THE WASHINGTON FOREIGN PRESS CENTER, WASHINGTON, D.C. (Virtual)
MODERATOR: Welcome, everyone, to the Washington Foreign Press Center’s virtual briefing with Thomas Neale for an overview on the Electoral College. My name is Jean Foschetti and I am today’s moderator. Just a few logistics before we get started. If the Zoom session fails or disconnects, please rejoin or dial in using the phone number provided in the registration link. This briefing is on the record and the contents of this program will be recorded and made available to the participants after its conclusion. Participation in this briefing implies your consent to being recorded. We will email you the transcript as soon as it becomes available. When we enter the Q&A session of this briefing, when called upon please unmute yourself to ask your question. Also, a reminder to please rename yourself with your full name and outlet if you haven’t already done so. It helps us to know who to call on for questions. You are also welcome to turn on your video if you wish. Just to note, the views expressed by the briefers are their own and do not necessarily reflect those of the Department of State or the U.S. Government. Participation of briefers in FPC programs does not imply endorsement, approval, or recommendation of their views.
And now to introduce our briefer, Mr. Neale. He is a specialist in American national government at the Congressional Research Service of the Library of Congress, known by its acronym, CRS. Sometimes referred to as “the think tank of Congress,” CRS provides nonpartisan information services, research, and policy analysis for the members and committees of Congress. Mr. Neale has testified before Congress on various issues and has written over 100 reports for them. His research and analysis includes U.S. elections with a concentration on the presidency and the Electoral College, American constitutional and political history, and the presidency, including qualifications, terms of office, tenures, succession, and disability. Today, Mr. Neale will provide an overview of the history of the Electoral College and why it was implemented, the mechanics, the selection and allocation of electors, and how the actual casting of votes happen.
So, Mr. Neale will make his opening remarks and then I will return and open it up for Q&A. And with that, Mr. Neale, I’m turning it over to you.
MR NEALE: Good morning. Thank you, Jean, and welcome to all our interlocutors this morning. I’ve done this for a number of presidential elections in the past. Usually it’s at the Foreign Press Center in Washington, so this is a new experience, I think, for all of us. But I welcome you this morning. We’re going to talk about the United States unique system of electing its president, and I’ll try and compress my information as tightly as possible to give you more time for your questions.
So to start off, let’s just review how the Electoral College works. When Americans go to the polls they vote by whatever system they have in their particular state, county, whatever, for electors for president. Now, some places you don’t even see the name of – name – word “electors” or the names of – certainly not the names of the electors. But they’re actually voting for people other than the candidates for president and vice president, and that’s part of the peculiar distinction of the system.
Now, how does it work? Well, each state is allocated a certain number of electors and these are signed according to the combined total of their Senate, U.S. Senate and U.S. Representatives in Congress in the House of Representatives. So that gives us a total of 535 – 538 electors, that’s one for every senator, one for every representative, plus three for Washington, D.C., the District of Columbia, the national capital. Now that does not mean that the electors are members of Congress. It’s an entirely different office. It is a federal elected office, and the qualifications for that office are only that you cannot be a – hold an office of what we say trust or profit, under the United States, in order to be an elector, and that includes Jean or myself. Nobody who is a federal civil servant or an elected official can be an elector.
So the combination of the allocation of electors is such that obviously the states with large populations have more electoral votes and therefore more influence in the outcome of the election. In the giant – the Jupiter, the giant among states of course is California, which has 55 electoral votes. That’s the largest. Some of the big – other big states are, for instance, Texas is 38 and Florida 29, New York 29, Pennsylvania 20, and so on. Down the list we get to the least populous states such as Alaska and Wyoming, Vermont, Delaware, and they only have three electoral votes because they have one member in the House of Representatives and two senators – one plus two equals three. And then Washington, D.C. as a – did not vote at all in presidential elections until 1964 when the Constitution was amended to provide for the District of Columbia, the national capital voting for electors.
So we have, as I say, a total of 538. A majority, a real majority of 270 electoral votes is required to elect a president and vice president. Now, the – another peculiar part of this system or a part of the system that is unusual is that the states have the authority to allocate the electoral votes any way they see fit. Now, most states, nearly all states allocate their electoral votes on a first-past-the-post or a winner-take-all system, which means therefore that the number of electoral votes – all the electoral votes in the state are awarded to the candidates for president and vice president who won the most electoral votes in that state. So there’s not a proportional award of electoral votes within the state, but that is not to say the states couldn’t do that if they wanted do, because it is – it’s authority left to the states. There are two states that use different methods. The – Maine and Nebraska award their electoral votes on their electors on the basis of who won the statewide vote and who won the vote in their congressional districts. So that’s a slight variation on a theme, and it gives you an idea of the diversity involved in this system.
Now, the question is – next arises, well why – what is the history of this? Why do we have the Electoral College system? My first answer is that at the U.S. Constitutional Convention in 1787, there was a great divergence of opinion on how the president should be elected. Now almost everybody was concerned that the president should have independent authority and be one of the pillars of our system of separation of powers and checks and balances. However, they couldn’t decide how this chief executive, powerful chief executive could be elected. And then there was a great deal of discussion during the convention – state legislatures, election by Congress – and they were unable to make a decision.
Quite late in the convention they needed to get on and have finished and present it to the states, and it was suggested by a committee meeting behind closed doors that we should have an Electoral College because that would involve – leave the states in charge of determining how the electors were chosen. So if the state wanted to choose the electors through its own state legislature, that’s fine. They wanted to allow the electors to be chosen by popular vote, that’s also fine. Now in time, the popular vote option prevailed as during the 19th century the United States became more and more democratic and the power of the vote was extended to more and more people, although obviously not to people of color until after the Civil War, and even then.
So what you have now is that all of the electors are chosen by the people. Now, obviously this system has endured for 231 years since 1789, and again the question is raised: Why has it not been changed? Because it is certainly at variance with what we regard as general popular election of heads of state, particularly in states that have what I would call a presidential republic, in which the president is both chief of state and head of government and exercises broad authority. The most important reason, I think, is because it has tended to work reasonably well, at least until recent years. It has, on almost all occasions, delivered the – a majority of electoral votes to the candidates who won the popular vote, not necessarily a majority – it’s not like France – 42, 43 percent, as long as you have a majority of the Electoral College.
Another reason is that – so there hasn’t been an impetus to change. Maybe there will be as a result of the elections of 2000 and 2016 in which candidates won the electoral vote but did not win a plurality of the popular vote. Another reason is it’s very difficult to amend the U.S. Constitution, the most – the method by which all of our 27 amendments – and that small number of amendments gives you an idea of why it’s – of how – why it’s so difficult to amend the Constitution. It requires a proposal by Congress by a vote of two thirds of the members of both chambers of Congress, and then the proposed amendment is sent to the states, and there’s an even higher hurdle there. A two-thirds majority of – excuse me, three-fourths majority of the states must ratify any proposed amendment, and that usually within a set limit of seven years. So that’s 38 states. And that gives you an idea.
We did have a good deal of serious interest in Congress in 1950s and ‘60s in establishing a direct popular election system under one or more different variations. Those came close. They were – one was proposed in the House but not in the Senate, and another time it came close in the Senate but the House did not vote on it. And essentially I think that proposals for reform failed largely because it was a high hurdle, and there was insufficient public interest in changing the system.
Now, I’ve been tracking this issue for many, many years, and after the election of 2000 I felt sure that there would be proposals to move to a simple democratic popular vote, like most republics. And – but there wasn’t. Congress did other things. They improved the election system but they did not address the question of amendment of the Constitution.
So that gives you an idea of how the Electoral College works. And what I’d like to do now for the balance of my formal presentation is just give you an idea and walk you through the road to Election Day. And first I’d like to point out that this is not just the election of the president and vice president. We are also in the United States going to be electing 35 senators, roughly one third of the Senate – as you know, senators serve six-year terms which are staggered. Every even-numbered year, one third of the senators are re-elected. Now, we have a couple of special elections this year, so that brings us to 35 rather than 33 or 34. All of the House of Representatives will be elected, too. Representatives serve a fairly short term, two years. The whole House is up for election every even-numbered year.
Now also, as you know, it’s a federal republic and there are different layers of government, and the states in their own sovereign way arrange their own affairs according to their preferences. We will have 13 governors of the states elected this year, although most governors are elected on the off year, which is the even-numbered year between presidential elections, i.e. 2018 or 2022. Also, most of our state legislators – now, recall that each state except one has – mimics the federal system in that it has a two-house bicameral state legislature of a senate and a lower house, go by various names – so the vast majority of those legislators will also be elected in 2020.
Now, voting around the country in states is not covered by a national statute with respect to how the polls are administered and what times the polls are open. In most states, it’s 6 – it’s generally 6 a.m. in the morning until 9 p.m. in the evening. And if you figure that the United States, between Hawaii and Maine, covers about six time zones, you can envision the fact that the polls in Hawaii are closing when it’s probably about three in the morning in Maine. So it’s a very broad continental vote.
Now, we have 255 million Americans who are eligible to vote this year. Most of them are registered; not all are registered. Registration’s become much easier in the past 20 years – in fact, some states do not require registration at all. You just walk to the polls, prove that you’re a resident, and you can vote.
Another important development – very important development; I can’t overemphasize this, in this election – is that the way people vote is – has evolved very quickly and with the potential for great impact on the election. Now on – in classic American history, everybody goes to the polls to vote. They go down to their – wherever the voting station is – the school, the union hall, the church, et cetera – they cast their votes there in person. This year we will have a huge change in that, two new methods – well, one new method and one expanded version of an old method.
The new method is early voting. And you’ve – I’m sure you’ve seen and read a lot about that in the American domestic media. And that is that people may either apply for a ballot from their local authority, their state authority, or they – in some cases, for instance, they’re sent out automatically. I’m a resident voter of the District of Columbia and our elections authority sent my ballot for early voting weeks ago. And what you can do if you’re a voter is you mark the ballot – and it’s all computer coded, barcoded and everything – and then you can take it to a designated drop-off place. And those are usually your public institutions like libraries, or the U.S. post office, or local government offices. You can drop it off there. So that means you can vote at your convenience well in advance of Election Day, which I failed to mention is on November 3rd, Tuesday after the first Monday in November, which is always federal Election Day.
The other increased use of a classic means of voting is absentee voting, which is now – we call voting by mail, for – from time immemorial, people who were unable to be in their home jurisdiction at election time could apply for an absentee ballot. That includes people who were on business or people who were in the civil – federal service away from home, or military, stationed outside the United States or away from home. That also has greatly expanded. And the – where there were in many states at one time fairly stringent requirements as to how you qualified for one of these absentee voting – or voting by mail, as we now call it – those have been loosened a lot. So anybody – in most states, almost anybody can apply for voting by mail, and no reason given other than their own convenience.
So the last projection I saw about the early voting and voting by mail is 50 million people have already voted, which is extraordinary. You may have as many – if you consider the fact that the experts are telling us we may have about 138 million popular votes cast in this election, the fact that 50 million of them have already been cast today on October 23rd – and that’s 11 days before the election – it really indicates a major change in the way we are – we do business with respect to the election system in the United States.
Now, continuing on the road to Election Day and beyond, presidential elections begin much earlier than the election year. President Trump, for instance, declared his intention to run for a second term the day he was inaugurated in 2017. And they begin to gear up a year or sometimes two years before, and the campaign – early campaigning is raising money, making appearances, doing as they call “listening tours.” The second part of the campaign involves the actual campaign to secure the nomination of the party. And that is through a series which you may be familiar with of state-run events, either primary elections – which are actually physical elections run by the state election authorities – or there are also caucuses, Iowa caucus being the most famous, where they’re more of an informal party-run gathering of members of the party to determine – all of which determine their delegates to the national convention, which nominates the presidential and vice presidential candidates and usually also proposes the party’s platform, which is a statement of principle and a statement of proposed policies that the parties in most cases will submit as part of their solicitation for popular votes in the election.
National conventions – the primaries generally are done by June. National conventions are normally – in a normal year, and we all know this is the least normal year that any of us can remember, I think – they – the conventions are held in July and August. And if you’ve covered the conventions before, either remotely or you’ve been there, you know they’re like a huge American carnival (inaudible). Not this year, to a much less extent.
So then we proceed to the general election campaign, which runs basically from August through Election Day. That has changed a great deal. There’s considerable emphasis placed on election – excuse me, on the debates. We saw the last debate last night. As you know, one was cancelled. The first one and the vice presidential debates both came off with various comments and criticisms that I’m sure you are familiar with.
The strategies are focused to considerable extent on the – of course, on winning enough states and enough under – states under their winner-take-all provision for electoral votes to gain the 270 votes in the Electoral College. And the general strategy for achieving that is to go to what we call the battleground states, the battleground states sometimes called “swing states.” And these are states which generally have a significant number of electors – 10 or more, 15 or more – but the other important part of that is that these are states which are capable of changing their vote from election to election. In other words, they’re not strongly – so strongly affiliated with one party that they could not possibly vote for the other.
Now, some of the – perhaps the most populous and probably the most important swing state at the point of this election is Florida, which as I say has 29 electoral votes. It’s a huge block of votes. And it is a state that has swung both ways in the past, and it is a state where both the Trump campaign and the Biden campaign are spending a tremendous amount of resources, time, money, candidate appearances, surrogate candidate appearances. A state – and other states, for instance, Pennsylvania, which President Trump took in 2016, is up – as they say, is up for grabs, and both parties are devoting a great deal of resources to it.
Some big states are not battleground states. California is a blue state. It’s, as we say, a blue state; it votes Democratic. A red state votes reliably Republican. California has always, at least in my recent years, in the past 30 – 20 to 30 years, California has been reliably Democratic, so we don’t consider that a battleground state. Up till now, Texas has not been considered a battleground state because it has voted reliably Republican for at least the past 20 to 30 years. That may be changing. And states that are moving from one to another – red states that may because of differences in political viewpoint, sociological differences, differences in the ethnic composition of their populations, may move from one column to the other. Those that are in the process of moving or may be moving, we call those purple states. Red and blue equals purple, as you know. So this is another important element in the campaigns.
Finally, Election Day and beyond. As I said, November 3rd is Election Day, and all 538 electors will be, we hope, chosen in due – in good time during that period. This year, because of the contentiousness of the election, it is likely that the results in the various states and also the fact that we have so many early – so much early voting and so much absentee voting, voting by mail, it may take longer for the states to count.
States have until December 14th to count and ascertain their votes. That is the date on which the electors meet. The Electoral College is – those 538 individuals will meet separately in their states. They do not meet jointly. The reason for that was the founding fathers were afraid that if they got together, they would engage in political maneuvers. So they meet in their states. Usually it’s in the state capital and sometimes it’s a big ceremony. The electors make – mark their votes on the ballots, and the ballots and the official popular vote results are all sealed up and sent to Washington and various other places, officials, where they are kept as a source of record.
And then on January 6th of next year, the Congress meets. The new Congress, the 117th Congress, the one that will be elected on November 3rd, will meet in what we call a joint session, just the same idea as the president’s State of the Union message. They will all meet. Five hundred thirty-eight of them meet in the House of Representatives chamber and the votes, the results from the states, the electoral vote results in the states will be opened and counted, and then the winners will be declared. And here is an interesting point on that is that the vice president of the United States, as you may know, has – also has the – holds the position of president of the Senate. So the vice president gets to preside over the electoral vote count session and the vice president declares who the winner will be.
So in this case, as has happened frequently in the past, Vice President Pence will be in the position of either declaring himself re-elected as vice president and President Trump re-elected as president, or, to the contrary, it will be his duty to declare that he has been defeated for re-election and so has the president, President Trump. So that’s kind of the icing on the cake. Look back at Al Gore, who you may remember was vice president in the year 2000, extremely contentious election, and he had the good grace to preside with dignity at the electoral vote count session.
And finally, then we move on two weeks later to January 20th. At noon on January 20th, the terms of office of the outgoing president and vice president expire and the new ones begin at roughly noon, and we see the process come to its full circle to the beginning of a new four-year administration.
So at that – at this point, I’d be very happy to take whatever questions you may have or comments.
MODERATOR: Great. Thank you so much, Mr. Neale. For the journalists, please use either the chat feature to enter a question or the raise-hand function to – so I can call on you.
For our first question, we’re going to go to Jana Ciglerova from the Czech Republic. Jana, can you please unmute yourself? And you can ask your question.
MR NEALE: Good morning.
QUESTION: Thank you for this. It’s been really very interesting. I was wondering, there is some discussion going on that D.C. and Puerto Rico might become states. What would it do to the Electoral College and the ratio of the votes if this happens? And how much likely do you see it happening? Thank you.
MR NEALE: Certainly. Well, as I mentioned, the District of Columbia does currently vote in presidential elections, so that would not be changed. Interestingly, Puerto Rico with a population of, I believe, about three and a half to four million people would add to the formula. Of course, admission of Puerto Rico as a state would be by an act of Congress, and I think that would depend on the willingness, the expressed willingness of the people of Puerto Rico to desire to join the United States. And there are enormous arguments pro and con on that.
The most recent referendum that I’ve seen or public opinion polls are that Puerto Rico is happy with its current status as a commonwealth and a – in Spanish, it’s a estado asociado libre, an associated free state in a voluntary relationship with the United States, per se. If it were admitted, it would – Puerto Rico would probably qualify for about five members of the House of Representatives and two senators, of course.
But with respect to the House of Representatives, the size of the House was set in 1920 at 435 and they have been very unwilling to expand that ever since. It seems to be 435. If I said 535, I’m sorry. So they would probably have to do a – do that during a reapportionment period, a redistricting and reapportionment. Every 10 years, the House of Representatives, some states that gain population win more seats, others lose seats. So it would probably have to be accommodated by that, and they would have to decide whether they’d want to expand the House.
It would be, from the political standpoint, just speaking myself, that Puerto Rico is not – it might be considered to be a blue state, but actually, there’s a pretty strong two-party system in Puerto Rico, and I think that you probably have – it would not be a done deal that it would become a Democratic state or a Republican state.
MODERATOR: Great. Thank you so much. For our next question, it comes from Jodi Klein of South China Morning Post, and Jodi asks: “How does it work for Americans abroad to vote, and roughly how big is that group? And has anything changed this year with COVID in terms of voting with this group that are overseas? Thank you.”
MR NEALE: Thank you, and good morning, Jodi. Good whatever time of day it is for you. It may be the middle of the night.
In any event, that is a good question with respect to the COVID changes. I am sure that it’s been encouraged that people who are U.S. citizens overseas, either civilians or U.S. Government employees or U.S. military personnel, that they make use of mail – mail-in voting or early voting to the maximum extent possible. There is federal legislation, the Uniformed and Overseas Citizens Voting Assistance Act, that covers this and makes special provisions.
Now, in the years past, people used to go to embassies and consulates. I think that’s pretty much a – been superseded by encouraging people to apply to their jurisdiction, their normal jurisdiction where they would live in the States for an absentee ballot, voting-by-mail ballot. I’m sorry I can’t speak to whatever precautions or changes in procedures may have been made due to the COVID-19 pandemic.
MODERATOR: Thank you. For our next question we’re going to go to Yu Jin of Sina News, China. You may unmute yourself to ask your question.
QUESTION: Hi, thank you very much for doing this. I have two questions that was concerned with the reform of the system.
The first one, as you mentioned, that the system has been working for decades until about 2000 and the year of 2016 that people realized this is not working. So I was wondering what changed in the politics at the year of 2000 and 2016 that why is it this result of the Electoral College system is not inconsistent with popular vote? What happened in the politics that leads to the problem?
And second is also about the future reform. I was listening to a podcast by – The Daily from The New York Times yesterday. It was very interesting that they mentioned the – since states can decide the – how the electoral vote – how to – the states can decide its own electoral votes, so right now is there are already 15 states that formed a pact that their electoral vote are inconsistent with the popular vote, but it’s not happening in Republican-controlled states.
But – so The New York Times was saying that the only time that can cause change is when Republicans are actually hurt by the result of the – of this problem. For example, if Texas turning red and then a lot of Republicans in Texas will – their votes will be meaningless, just like California right now. So the only time that there will be a change is when both parties are hurt by this – by the problem. So I was wondering, what’s your take on that? Thank you.
MR NEALE: Thank you for your question. The first part of your question is very interesting and it’s been given a great deal of thought by political commentators and analysts. And as you say quite rightly, between 1888 and the year 2000, a period of over a century, the Electoral College always reflected the popular vote.
One of the theories that I have heard and that makes some sense to me is that we have been roughly since then in a period of very close – not only do we have very closely-matched partisan strength in our two major parties – in other words, the Republicans and the Democrats have been very equally matched, but also the fact that we have had these changes in the way the votes may be tabulated, and so the counting can be more prolonged and also there – also within the same realm, the same part of the development of the extremely close party divisions, the fact that there’s – it’s an era of very high partisanship as well, as is evident I think to all of us.
Interestingly enough, Karl Rove, who was an advisor to President George W. Bush, has suggested that this is a period – it closely parallels a period of about 20 to 30 years in the late 19th century, which also saw very close division of the parties and which also, interestingly enough with respect to that connection, there were two elections where the popular vote winner was denied the presidency, 1876 and 1888.
Now, with respect to the second part, you’re drawing a – you’re mentioning what is a very interesting phenomenon called the National Popular Vote Interstate Compact. And that is an agreement among states that choose to agree with it that they would, using their authority under the Constitution to grant the electoral votes in any way or choose the electors in any way they see fit, they would agree that the states would take this authority and the compacting states – states that are in agreement – would put all their electors to the candidates who won the nationwide popular vote. The nationwide popular vote.
Now, the interesting part about this is – two interesting points. One is that that would mean, for instance, if you were the state of California and you were part of the National Popular Vote Interstate Compact, and California being a largely Democratic state, if the Republican candidate won the nationwide popular vote, the legislature under the compact would be obligated – obligated – to choose the Democratic – the Republican electors, and vice versa. Say for instance a Republican state and the Democratic candidate had won the nationwide popular vote; they would be required as a condition of their membership in the compact.
Now moving beyond that, as you say, the compact has gained the support of 15 states, including the District of Columbia. It does not – would not come into effect unless or until the number of states joining the compact reached a majority of electoral votes. In other words, it doesn’t come into effect until it could be successfully deployed, which is a big if because, as you also correctly point out, Republican states are not particularly interested in this. And in fact, one state, a purple state, referring earlier, Colorado, where the national popular vote was adopted by the legislature, the Republican Party and the supporters are – and other people who oppose national popular vote, not just Republicans, have been able to secure a ballot referendum that would repeal the state legislature’s action in doing this. So it is controversial.
And then finally, the third point is that the interstate compact under the Constitution generally require approval of the state, of – excuse me, of the Congress. So it’s uncertain at this point whether the National Popular Vote Interstate Compact, if it were to gain a number of states that dispose of a majority of electoral votes, it would be – it’s unclear whether that compact would need to be approved by Congress or not. Of course, it’s – as we say, it’s a moot issue – I’m not a lawyer, but I can use those terms, okay, until – unless or until the states – enough states accede to the interstate compact.
But it is an interesting development, and the whole point of national popular vote is that it would always ensure that the candidates who won the most popular votes would win the presidency regardless of the Electoral College as it’s currently – currently set in the Constitution law.
MODERATOR: Thank you. For our next question, we’re going to go to Jose Lemon from Radio Renascenca from Portugal. Jose, please unmute yourself and ask your question.
QUESTION: Are you listening to me now?
MR NEALE: Yes.
MODERATOR: Go ahead, Jose.
QUESTION: Okay. Sorry. Professor Neale, nice to – meeting you. Thank you very much for your remarks. My question is about – you mentioned the vote by – the early vote and the way it works, but I’d like to hear from you about vote by mail. As we know, there are lots of doubts around the votes by mail this year which is a peculiar year. Millions of people are voting by mail, but the doubt’s in a certain turmoil. How does it work? Is it – in your opinion is it possible, for example, to count all the votes that arrive by mail on the very evening of the election, or there will be a turmoil after that, people – some people are saying that it will be for weeks to count all the votes.
And how is this going to play with Trump campaign saying that there’s a rigged system and there will be probably some kind of even violence apparently around some assembly, voting, counting, because the – what is coming out in the beginning of the evening will not probably be the real result that will come out in the next days. So how do you foresee this? Could you elaborate a little bit about this, please?
MR NEALE: Well these are good points. A lot of this depends, of course – let me say, first of all, that there has been a great deal of concern about the ability of the U.S. Postal Service to deliver these voting-by-mail ballots in a timely fashion, and there’s been commentary both pro and con on that. And it seems to me there’s a consensus that the Post Office needs to expedite the handling of these ballots to make sure they’re all – and secondly, with respect to the second part of the question, it’s absolutely true that there will probably be – it will probably take longer to record, receive, and count all the voting-by-mail ballots, and that may lead to a delay in the ability of the states, the individual states to declare the results in the state, and therefore, declare which slate of electors has been elected from the state.
Now, the procedures vary from state to state. For instance, Florida, as soon as these votes are received, either early voting or voting by mail, they are counted. Now, in some other states, they don’t begin to open the early voting and voting-by-mail ballots until after the polls have closed – until whatever, 8 or 9 o’clock on the evening of the election. And – hold on a moment – there. Sorry, I lost the video for just a moment.
So that is a problem we’re going to face. And it has been suggested that the amount of time between the election day, November 3rd, and the date on which the electors vote, December 14th, may not be adequate. A further complicating factor is that it’s been suggested there will be a lot of legal and other sorts of contests to the results because of the extraordinary political – it’s a hotly contested election, let me fall back on that.
So we are hoping that the states are making provision to expedite the count of the votes. And an interesting point that you raise is that – or that I gleaned from your question is that the states – each of the – the determination of the vote within a state is not covered by a federal law. That is the authority of the states, and all the 50 states and the District of Columbia have various deadlines and means and procedures by which the votes are counted and the results are ascertained. So that is – that’s another factor with respect to timely counting of the votes.
Now, two bills have been introduced in Congress that would extend the period between the election and the meeting of the electors. I don’t think either of these is going to go anywhere because Congress is – what little time it has left in session is obviously caught up in some very – other areas such as, for instance, the pandemic relief bill and that sort of thing. So – but that – it’s well worth looking at in the future. So it’s an open question. I think the states are well aware of the challenges, and we hope that they – that they’ll be able to make a prompt, or at least as prompt as possible under the circumstances, determination of who won in each state, which I realize is not a complete answer to your question, but I hope I’ve shed a little light.
MODERATOR: Thank you. For our next question, we’re going to go to Raj Rangarajan from International Press Syndicate of India. Please unmute yourself and go ahead, Raj. You’re not unmuted yet. There you go.
QUESTION: Hi, Jean and Thomas. Thanks a lot for doing this. My question is: Since the Electoral College always overrides the popular vote, is it really necessary for this four-year exercise every time, because invariably they override it. And the same thing happened last – during – in 2016, right?
MR NEALE: Right.
QUESTION: So since it always overrides, does it really make sense?
MR NEALE: Well, it’s – if – a pure – a person who is interested in pure majoritarian democracy would say that no, the Electoral College does not make sense. Supporters of the Electoral College on the other hand assert that it is a – it’s an integral element in U.S. – the U.S. federal system in which people vote – they’re voting not only as citizens of the United States, but also as citizens of their states. And as you know, the states have a – are distinct political cultures and institutions of their own, and that’s one of the prime examples cited by supporters of the Electoral College. They also insist that the way the electoral votes are awarded by the take-all method, it discourages minor parties or third parties. Now, some people think that’s a terrible idea. They assume we should have more independent candidacies and other than the duopoly of the Republican and Democratic parties, but I won’t comment on that today.
As I said, I’ve covered this area for many, many years and I always assumed – in fact, I worked with people who had worked with Congress in the 1960s who – when Congress actually seriously considered establishing a direct popular election, and it fell short in Congress for various reasons. And I always used to say that prior to the year 2000, that if there were ever another what we call a misfire election, wrong winner election, that Congress would move to propose an amendment to the states, but they didn’t. And it’s – as I said, it’s – part of it is that it’s so hard – so difficult to amend the U.S. Constitution. Another part is that Congress has a limited amount of time and energy and to do an amendment to move to direct popular election takes a lot of heavy lifting and a lot of time in Congress. And another point is they don’t have a – the support of or it being championed by leadership in Congress.
Now, the reason, for instance, that the amendment that dealt with, for instance, when a president dies, the vice president succeeds him – we now have through the 25th Amendment the president – the vice president, now president, nominates a new vice president. That was – that amendment succeeded partially because of the stimulus of the events surrounding the death – the assassination and death of President John Kennedy, but also because the leadership in Congress on a reasonably bipartisan basis chose to promote it. So I – who knows this time. I mean, there was some outrage among certain elements in 2016, 2017, but I have been tracking it ever since as part of my requirement or my responsibility for tracking legislation, and there have been bills – amendments, proposed amendments introduced in the two congresses since then – 115th and 116th – but there’s been no action on them. They are introduced, they are assigned to a committee, and you don’t hear of them again. So —
QUESTION: That brings up one more point, professor, if you don’t mind. Wasn’t there some kind of a debate going on about the doing away with the Electoral College (inaudible)?
MR NEALE: Well, that’s – that’s what I’m referring to, yes.
QUESTION: Yeah, okay.
MR NEALE: Establishing in its stead direct popular election. And the proposals would be a nationwide poll, just as you have in most parts of the world where you have a presidential republic where the president is, as I say, is both chief of state and head of government. Some of the – some of these proposals require only a plurality vote of 40 percent or more, others require a majority vote of 50 percent or more, and similar to the French system where there might be a second round if no candidate receives as much as 50 percent.
MR NEALE: But these have never come to fruition. They have never – in the past 20 years, nothing has done – there’s been nothing more than the occasional hearing in the committees of jurisdiction over constitutional amendments.
QUESTION: All right, thank you.
MODERATOR: We have time for a few more questions. Our next one will be from Alex Raufoglu from Turan News Agency of Azerbaijan. Alex, please go ahead and unmute yourself to ask your question. Thank you.
QUESTION: Yes, Jean, thank you so very much. It’s great to see you. This is Alex from Azerbaijan’s Turan News Agency. Tom, thank you so much for a very impressive presentation. It’s very impressive to actually imagine how much Electoral College system is divorced from the popular will, if you may. But you made it clear that the election college – Electoral College always reflected the popular votes until it did not. But there’s a mountain of difference between 500 votes, which determined the election results in 2000, and 6 millions, which was the case in 2016. So my question is: How big can this number get so that it reflects both the popular vote and the Electoral College? I’m just trying to get my head around will you be surprised if there is – if there are 10 millions’ difference this year but still you have an Electoral College result that does not reflect the popular vote? Americans don’t elect presidents for literally six battleground states, right?
And separately, you might choose not to answer – to respond, but there was a Gallup poll in September showing 61 percent of Americans want to abolish the Electoral College and adopt the popular vote. If that’s the case, my question is: Why is this a color issue, a red or blue issue? Thank you so much.
MR NEALE: Thank you. Thank you for your questions. Let me answer the second one first. I’m well aware of the – that for – ever since the Gallup and other survey research organizations have been asking the question on support of direct popular election versus the Electoral College, the American people have always preferred direct popular election. Getting from there to an amendment proposed in Congress and approved in the states is, as they say in the far West, a fur piece. It’s a long trip. It’s a big – it’s heavy lifting, and as I mentioned earlier, I think that’s one of the big reasons why there has never been, at least in the past 40 years plus, a serious effort to establish direct popular election.
With respect to your first question, that’s a very interesting question, because in 2000 – year 2000 – clearly Vice President Gore won a – it was – I think it’s arguable that that was a tie. However, Vice President Gore did win nationwide about a million – excuse me – about 550,000 more votes than Governor George W. Bush. However, in Florida, as the counting went on and on, you see different figures. Bush may have won by 250 votes, he may have won by 500 votes, very slim margin. But the point here is or the reason why, for instance, Florida went for Bush and, for instance, why President Trump in the election in 2016 had more electoral votes than Secretary Clinton was this, as I say, the winner-take-all or first-past-the-post system in the states.
Now, the way it’s set up, if you win 50.001 percent of the popular votes in a big state like Florida, you win all 29 electors and therefore all 29 electoral votes. And that’s one of the sources of criticism is that it is alleged by opponents of the Electoral College or opponents of the winner-take-all system that it disenfranchises all that – all the people who did not vote for the candidate to whom the electors were awarded.
Now, the states could do something about it if they liked because of their broad authority under the Constitution, and there have been suggestions that the states award their electoral votes in proportion to the number of popular votes received in the state. So that being the case, let’s go back to Florida and say that 50.001 percent went to candidate A and the other went to candidate B. Then the 29 electoral votes of Florida would be – under a proportional system would likely be distributed so that 15 of those votes would go to candidate A and 14 to candidate B. And the states could do that, but they haven’t chosen to. And one of the reasons they haven’t is that the political parties really have always – since the earliest days of the republic have supported the winner-take-all system because it tends to maximize their chances of winning the presidency.
Again, it’s – that is something that could be done in the states. The district system which I explained briefly has been done in Maine and Nebraska, and that does provide for the allocation of electors and electoral votes on the basis of the local congressional districts and the statewide. But yeah, it’s – the first past the post is the primary reason why we see some of these remarkably different results between the national popular vote or even the popular vote in the state and the electoral vote.
MODERATOR: Thank you.
QUESTION: Thank you.
MODERATOR: Thank you. We have time for one last question, and that will be from Sandra Muller from France. Sandra, please go ahead. Unmute yourself and ask your question. Can you unmute yourself, Sandra?
QUESTION: Unmute, okay. Is that okay?
MODERATOR: There you go. Yeah, you’re good.
QUESTION: Thank you. Sorry. Hello, sorry, it’s better a lot like this. So sorry, I need to read some notes. As you mentioned, it’s not a normal year. Everything’s difficult, especially for us, and when do you think we will be able to comment the election, like, correctly? It’s a kind of fear that I have.
The second question is: What is the worst case, the worst scenario for you? What can be legal obstruction? And let me read you something that I found. I found this and I need a – I need you to react and to help. I found that there can be a failure to deliver – sorry for my accent – it can be a failure to deliver certificates by December 23rd. I read you the text: If the certificates from any state have not been delivered by December 23rd – 22 – the president of the Senate or, in their absence, the archivist is required to request secretary of state or the equivalent official in that state to send one of the copies they hold to the president of the Senate by registered mail. The code also directs them to send a messenger to the judge to – of the U.S. district court in the state directing the judge to transmit the certificate they hold by hand to the seat of the government. I don’t understand anything.
And as you mentioned, the date of December 14, I just find out this one. So sorry, it’s three question, but you can make it short. It will be okay. But thank you so much.
MR NEALE: Right. First question I think was a general question on whether – if I interpret it correctly, my feelings on the – a change, a move towards a direct popular election system. I don’t know. Again, it seemed to me that the stars were all in alignment, as they say, in the year 2000 and again the year 2016 because of the Electoral College misfire, but no action was taken by Congress. It just – it requires a greater degree of interest in Congress and the public and leadership in Congress to push through a constitutional amendment. And remember, we’ve only had 27 amendments in 231 years of government under the Constitution.
Your second question on – if you could just pop that by again.
QUESTION: Yeah, of course. What is for you the worst scenario, the worst case? What can happen if the election is – is not accepted or if they count the ballot –
MR NEALE: Right.
QUESTION: Or – what is worst case?
MR NEALE: The worst-case scenario – and I’m speaking only as a private elections analyst; I’m not reflecting any official views – is that the counting of the electoral votes of – excuse me, of the popular votes in the states would be contested so – with such hostility and bitterness that it would be very difficult to arrive at the December 14th date for the meeting of electors. For instance, you might have two sets of returns from the two different parties in each state, and that would require possibly intervention by Congress in the January 6th electoral count session. The worst possible case scenario is that if – not worst possible, but the most – life would go on, the Republic would go on, but if the – if no candidate wins the majority of electoral votes, then the election goes – the president is accomplished in the House of Representatives and the election of the vice president in the Senate, as you know. We call that contingent election.
But let us for the purposes of arriving at your argument – the worst-case scenario is that if it’s unable – impossible to get a majority for a president in the House of Representatives or vice president in the Senate, there is no one elected by January 20th. You cannot adjust the date, the January 20th date, except by law, by act of Congress. So what would happen then is one of the amendments to the Constitution, the 20th Amendment, would provide that the next in line of succession after the Vice President would become acting president, and at that point the current next in line of succession – it’s always the speaker of the House.
So in that case, Speaker Pelosi, Speaker Nancy Pelosi would become acting president until the deadlock in Congress was resolved. But there’s kind of a poison pill here is that the law requires that if she became acting president, she would have to resign both as Speaker of the House of Representatives and as a member of the House of Representatives, both her jobs. So that would be effectively – if she wanted to be acting president for a day, week, a month, two months, she would have to end – it would mean the end of her political career, her public service career. So that’s another question. So that’s a pretty dreadful scenario.
QUESTION: Thank you.
MR NEALE: We hope it doesn’t happen.
QUESTION: Yeah, we hope too, because it’s so complicated for us. It’s (inaudible) for us too because we want to make our job correctly, and everything is, like, disturbing now.
MODERATOR: Well, thank you so much to Mr. Neale for taking the time to brief us today on such an important topic in what is undoubtedly a very busy season for you. Thank you for your time.
MR NEALE: You’re welcome. I was very pleased to join you all this morning and think we had a lot of good questions, and I thank all the questioners for their patience in listening to me and the high quality of their questions.
MODERATOR: Yes, lots of great questions today. I want to also thank our journalists for participating, and again, we will email you the transcript as soon as it becomes available. And that concludes the briefing for today. Thank you all again.
MR NEALE: Thanks again.