After the People Vote: A Guide to the Electoral College

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The mechanisms that lead to the final selection of a president are complex. Some procedures are sketched out in the original Constitution and its amendments, and others in federal law, congressional rules and procedures, state laws, and political party rules. The fourth edition of After the People Vote—featuring new sections on public opinion on the Electoral College and proposals for amending the Electoral College system—explains how our system of electing a president works, especially the processes that kick in after the November general election date.

Introduction

This is the fourth edition of After the People Vote. The first edition was edited by Walter Berns, a teacher, mentor, and later AEI colleague of mine, who saw the need for a volume to explain how our system of electing a president works, especially the processes that kick in after the November general election date. Berns’ constitutional scholarship and love of American institutions are omnipresent, not only in the two editions he edited but also in the two subsequent ones.

The mechanisms that lead to the final selection of a president are com­plex. Some procedures are sketched out in the original Constitution and its amendments, and others in federal law, congressional rules and proce­dures, state laws, and political party rules. These many processes are often loosely lumped under the heading “Electoral College.” But the process of turning the people’s votes on Election Day in November into a president in January involves not only selecting electors but also casting and counting electoral votes and resolving disputes and possible alternative scenarios resulting from vacancies in office or multiple candidates.

Interest in and controversy over the Electoral College go back to the early days of our republic. But the course of the four editions shows how the controversies of the day often shape particular concerns with the Electoral College. The first edition of After the People Vote followed an era when regionally strong third-party candidates had won electoral votes, rais­ing the possibility that no candidate would receive a majority of electoral votes and presidential selection would be thrown to alternative congres­sional selection methods. The third edition followed the 2000 election, in which the Florida election dispute raised issues about how Congress might count electoral votes if they were disputed or if multiple slates of electors appeared. Today, the interest in the Electoral College is less about nontraditional selection procedures as much as concern that the Electoral College vote and the national popular vote have diverged in two of our past five elections. And recent concerns about voting during the COVID-19 pandemic have raised questions about delays in the November 2020 election and how those delays might affect the processes that take place “after the people vote.”

The core of After the People Vote has always been a series of questions about how the electoral process works. In the first edition, Berns thought through many of these questions and provided concise answers and analysis that shed light on possible election scenarios. In the second edition, Berns added two essays, one by Martin Diamond in defense of the Electoral College and one by AEI’s Norman Ornstein on the history of three controversial elections: 1800, 1824, and 1876.

I edited the third edition and contributed an essay on the 2000 election controversy. I provided an excerpt from the original Martin Diamond essay, keeping the timeless parts but removing the material more specific to the 1960s and 1970s effort to amend the Constitution. To supplement that pro–Electoral College defense, Berns contributed a new essay. And law professors Akhil Reed Amar and Vikram David Amar penned a piece against the Electoral College.

This edition has two new contributions. As always, I have updated the central question section, but I have added several additional questions relating to how the Electoral College may be amended. In particular, there is today a movement to change the way we elect a president, not by the traditional constitutional amendment process but by persuading states to pass legislation that would select those states’ electors based on the national popular vote rather than the popular vote in each state. This National Popular Vote effort and other ways of changing the Electoral College are detailed in the new section of questions.

The other significant addition is a chapter about public opinion on the Electoral College by AEI’s Karlyn Bowman. Bowman is one of our nation’s foremost scholars on the history of public opinion. She gives an encyclopedic account of Electoral College questions that pollsters have asked and how the public has responded.

For a four-decade-long project, there are many to thank. The contributors have all been referenced in this introduction. Special thanks are due to Karlyn Bowman and Norman Ornstein, not only for their contributions but also for their mentorship and encouragement over many years. My wife, Evelyn, has been a constant source of love, support, and insight for this edition and the previous one. Jason Grumet, president of the Bipartisan Policy Center, provided encouragement and support.

But this volume owes the most to Walter Berns, who did not live to see this fourth edition but whose spirit pervades its pages. Today, with two recent cases of a divergence of the popular and Electoral College vote, some wonder whether the elevated passions of our polarized politics would sow confusion and undermine the legitimacy of a close and contested election. For this reason, Berns’ aim of writing After the People Vote—to elucidate the workings of institutions he admired—may be his greatest gift to a country he loved.

How the Electoral College Works

The History of Disputed Elections

Arguments for and Against the Electoral College