Everything you ever wanted to know about the Electoral College system--and now have to ask
Q. Let's start with the Electoral College and then get to the
Florida mess. Why did the Founders set up this system?
A. They were divided. Some wanted Congress to pick the President.
Others wanted the citizens to choose directly. The Electoral
College was the compromise.
Q. So these electors, who are they?
A. States decide how they're chosen, but usually they are
loyalists chosen by their parties. Five hundred and thirty-eight
electoral votes are distributed among the states--one for each
member of the House and Senate. (The District of Columbia gets
three.) An elector is chosen for every electoral vote available
to a state. Electors can't hold federal office. Some celebrities
have been electors, like Coretta Scott King, Martin Luther King
Jr.'s widow. This year they include the Florida attorney general,
a retired school administrator in Ohio and a computer specialist
Q. When and how do they vote?
A. On the first Monday after the second Wednesday in
December--we're not making this up--electors gather, usually in
state capitols, and vote. This year that falls on Dec. 18.
Q. Can electors vote how they please?
A. Twenty-six states have no requirement that electors vote in
accordance with the popular vote. Nineteen states and D.C.
mandate that they vote in accordance with the popular vote, but
there's no penalty if an elector fails to do so. Only five states
have penalties for deviating from the popular vote. But in most
of those states, the sanctions are relatively minor--in Oklahoma,
for instance, it's a $1,000 fine. Of the states that are
currently in some dispute, Florida, Iowa and New Hampshire don't
try to bind their electors; Wisconsin, New Mexico and Oregon do.
But it's worth noting that no elector has ever been prosecuted
for being unfaithful. Throughout U.S. history, only nine electors
out of some 18,000 have violated their pledges. It's going to be
hard to find one who's going to break his or hers. Frank Straka,
a Bush-Cheney elector from Arizona, tells TIME, for example, that
he won't switch even if Gore wins the popular vote nationally.
"It's like the playoffs," he says. "One team may score more runs,
but if they don't win the four games, they lose."
Q. Will we know on Dec. 18 how the electors voted?
A. Probably. The Constitution says they shall submit their votes
"sealed" to the president of the Senate, but generally the
balloting has been quite open. We'll know for sure on Jan. 6,
when Senate president Al Gore reads the results before a joint
session of Congress.
Q. Wait. Gore reads the results?
A. Yes. Gore remains the president of the Senate until Jan. 20,
when a new President would presumably take office. Vice President
Richard Nixon, in 1961, had the dubious honor of announcing his
own defeat. Martin Van Buren, in 1837, and George Bush, in 1989,
had the pleasure of announcing their own victories.
Q. What if no candidate gets an electoral majority?
A. It goes to the House, which chooses among the top three
electoral vote getters.
Q. And is it the new House or the old House that makes the
A. It's the new House. When it takes office, it is required to
immediately begin picking a new President if there's a deadlock
in the Electoral College.
Q. So the House just votes?
A. No. It gets weirder. Rather than having individual members
cast ballots, each state delegation gets one vote. Tiny Rhode
Island has as much clout as California.
Q. Does the District of Columbia vote in the House?
A. Nope. The Constitution is pretty clear that only state
delegations can vote.
Q. What if a delegation is evenly split between parties?
A. If a candidate doesn't win a state's majority, then the state
is listed as "divided" and its vote is forfeited.
Q. Do you need 26 state-delegation votes to win, or just a simple
A. You need 26 states.
Q. What if no candidate gets 26?
A. It goes into more balloting, and horse-trading for votes. Some
members may be pressed to switch to the way their states, their
districts or the national majority voted. Some may be swayed by
the prospect of an ambassadorship or a big Cabinet job. The
delegations in the new House, however, are likely to be dominated
by the G.O.P., thus favoring Bush.
Q. The Vice President is picked by the Senate, right? And he can
be of a different party from the President?
A. Yes! The Constitution says the Senate must pick from the two
highest vice-presidential vote getters in the Electoral College.
Q. We know it's the new House that votes. But is it the new
A. Yes, and in contrast to the House, its members vote as
individuals, not by state.
Q. Can Lieberman be a member of that new Senate if he hasn't
resigned yet? He won't potentially be sworn in as Vice President
until Jan. 20, right?
A. Yes. Lieberman will be a member of the new Senate for a few
days and then he could resign as late as noon on Jan. 20, when,
if his ticket wins, he'd become Vice President. He's not allowed
to hold both jobs at the same time.
Q. If the House can't decide who should be President by Jan. 20,
when Bill Clinton leaves office, what happens?
A. A number of things could happen. The Senate could pick a Vice
President, with 51 Senators voting for either Lieberman or
Cheney, and one of those two men would become President.
Q. If the Senate splits 50-50, can Al Gore break the tie?
A. It's not clear. As president of the Senate, Gore has the power
to cast tie-breaking votes, but the 12th Amendment calls for a
majority of "Senators" to vote for Vice President, and Gore is
not a Senator. Count on another court challenge.
Q. Assuming Gore can break the tie, he could vote for Lieberman?
A. Sure. That sets up this scenario: Lieberman would become
President and then appoint Gore Vice President, subject to
Q. O.K., Florida. What happens if the state's electors are still
under legal challenge by Dec. 18, the date they have to vote?
Could federal or state courts enjoin the electors from voting on
A. It's possible but unlikely. First, courts are generally loath
to get into electoral issues, let alone one this hot. Also, since
the Constitution mandates that the electors all vote on the same
day, if Florida's electors don't vote with the rest of the
country on Dec. 18, the state would forfeit its electoral votes.
Q. What happens if a Florida court orders a new election in some
A. A court can do what it wants, but again, if the electors
haven't been chosen by Dec. 18, Florida's electoral votes go into
Q. If Florida can't get its act together by Dec. 18, does Bush
or Gore still need 270 to be President?
A. Nope. They need only a majority of those states that have
appointed their electors. Without Florida, that would be 513
electors, and 257 would be enough for a majority. Gore has 262
excluding Florida and New Mexico; Bush has 245.
Q. If the election stays muddled in Florida, could the state
legislature fix this?
A. Yes. The legislature could reconvene and appoint electors
itself. Amazingly, the U.S. Constitution does not require that
electors be popularly chosen--only that the states come up with
some method for appointing them. Under federal law, the Florida
legislature has until Dec. 12 to pick new electors. It could even
vote to let the Governor pick the electors--but don't count on it.
Florida has a G.O.P.-controlled legislature, but it would be
toast if it usurped popular control of an election.
Q. Could two opposing slates of electors "assemble" in Florida on
Dec. 18, the way two slates did in the contested 1876 election?
Could both send their votes sealed to Gore, the president of the
Senate? Does he have a say in which one he opens?
A. Well, the only electoral votes that Gore could open are ones
"certified" by the Governor. (This is different from state
officials certifying the election.) If the Governor certifies the
Bush-Cheney electors and the Gore-Lieberman electors send in a
rival ballot, it's ignored. The only exception here is if the
Senate and House object to having the Bush-Cheney electoral votes
counted. As for Gore, his role under the Constitution and federal
statute is pretty much just reading the ballots or breaking a tie
in the Senate over the Vice President. But the Senate and House,
concurrently, can make objections to electoral slates and prevent
them from being counted.
Q. O.K., let's assume a total nightmare. The Electoral College
doesn't pick a President, the House and Senate don't pick a
President--all by Jan. 20. What happens?
A. Clinton has to leave office and the Speaker of the House
becomes President. If he can't serve, Strom Thurmond, the
president pro tempore of the Senate, becomes President.
Q. President Thurmond?
A. Under this system, anything's possible.