Electing a U.S. President

• How a U.S. President gets elected is both simpler and more complicated than most people think it is.

• What is this Electoral College and why does it exist?

• How can you participate in an election if you don’t know how it works?

Every four years, the United States goes through the ritual of electing a President. I use the term ritual for two reasons. First, most Americans’ understanding of the election process is based on custom or rites rather than the law. Second, most of the customs Americans follow directly contradict the actual process of electing a President of the United States.

Many years ago, I was in Raleigh, NC working on a project with an international team. Every day the whole team would go out for lunch. Since it was a presidential election year, and I was the only American on the team, I was asked about the apparently convoluted process of electing an American President. This was before I had begun studying the Constitution, so I explained the process as best I could based on the customs I had been taught. Today my answer would not only be more coherent, but would include references to the actual laws it was based on.

How it Begins

The first, and probably most fundamental misunderstanding most Americans have about the presidential elections process, is the belief that they vote for President. They do not.

 

Like primaries, before 1964 and the ratification of the Twenty-Fourth Amendment, the idea of the people voting for President did not exist in the Constitution.

 

In fact, the Twenty-Fourth Amendment did not say that people voted for President, only that they could not be denied the right to vote in such an election for failing to pay taxes. It’s yet another example of lack of understanding of the Constitution by Congress and the Several States. The reporting of a national popular vote for President is another lie, since there is no such thing. The people do not elect the President, the states do.

Based on Article II, Section 1, the states have established the manner of appointing electors to be based on a popular vote in the state for a political party. The details vary from state to state, but the general process is the same. Each political party puts together a slate of party faithful who pledge to vote for their party’s candidate. When the state puts together their ballot, they list the party candidates.

In the past most states noted that you were voting for electors for that candidate, although recently that has changed. In the 2020 elections 37 of the 50 states (74%) lie on the ballots, claiming their citizens are voting for the actual President and Vice-President, even though they aren’t.

So even when the ballot tells you the vote is for electors for President, what you’re actually voting for are pre-selected operatives for a specific party.

Presidential Electors

After election day in November, each state determines which slate of electors to appoint. These electors meet in their state on the first Tuesday after the second Wednesday in December, (3 USC §7).

This is the only federal or national election in the United State. While elections for the House and Senate are for federal offices, they are still state elections. Some states require their electors to vote based on the results of their states’ election. However, in some states the penalty for not voting based on the state’s popular vote may not be all that significant, which has led for some to call for the electors to be unfaithful to their pledge in an attempt to win the election.

Actually, the presidential electors cast two ballots, one for President and another for Vice President, as required by the Twelfth Amendment:

Since most state laws appoint their electors in a “winner take all” manner, all the electors vote unanimously for their party’s candidates. These electors are party apparatchiks, so they simply vote for their party’s ticket, which was established through a combination of Primary Elections and other internal political machinations. Once the electors have done their duty to their political party, the list of a single name for President and another for Vice-President is signed, certified, and sent to the sitting Vice-President in their role as President of the Senate.

Counting the Elector’s Votes

Next comes the counting of the votes of the presidential electors. This has been codified into law by Section 15 of Title 3 of the United States Code. The process starts with the President of the Senate opening the certificates to be counted.

Sounds simple enough. When does this counting happen?

According to the Twelfth Amendment, the only role the President of the Senate has during this session is to open the certificates and then have them counted. Congress confirmed this in section (b) of §15.

Sadly, this is where Congress has begun interfering with the election process.

Yes, this is a minor point. The Constitution doesn’t say how the votes are to be counted. After all, I guess they would assume a group of intelligent men could figure out how to safely and accurately count the votes. Congress, on the other hands, wanted their input on the process.

If you read the Twelfth Amendment, you see Congress has no role in the presidential election unless none of those voted for an office receives a majority. Here we see Congress has decided for themselves that they will pick the tellers who will count the votes. That’s not the only way Congress has decided to interfere with the election.

It starts with a subtle point:

What are these purported certificates? The Constitution says nothing about purported certificates. The Twelfth Amendment says the President of the Senate will open the certificates he has received from the states and have them counted. What does the section 5 say?

Who the state electors are is none of the United States’ business; it is solely a state matter. I suppose the reasoning behind sending the list of electors to the Archivist of the United States is to allow fake certificates to be identified and not counted. In fact, federal law claims to establish a rather complicated process for the sending of the certificates from the electors to the President of the Senate and others. The problem is, the Constitution does not delegate to Congress the authority to tell states they have to register their electors with the United States or to have their certificates be sent anywhere but to the President of the Senate. That’s not all of Congress’ interference in the election.

Again, the Constitution does not give Congress any say in counting of the presidential electoral votes; they are there only to observe. So what are the reasons Congress thinks it can object?

Remember back to January 6th, 2020? There were several states that did not lawfully appoint electors. Not because of some law made up by Congress, but because the manner of appointing them was modified by state courts or the state’s Secretary of State, not the legislature. Those objections though, should have been dealt with at the state level, not the Congress.

Majorities

With the election process dominated, and in many cases controlled, by the two major parties, it seems fairly unlikely that that a candidate would not receive the votes of a majority of the electors, as required by the Twelfth Amendment.

 

However, as dissatisfaction with the two dominant parties grows, this becomes more and more a possibility. There are two things the American people need to be aware of should such a situation happen.

 

In the case of the House choosing a President, the state delegations vote by ballot. That means each state gets a single vote. Since the Congress is seated before the votes for President are counted, and the partisanship that exists in both houses is so rampant, the choice would ultimately be decided by the majority in each state’s delegation in the House.

As I’ve noted, the process is similar if no candidate for Vice-President receives a majority of votes.

Inauguration

Only after the decisions have been made as to who will be the new President and Vice-President, are they legally considered President-elect or Vice-President-elect. These positions have absolutely no power, but we recognize this as a time for them to work on their transition to office at the inauguration.

Before their terms begin, the President and Vice-President must take an oath or affirmation of office. The President’s oath is specified in Article II, Section 1, Clause 8 of the Constitution.

Then, and only then, does the United States have a new President.

Conclusion

If I could go back in time and explain to those visiting teammates how our presidential elections work, I would focus on three points.

1. The political parties choose their candidates through a combination of primaries, caucuses, and internal negotiations.
2. The states elect the President based on the advice of their citizens.
3. The vast majority of the American people are unaware of points 1 and 2.

While many people say “Knowledge is Power”, that is not actually true. Knowledge only has power if it’s used for some action. Now that you have the knowledge and a better understanding of how the United States elects a President, I hope you will use it to exercise your power as a United States citizen. Use this knowledge to push for your state to accurately portray who is being voted for on Election Day. Demand that they follow the Constitution in the appointment of their electors for President. Last, and probably most important, choose wisely who you vote for as presidential electors.