On December 19, electors gathered in state capitals to formally elect Donald J. Trump to be the next President of the United States. An event that typically garners little attention every four years had its time in the national spotlight this year as many called for electors to turn against the will of the voters and prevent a Trump presidency. While the effort to use the Electoral College to block Trump never panned out, there were more of the so-called faithless electors in 2016 than in any election in many years.

But before we can dig into the recent controversy surrounding the Electoral College, it is important to understand the system itself. Specifically, what exactly is the Electoral College, what is its purpose, and why is it the final arbiter in the election, not the popular vote? Read on to find out the answers to these questions and more.

History of the Electoral College

The history of the Electoral College goes back to the Constitutional Convention of 1787. It was during that seminal moment in American history when the idea of the Electoral College was determined to be the best way to elect the President of the United States. The number of electors in each state is determined by combining the number of senators and representatives in that state. Today, there are 538 electors in total (one for each of the 435 representatives, 100 senators, and the three given to Washington, D.C. by the 23rd Amendment), ranging from three in some states to 55 in California. The number of electors in each state can change with every census, depending on population changes, but no state can have fewer than three electoral votes.

While the number of electors each state has is equal to the combined number of representatives and senators, those representatives or anyone “holding an Office of Trust or Profit under the United States” is not allowed to serve as an elector. If one candidate does not receive a majority, 270 votes, then the House of Representatives decides the election. Parties in each state select the electors for their presidential candidate. In most states, this is done either through state party conventions or central committees. In a few states, a mix of other methods are also employed.

Election Day–which is held every four years on the Tuesday after the first Monday in November–is actually an intermediate step in the presidential election process. While voters cast their votes for a presidential ticket, they are actually choosing a slate of electors who, in the following month, will participate in the final election. The slate for the candidate who wins the most popular votes is elected; this is known as the winner-take-all, or general ticket, system. However, two states, Nebraska and Maine, do not follow the winner-takes-all rule. In those states, electoral votes can be split among multiple candidates through the state’s system of proportional allocation. Regardless of the methodology, once all the votes have been cast and tallied, Congress certifies the results on January 6 of the following year–2017 for the most recent election.

The video below gives an overview of the system and its history:

Changes in the Electoral College over time

The Electoral College system has changed little since its initial unveiling, aside from an adjustment due to the passage of the 12th Amendment in 1804. Before the 12th Amendment, electors in each state voted for two people (at least one of whom had to be from a different state than the elector) and the person with a majority of votes became the president while the runner-up became the vice president.

In the 1796 election, that system produced a president, John Adams, from the Federalist party and a Vice President, Thomas Jefferson, from the Democratic-Republican Party because Federalist Party electors split their votes between multiple vice presidential picks. Then in 1800, the electors voted along party lines for both a president and a vice president, but due to the two-vote system, there was a tie and the House was forced to determine the president. After the complexity of those two elections, lawmakers got together to devise the 12th Amendment, which changed the Electoral College so that electors vote for president and vice president with one vote. That, in general, is the system used in the United States today.

The process of choosing the electors has also changed slightly from the initial procedure in many places. Originally, in several states, the state legislature would determine the electors, meaning that the public had no direct role in the presidential election process. However, that was changed as voting rights spread. In fact, since 1876, every state has used the popular vote to select electors.

Issues with the Electoral College

Naturally, for a system that has been around for 200 years, the Electoral College has dealt with its share of criticism. While electors are expected and have pledged to vote for their state’s popular vote winner, there are a few examples of electors going against the voters. In the last century, at least one example of this practice has occurred in the elections of 1948, 1956, 1960, 1968, 1972, 1976, 1988, 2000, and of course in 2016, which set a modern record. These people are commonly known as “faithless” or “unfaithful” electors. Although it has happened several times in the past, faithless electors have never actually influenced the outcome of the election. Some states have laws on the books to penalize faithless electors, although some argue that if challenged in court, such laws may be deemed unconstitutional.

Beyond faithless electors, the system has had one controversial moment that did end up deciding an election. Namely, in 1824 Andrew Jackson won the most electoral votes; however, he did not win a majority. As a result, the election was thrown back into the House of Representatives and the runner-up in the original election, John Quincy Adams, went on to be elected President of the United States. This was the first and only election where the candidate with the most electoral votes did not win the election. It was also the first time that the candidate with the highest share of the popular vote did not become president. The accompanying video looks at some of the issues with the Electoral College:

Electoral College vs the Popular Vote

A major recurring issue in American presidential elections is that the final outcome is decided by the Electoral College and not the popular vote. Generally, this has not been an issue as the winner of one usually ends up winning the other as well. There are only four instances when the winner of the Electoral College lost the popular vote: 1876, 1888, 2000, and in 2016 (in 1824, no one won a majority in the electoral college and the House chose the president). The margin of President-elect Donald Trump’s loss in the popular vote this election cycle was five times larger than any other election winner in history, with nearly 2.9 million fewer votes. The results of this election, in particular, have led many to criticize the use of the Electoral College, which raises the obvious question: why does the popular vote not determine the winner?

The answer to that question starts with the first Secretary of the Treasury and George Washington’s confidant, Alexander Hamilton. In Federalist 68 he defended the system as a sort of compromise between an aristocracy and a democracy. While Hamilton and many of the other founders wanted a democratic nation, they also wanted an informed and level-headed electorate, something that Hamilton did not view the American people as at that time. Hamilton based this on his knowledge of the downfall of classical democracy, but also an interest in states’ rights.

Namely, Hamilton wanted states that do not necessarily have large populations to be accounted for and have a say in the government. Without the Electoral College one state with a huge population, California now or Virginia in early U.S. history, would be able to significantly influence the final election outcome. This, in turn, would lead candidates to campaign in large states and population centers while ignoring the rest and their associated interests. Moreover, Hamilton wanted the electoral college to ensure that a candidate could appeal to the entire country. However, opponents of the current system argue that modern swing states tilt the campaign in much the same way.

Conclusion

After close elections, particularly those with a split between the popular vote and the Electoral College, many who supported the losing candidate tend to criticize the system. The most recent election featured a split that was very large by historic standards, making that sentiment even stronger. Ultimately, the Electoral College has survived since its inception over 200 years ago and is likely to survive in the future as well. While the system has had several tweaks over the years, the general framework remains intact.

The system is not perfect and simply relying on the popular vote may assuage people’s anger, at least if it benefits their favored candidate. In the meantime, there are other avenues for the disaffected, such as fighting laws that restrict access to voting or even encouraging more people to vote; in 2016 for example, only around 58 percent of eligible voters actually voted.

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

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A presidential elector has officially announced that he will not be voting for Donald Trump on December 19. In an op-ed in the New York Times, Republican Christopher Suprun declared his opposition to Trump. He says that the President-elect’s lack of foreign policy experience and his demeanor make him unfit for the presidency: “He does not encourage civil discourse, but chooses to stoke fear and create outrage. This is unacceptable.”

I worry about America when taking a vote is considered treason. https://t.co/ingWbRkdC1

— (((Chris Suprun))) (@TheChrisSuprun) December 6, 2016

Now, some Democrats calling themselves the “Hamilton Electors” are hoping that more Republicans will be encouraged by Suprun’s act and refuse to stand by their party’s nominee. According to Politico, there are at least eight Democratic electors in the group, based in Colorado and Washington. They have been working to influence other electors to choose a Republican alternative, likely Governor John Kasich. It is unclear whether he would be up for the job, but Suprun also mentioned him as a fitting choice. There are 538 electors that officially choose the president, and one candidate needs 270 to win. So, to have a chance to block Trump from actually taking office, the anti-Trump electors and Democrats would need to persuade 36 more to vote for someone else.

Curious about #HamiltonElectors strategy? Get clear here, and then unite with us to #stoptrump: pic.twitter.com/G3BHdcByUD

— HamiltonElectors (@HamiltonElector) December 3, 2016

Prominent Harvard law professor Lawrence Lessig is joining forces with a California law firm, ready to give legal support and free counsel to electors who choose to vote for someone other than Trump. The effort, called “The Electors Trust,” will also provide a space and platform for electors to discuss and construct a strategy for how to vote on the 19^th, to see whether there is enough support to actually stop Trump. “It makes no sense to be elector number five who comes out against Trump. But it might make sense to be elector 38,” Lessig said.

Clinton’s popular vote lead is now over 2.65 million — and above 2%. This shouldn’t happen. It’s time to reform the electoral college.

— Brian Klaas (@brianklaas) December 6, 2016

Since Hillary Clinton received over 2.5 million votes more than Trump in the election, abolishing the Electoral College has been a hot topic. However, some say removing it would only lead to chaos. To do so would require a Constitutional amendment.

Eradicating the Electoral College would also risk tilting general elections in favor of nominees that could win major metropolitan areas such as New York and California, with no need to campaign in rural areas or in less populated states. It could also lead to extremely close elections that would require recounts, and delay the whole process. And if elections were to be decided by the popular vote, it would be difficult to win an absolute majority because of third party candidates. This year, Hillary Clinton won the popular vote, but not by a majority—she got 48 percent of the vote.

On December 19, the electors will head to their respective state capitals and cast their votes. To further support electors who are anti-Trump, a team of lawyers connected to the Hamilton Electors is already preparing to challenge laws in the 29 states that have legislation binding electors to their party’s nominee. Even if the chance of avoiding a Trump presidency isn’t that great, they’re going to try.

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

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After Hillary Clinton won the popular vote, but lost the White House to Donald Trump as a result of the Electoral College system, there have been calls for change. On Tuesday, Democratic Senator Barbara Boxer introduced a bill that would abolish the Electoral College and, according to many hopefuls, make future elections fairer.

The presidency is the only office where you can get more votes & still lose. It’s time to end the Electoral College. https://t.co/OXZ9vHaIH1

— Sen. Barbara Boxer (@SenatorBoxer) November 15, 2016

On Tuesday, Clinton was leading the popular vote by 990,758 votes. And by the time that all the votes are counted, the New York Times estimates that she will lead by more than two million, which would be over 1.5 percentage points. Barbara Boxer Boxer said in a statement:

She is on track to have received more votes than any other presidential candidate in history except Barack Obama. This is the only office in the land where you can get more votes and still lose the presidency. The Electoral College is an outdated, undemocratic system that does not reflect our modern society, and it needs to change immediately. Every American should be guaranteed that their vote counts.

Even Donald Trump at one point thought the system was undemocratic, as he pointed out in a long series of tweets in 2012. He even confirmed his stance in an interview on “60 Minutes” on Sunday. He said: “I would rather see it where you went with simple votes. You know, you get 100 million votes and somebody else gets 90 million votes and you win.”

.@realDonaldTrump is exactly right – the candidate with the most votes should win. pic.twitter.com/CG1cvcKbQx

— Sen. Barbara Boxer (@SenatorBoxer) November 15, 2016

But that was Sunday. On Tuesday, he had changed his opinion again, and praised the system on Twitter.

The Electoral College is actually genius in that it brings all states, including the smaller ones, into play. Campaigning is much different!

— Donald J. Trump (@realDonaldTrump) November 15, 2016

He also pointed out that if the election had been based on the popular vote, he would have won it anyway, because he would have focused on campaigning in New York, California, and Florida.

If the election were based on total popular vote I would have campaigned in N.Y. Florida and California and won even bigger and more easily

— Donald J. Trump (@realDonaldTrump) November 15, 2016

Trump is the fifth presidential nominee to win the election despite losing the popular vote. The last one before him was George W. Bush, who beat Al Gore in 2000 even though Gore won the people’s vote by 0.5 percentage point. Since Boxer’s bill is an amendment to the Constitution, it would have to pass by a two-thirds majorities in both the House and Senate, as well as three-quarters of all states. But no matter the outcome, it is a sign that more people are realizing that the Electoral College is old-fashioned and outdated.

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

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After Al Gore lost to George W. Bush in the 2000 election, despite winning the popular vote, then-New York Senator Hillary Clinton called to eliminate the Electoral College: “it’s time to do away with the Electoral College and move to the popular election of our president,” she said. Sixteen years and four elections later, the Electoral College lives on, and Clinton made no mention of disposing of it during her concession speech on Wednesday, even though she became the second Democrat in the modern era to win the popular vote yet lose the White House.

Donald Trump won 51 more electoral votes than Clinton, but a little over 250,000 more Americans voted for her. The story was similar in 2000, though Gore’s margin in the popular vote was over double Clinton’s this year. Three presidents in the 19th century–John Quincy Adams in 1824, Rutherford B. Hayes in 1876, and Benjamin Harrison in 1888–were elected despite losing the popular vote. So why is this system in place, and why does it endure?

There are more Clinton voters than Trump voters. But they live in the wrong places. That is one lesson of this election.

— Nick Confessore (@nickconfessore) November 10, 2016

The Electoral College traces its roots to the Constitutional Convention of 1787. Though other systems were considered, including a direct popular vote, the founding fathers and delegates settled on using so called “electors” to represent individual voters. They wanted to ensure people in sparsely populated states were heard, and were concerned the average American lacked suitable information to make responsible decisions, so “electors” act as informed proxies instead.

Slavery played a role as well. Southern delegates at the 1787 convention were worried that they were outnumbered by Northerners. So the Three-Fifths Compromise was reached: slaves would count as three-fifths of a person when  apportioning Representatives and “electors.”

Fast forward 223 years. Following the 2000 election, talk of switching to a one person, one vote system gained steam. Doing so would require a constitutional amendment, however, and as President Obama won the White House in 2008 and 2012 both by the Electoral College and popular counts, the effort moved to the margins. Since Clinton’s unexpected defeat on Tuesday, when she won the popular vote by over 250,000 votes (so far) yet lost the election, focus has shifted yet again on abolishing the system. But not everyone think this is a good idea.

In 2012, Gary Gregg, author and political science professor at the University of Louisville, wrote in an editorial in Politico, “abolishing the current system will strongly tilt elections in favor of candidates who can win huge electoral margins in the country’s major metropolitan areas.” He illustrated his point:

Barack Obama received 3.3 million more votes than Mitt Romney in the Nov. 6 election, but won 3.6 million more votes than Romney in just four cities — Chicago, Philadelphia, New York and Los Angeles. He won those margins without much of a campaign. Now, imagine an Obama candidacy free of the need to appeal to Ohio factory workers, Colorado cattlemen, Iowa hog farmers and Virginia police officers, and you start to get the picture.

Proponents of the system also say a popular vote could end in a catastrophe if the race is close, leading to precinct-by-precinct recounts. But there are plenty of critics of the Electoral College system as well. It does not reflect the will of the people, some say, or it creates “swing” states that attract a majority of campaign resources. One surprising critic of the Electoral College: President-elect Trump. Using his preferred platform for discourse, Twitter, Trump called the current system a “disaster for democracy” just before the 2012 election. That same disaster gave him a victory four years later.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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