Explainer: How Electoral College Lets President Win with Minority of Votes

The system can favor candidates who win a lot of states by small margins while losing big in some large ones

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For the fourth time in the history of the United States, the candidate who won the popular vote did not win the presidency. At last count, Democrat Hillary Clinton was 2.2 million votes ahead of Republican Donald Trump, according to the Cook Political Report, but Trump won more electoral college delegates.

For the second time this century, the electoral college has been thrust into the spotlight as many ask how the candidate who won the most votes is not the winner of the election. Petitions are circulating online to eliminate the electoral college or ask electors pledged to Trump not to vote for him.

Here’s how the electoral college works and how New Jersey fits into the system.

It’s not a college: It’s not even a place. Nowhere in the US Constitution is the word college even used. It is the group of people who actually choose the president.

The origins of the electors: When the founding fathers were drafting the Constitution, they were divided over how to elect the president. Some wanted Congress to choose the president, but this was rejected due to the likelihood of political bargaining and divisiveness. Others wanted the state legislatures to make the decision, but many thought that would leave the chief executive beholden to those lawmakers. Still others suggested the people vote for the president, but that was rejected because of fear the people would not know enough about candidates from other states to make an informed choice — it was 1787, before national newspapers, television, the Internet, cell phones, and Twitter — and that the most populous states would have a greater say in the balloting. So they agreed to a group of electors, with each state having the same number of electors as members of Congress. They left it up to the state legislatures to determine the choosing of the electors. The electors would meet in their home states to deter political dealing. And to become president, a candidate would have to win a majority of the electoral votes.

Early problem: Just 13 years later, in the election of 1800, the electors’ votes ended in a tie and the US House of Representatives had to choose the new president, as the Constitution specified. But it took 36 ballots and much political bargaining before the Congress named Thomas Jefferson president. The Electoral College system had been designed to prevent political deals for votes, so Congress passed and the states quickly ratified a constitutional amendment meant to correct the situation. Originally, each elector had made two picks for president, with the runner-up to be named vice president. The 12th Amendment specifies that each elector vote for a president and then separately vote for a vice president. Again, the House would break a tie.

Changes over time: Initially, each state had a different way to choose its electors. The New Jersey Legislature chose them from 1789 through 1800, when the state put it in the hands of the popular vote, except in 1812. By the mid 1800s, all electors essentially were chosen by voters in the states.

Uncommon: Few other countries in the world use a system like the Electoral College. In “Why the Electoral College is Bad for America,” George C. Edwards III, University Distinguished Professor of Political Science and Jordan Chair in Presidential Studies at Texas A&M University, wrote, “The United States is the only country that elects a politically powerful president via an electoral college and the only one in which a candidate can become president without having obtained the highest number of votes in the sole or final round of popular voting.”

How a candidate can win the popular vote but lose the presidency: All but two states are winner take all, meaning that whoever wins the popular vote also wins all the electoral votes. Only Nebraska and Maine apportion electoral votes based on the overall popular vote and the vote in each Congressional District. This year, Clinton won a minority of states, and some like New Jersey, New York, and California by large margins, but lost a majority of states, including some by small margins — her loss by less than 11,000 votes in Michigan cost her 16 electoral votes.

When the electors disagreed with the popular vote: It has definitely happened four times: 1876, 1888, 2000 and this year. In all four of these, the Democrat won more popular votes but the Republican took a majority of the electoral votes. This year, Clinton’s apparent 2.24 million popular vote victory over Trump is the largest numerical win of the four elections and her 3.6 percent margin was second largest percentage win — Democrat Samuel Tilden beat Republican Rutherford B. Hayes in 1876 by 6.3 percent, or about 254,000 votes. The 1876 election was a unique case because Tilden had more electoral votes than Hayes but still not the required majority, as three states’ results were in dispute. A compromise awarded the remaining 20 votes to Hayes, giving him the slimmest majority of one electoral vote. In all four of these elections, New Jersey voted with the majority of voters for the Democrat who lost the Electoral College balloting.

In 1824, the electors also came to a different conclusion than the voters, but since six states appointed electors that year and had no popular vote totals, it is unclear what the total popular vote would have been, and that year none of the four candidates, all Democratic-Republicans, won a majority of the Electoral College, so the House chose the president. Here again, New Jersey came out on the losing end, voting for Andrew Jackson, who won a plurality of the popular vote and Electoral College, but the House chose John Quincy Adams.

The 2016 election is technically still undecided: But it is highly unlikely Trump will not be the winner. The electors meet in their home states on December 19 to cast their ballots. While electors may choose to vote however they want — though they are subject to penalties in the 29 states that “bind” their electors to vote for the candidate to whom they are pledged — this is rare in modern times. According to the website FairVote, 157 so-called
“faithless electors” throughout history have cast votes for someone other than the candidate to whom they were pledged, although only 17 of those occurred after 1900. The Hill reported last week that at least six electors said they will not vote for their nominee. Multiple news sources on Monday reported that a Texas elector will resign, rather than vote for Trump. Several online petitions are urging electors not to vote for Trump, with one on Change.org amassing more than 4.6 million signatures as of Monday. Each state must finalize its list of electors by December 13.