It remains one of the most surprising facts about voting in the United States: While the popular vote elects members of Congress, mayors, governors, state legislators and even more obscure local officials, it does not determine the winner of the presidency, the highest office in the land.
That important decision ultimately falls to the Electoral College. When Americans cast their ballots, they are actually voting for a slate of electors appointed by their state’s political parties who are pledged to support that party’s candidate. (They don’t always do so.)
This leads to an intense focus on key battleground states, as candidates look to boost their electoral advantage by targeting states that can help them reach the needed 270 votes of the total 538 total up for grabs. The Electoral College also inspires many what-if scenarios, some of them more likely than others.
Can a president lose the popular vote but win the Electoral College vote?
Yes, and that is what happened in 2016: Although Hillary Clinton won the national popular vote by almost 3 million votes, Donald Trump garnered almost 57% of the electoral votes, enough to win the presidency.
The same thing happened in 2000. Although Al Gore won the popular vote, George W. Bush earned more electoral votes after a contested Florida recount and a Supreme Court decision. It happened three times before that, with the elections of John Quincy Adams (1824), Rutherford B. Hayes (1876) and Benjamin Harrison (1888).
The electoral system has also awarded the presidency to candidates with a plurality of the popular vote (under 50%) in a number of cases, notably Abraham Lincoln in 1860, John F. Kennedy in 1960 and Bill Clinton in 1992 and 1996.
What happens in a tie?
Because there’s an even number of electoral votes, a tie is feasible. If that happens in the Electoral College, then the decision goes to the newly seated House of Representatives, with each state voting as a unit.
Although it’s not detailed in the Constitution, each state delegation would vote on which candidate to support as a group, with the plurality carrying the day, said Akhil Reed Amar, a professor of law and political science at Yale University. If there is a tie vote in a state’s delegation, the state’s vote would not count. A presidential candidate needs at least 26 votes to win.
Currently, Republicans control 26 state delegations, while Democrats control 22. Pennsylvania is tied between Republican and Democratic representatives, and Michigan has seven Democrats, six Republicans and one independent. That could all change Nov. 3 of course, because all House seats are up for election.
The decision on vice president goes to the newly elected Senate, with each senator casting a vote. Ultimately, any disputes about the procedure could land everything in the Supreme Court.
What if electors break their pledge?
People call them “faithless electors.” In 2016, seven electors — five Democrats and two Republicans — broke their promises to vote for their party’s nominee, the most ever in history. They voted for a variety of candidates not on the ballot: Bernie Sanders, Colin Powell and Ron Paul, among others. It did not change the outcome.
Whether electors should be able to change their positions has been heavily debated — so much so that the Supreme Court unanimously ruled in July that states may require electors to abide by their promise to support a specific candidate.
Some scholars have said they do not wholeheartedly agree with the decision, arguing that it endangers an elector’s freedom to make decisions they want and that electors are usually picked for their loyalty to a candidate or party.
“They will do as promised if the candidates do a very good job vetting them and picking people who are rock-solid,” Amar said.
Thirty-three states and the District of Columbia have laws that require electors to vote for their pledged candidate. Some states replace electors and cancel their votes if they break their pledge.
Certain penalties exist in other states. In New Mexico, electors can be charged with a felony if they abandon their pledge, and in Oklahoma a faithless elector could face a misdemeanor charge.
How did this system evolve?
The Electoral College was born at the 1787 Constitutional Convention in Philadelphia.
The nation’s founders hoped to quell the formation of powerful factions and political parties, and they wanted a mechanism that did not rely solely on popular majorities or Congress. Despite the name, it is not a college in the modern educational sense but refers to a collegium, or group of colleagues.
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