On November 3, 2020, Americans exercised one of the biggest responsibilities and privileges of citizenship in our country – the right to vote. This year included a presidential election that was not called by the Associated Press until November 7, 2020 when the results in Pennsylvania brought Vice President Biden’s Electoral College tally over the required 270 votes.
The United States has a democratic form of government in many ways, but the election of our president is not by popular vote. According to Article II Section 1 of the United States Constitution, the Electoral College is the formal body that elects the President and the Vice President. Each state designates “electors” in the same number as that state has Senators and members of the House of Representatives. Since 1961 and the passage of the 23d Amendment to the Constitution, the District of Columbia has three electors. Thus, individual voters in each state vote for a slate of electors.
State election officials certify the popular vote, and the winning slate of electors meet in the state capital to cast two ballots: one for the President and one for the Vice President. In Nevada, the two primary political parties each select six electors who will cast Nevada’s Electoral College votes if their candidate wins. These electors in Nevada – and the respective electors in all other states – meet in the state capital on the Monday after the second Wednesday in December after the general election and cast their votes. This year, that date is December 14, 2020.
Most states require by state law that all electoral votes go to the candidate who receives a plurality of votes in that state. On July 6, 2020, in Chiafalo et al. v. Washington, the Supreme Court upheld the constitutionality of these state laws requiring electors to follow their state’s popular vote if the state has passed such a law.
Maine and Nebraska have “district systems” whereby two at-large electors vote for the plurality vote winner and one elector votes for the plurality winner in each congressional district. The District of Columbia and 26 states bind their electors to vote for the promised candidate and rarely in the modern era do they vote for someone other than for whom they are pledged. In the nineteenth century, there were occasional “faithless electors”, but these never decided a presidency.
After the Electoral College votes on December 14, 2020, a Joint Session of Congress will convene on January 6, 2021 at 1:00 p.m. The Vice President opens the vote from each state alphabetically. According to 3 U.S.C. Section 15, a method exists to object to electoral votes. A member of the Joint Session may object to individual votes or a state return as a whole. The objection must be in writing and must be signed by at least one Senator and one Congressperson. Following the objection, the Joint Session goes in recess and each chamber considers the objection separately for no more than two hours, with a member allowed to speak on it for no more than five minutes. The chamber then votes, and the two chambers reconvene. If the two chambers agree to the objection, the votes of the elector or the state, as the case may be, are not counted. If either chamber does not agree to the objection, the votes are counted.
In the case of an Electoral College deadlock or if no candidate receives the required majority, a “contingent election” is held, and the House of Representatives votes on who becomes the next President and Vice President. Only two elections in America’s history have been decided by “contingent election,” in 1800 and in 1824.
Inauguration Day is Wednesday, January 20, 2021.