republican, while voters who rarely or never attend church vote significantly more Democratic.