The Electoral College in Wisconsin – An excerpt from the February 2008 Informational Bulletin 08-2, LRB−08−IB−2

There are signs that the way the electoral college is used to select the U.S. president will change in advance of the 2016 election. I’ve duplicated some information from Wisconsin’s Legislative Reference Bureau (LRB) here for convenience sake. The original document in full is found at this link at the LRB. If a mirror copy is needed, it is hosted here at the blue cheddar blog.

From pages 8-13 of Wisconsin’s LRB−08−IB−2 “Wisconsin’s Role in Electing the President”
State of Wisconsin
Legislative Reference Bureau
Informational Bulletin 08−2, February 2008

THE ROLE OF THE ELECTORAL COLLEGE
A great deal of light was shed on the formerly obscure Electoral College by the controversial presidential election of 2000. The closeness of the 2004 election underscores the importance of the Electoral College and the laws and customs that govern it. The framers of the Constitution had difficulty deciding how to select the president, and finally agreed upon the system of presidential electors as a compromise to offset fears about leaving such a critical decision to Congress or the voters at-large. As a result, the President of the United States is not elected directly by the people. At the November election, voters are actually voting for presidential electors who will cast their state’s ballots for president and vice president.

2008 ALLOCATION OF PRESIDENTIAL ELECTORS

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There are a total of 538 electors nationwide, collectively called the “Electoral College.” Each state has as many electors as its combined number of senators and representatives to Congress, so the state allocations range from 55 in California to a minimum of three in those states sending only one member to the U.S. House of Representatives. (The District of Columbia has three electors, based on the Twenty-Third Amendment to the Constitution, ratified in 1961.) Wisconsin has 10 electors, because its Congressional delegation includes two senators and eight representatives.

The U.S. Constitution, federal law, and state statutes govern the operation of the Electoral College. Curiously, although the U.S. Constitution created this electoral method, the popular term “electoral college” does not appear anywhere in the Constitution or any of its amendments. Nor is it used in any of the federal statutes passed in later years to define the process. Nevertheless, it has become the commonly used term to describe the electors collectively.

Article II, section 1 of the U.S. Constitution provides:
Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the Congress; but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

Initially, each presidential elector voted for two individuals; the person receiving the most votes (if receiving votes from the majority of electors) was elected president and the person receiving the second most votes was elected vice president. The development of political parties resulted in one party’s designated candidates for president and vice president, Thomas Jefferson and Aaron Burr, receiving the same number of votes. The disputed election, which was decided by the House of Representatives, was the impetus for the Twelfth Amendment to the Constitution. Ratified in 1804, this amendment instituted the current practice of having electors cast separate ballots for president and vice president.

The Selection of Presidential Electors.
Wisconsin law stipulates various requirements for the selection of the state’s presidential electors. Under Section 8.18, Wisconsin Statutes, each party’s state officers, holdover state senators, and the party’s candidates nominated in the September primary for state and legislative offices, meet in the state capitol on the first Tuesday in October of a presidential election year (October 7, 2008), to nominate the party’s slate of presidential electors. Each party’s slate consists of one elector nominated from each of the state’s eight congressional districts and two electors at-large. Once the nominees are determined by vote, the chairperson of the party’s state committee immediately certifies their names to the chairperson of the Government Accountability Board.

In addition to the participation of recognized political parties in the presidential elector process, Wisconsin also provides for the selection of electors in November on behalf of minor parties and independent candidates. According to Section 8.20, Wisconsin Statutes, minor party or independent candidates for president and vice president must submit their nomination papers by 5 p.m. on the first Tuesday in September (September 2, 2008). The nomination papers must contain no fewer than 2,000 and no more than 4,000 signatures collected since August 1 and must list one candidate for elector from each congressional district and two from the state at-large. Section 8.185, Wisconsin Statutes, allows voters to write in the names of candidates for president and vice president in the November election. However, write-in votes are reported as merely “scattering” in each election reporting unit unless the candidate receiving the votes has filed a list of presidential electors with the Government Accountability Board

pg. 9

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at least 14 days before the election or the candidate receives more than 10% of the total vote
cast in that reporting unit. Section 5.10, Wisconsin Statutes, provides that although the names of electors do not appear on the ballot, a vote for a presidential candidate constitutes a vote for the whole slate of electors of that candidate’s party. The effect of this is a winner-take-all system whereby the candidate receiving a plurality of votes statewide wins all of Wisconsin’s electoral votes. Our common election day − the day following the first Monday in November (November 4, 2008) − is set forth in federal law and has been the day on which states must select their presidential electors since the 1840s.

Once the Government Accountability Board has certified the statewide results of the November presidential balloting, the board prepares copies of certificates stating the results of the election and the names of the qualified electors. The governor signs them, affixes the Great Seal of the state, and mails one to the general services administration in Washington, D.C., and delivers six copies to one of the electors prior to the scheduled meeting date of the Electoral College.

Voting by the Electors.
On the first Monday after the second Wednesday in December of each presidential year (December 15, 2008), the presidential electors chosen when their candidate won the most popular votes in November meet in the state capitol in Madison at noon to cast their ballots for president and vice president. This meeting represents Wisconsin’s portion of the Electoral College. To be elected president, a candidate must receive a majority (at least 270) of the possible national total of electoral votes for that office. The vice president is chosen on a separate ballot and must also receive at least 270 votes. Theoretically, the president and vice president could be elected from different parties; but party loyalty on the part of the electors makes that outcome unlikely.

Section 7.75, Wisconsin Statutes, states that electors must cast a ballot for the presidential and vice presidential candidates they were chosen to elect. However, since there is no statutory penalty for being a “faithless elector” by voting for someone else, the only real constraints are custom, tradition, and loyalty to the candidate and the party. This feature in the electoral voting varies from state to state. Although 29 states, including Wisconsin, bind their electors to vote as pledged, only five have actual penalties for violations. Despite this, it appears that nationally, since the first Electoral College vote in 1789, only 11 electors have
violated their pledges.

The electors who convene at the state capitol on the appointed day are qualified to fill any vacancies in the electoral slate caused by death, refusal to act, or refusal to attend, by plurality vote. At least one of the votes cast by each elector for president and vice president must be for someone not from Wisconsin, as required by the Twelfth Amendment to the U.S.
Constitution. (In 2000, some questioned the validity of Texas’ 32 electoral votes since the Republican candidate for vice president, Dick Cheney, was said to be residing in Texas, the
same state as the GOP presidential candidate, George W. Bush. It was generally accepted that
Cheney had changed his residency to Wyoming prior to the election, and the 32 votes were counted without challenge.)

What If the Popular Vote and the Electoral Vote Are at Variance?

The present method of electoral voting, as set by law in all but two states (Maine and Nebraska), allows the presidential candidate who wins a plurality (the highest number but not necessarily a majority) of each state’s popular vote in November to receive all the state’s electoral votes. This is often called a “winner-take-all” system. Only Maine and Nebraska provide that each elector who
pg. 10

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pg. 11
represents a congressional district must vote according to the district’s plurality, rather than
following the statewide vote. A bill currently before the Wisconsin Legislature, 2007 Assembly Bill 589, would adopt this scheme for Wisconsin. Because the margin of victory within each state (and in Maine and Nebraska, the margin of victory within each congressional district) is irrelevant, some popular votes count more than others and a candidate can win the presidency
without receiving a plurality of the national popular vote, as occurred in 2000 when George W. Bush received fewer popular votes than Al Gore, but still received a majority of the electoral votes by winning the right combination of states. On three other occasions in U.S. history, the president won the White House through the electoral vote but had fewer popular votes nationwide than his opponent: John Quincy Adams (1824), Rutherford Hayes (1876), and Benjamin Harrison (1888).

What Happens If There Is a Dispute Over a State’s Electoral Votes?
In view of the fact that a recent presidential election was decided by only a few electoral votes, and that the electoral votes of one state were seriously contested, it may be useful to review some of the laws dealing with this situation.

Some federal laws pertain to situations in which there is some doubt as to who has won a state’s electoral votes. 3 U.S. Code § 2 indicates that if any state has “failed to make a choice [of electors] on the day prescribed by law,” the state legislature may provide for the appointment of electors at a later date. 3 U.S. Code § 5 specifically gives state legislatures the power
to create provisions for settling controversies or contests relating to the appointment of any or all presidential electors, if it acts at least six days before the meeting of the Electoral College in December.

Federal law also provides a role for Congress in resolving disputes involving the recognition and counting of states’ electoral votes. It requires that the electoral vote be counted by state in alphabetical order by the president of the senate before a joint session of Congress on January 6 following the presidential election. Any objection to a state’s electoral vote must be
presented in writing and signed by both a member of the Senate and the House of Representatives. If a valid objection is received, the two houses of Congress return to their own chambers and consider the objection. If both houses agree, they may reject the vote or votes named in the objection if it is determined that the votes have not been regularly given by certified electors. If two sets of votes are received from the same state, Congress must defer to the process indicated by the state legislature under 3 U.S. Code § 5. If the legislature of the state in question has not created a procedure to settle the controversy, the two houses of Congress, acting concurrently, may decide which votes to count. If the two houses of Congress disagree, they must count the votes delivered under the seal of the governor of the state. This procedure was put into action in January 2001, when several members of the House of Representatives objected to Florida’s electoral votes. Since no member of the Senate would sign the objections, they were never acted upon, and the slate of electors voting for George W. Bush and Dick Cheney was accepted.

What If the Electors Are Deadlocked?

A strong bid by a third party candidate could result in the failure of any candidate to win the required majority of 270 or more electoral votes.
If the front-runner is denied a majority of the electoral votes, the election of the president must be conducted in the House of Representatives. The House makes its selection from the three candidates with the most electoral votes by voting on a state-by-state basis. The Twelfth Amendment to the U.S. Constitution provides:
pg. 11

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pg. 12

[T]he votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states [34], and a majority of all the states [26] shall be necessary to a choice. The House of Representatives has been involved in electing a president on only two
occasions, following the general elections of 1800 (Thomas Jefferson) and 1824 (John Quincy Adams). The Twelfth Amendment provides that if no candidate receives a majority of the vice presidential electoral vote, the vice president will be chosen by the Senate from the two candidates receiving the most votes. The senators vote individually, rather than by state. A quorum
for this purpose is two-thirds of the senators (67), and a majority (51) is necessary to make a choice. The only occasion when the Senate was called upon to elect a vice president occurred in 1837 when Richard Johnson, because of a personal scandal, did not receive a majority of the electoral votes. The Senate did, however, elect Johnson to the office.

V. PROPOSALS TO ABOLISH THE ELECTORAL COLLEGE
Should the Electoral College Be Continued?

The Electoral College has had its supporters and opponents over the years, but opinions are strongest when close bipartisan elections or strong third party candidates threaten to overturn the results of the November popular election. The major criticisms opponents level against the Electoral College include:
1) it is possible for a candidate with a majority of the popular vote to lose the election;
2) a voting deadlock in the Electoral College could throw the presidential selection process into the House of Representatives, where deal-making could influence the outcome;
3) only one-half of the
states require electors to vote for the candidate who won the state’s popular vote, while the electors from the other states are theoretically able to vote for whomever they please; and
4)
the Electoral College gives disproportionate weight to the votes of voters in states (like Wisconsin) that are often closely contested. Supporters of the Electoral College point out that the present system has been used for
many years and has served the country fairly well. Abolishing the Electoral College and replacing it with a direct election of the president, they claim, would encourage the rise of multiple political parties, which would be detrimental to the two-party system. Another fear is that abolishing the Electoral College would tend to reduce the importance of the states in the
federal system. Under a direct election system, states with large populations could become overly important at the expense of the less populated states. Proponents also claim that the “winner-take-all” mechanism can have a positive effect because it magnifies the winner’s margin and thereby creates a sense of national support for the newly elected president, rather than exposing divisions in the national electorate.

Alternatives to the Current Electoral College.

The proposals to alter the manner of
electing the president fall into four principal categories:
1) Direct popular election would abolish the Electoral College and replace it with a direct, nationwide popular vote for president and vice president. Most of the direct popular election proposals require that a winning candidate must receive at least 40% of the votes cast.
2) The district system, which is similar to the current systems in Maine and Nebraska, would retain the Electoral College, but abolish the “winner-take-all” tabulation of electoral votes within a state. This system would provide for the election of one elector from each of
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the nation’s 435 congressional districts with two electors chosen at-large in each of the 50 states. The District of Columbia would continue to select three electors.
3) The proportional system would keep each state’s electoral vote, but divide the votes in direct proportion to the popular vote in the state.
4) The automatic plan would keep the electoral system but abolish the individual electors by requiring that the electoral vote of each state be cast automatically for the winner of a plurality in that state.

Direct popular election or the abolition of the individual electors called for in the automatic plan would require abolishing the Electoral College and would necessitate amendment of the U.S. Constitution. The other two proposed changes in the Electoral College could be accomplished through amending legislation passed by the Congress.

A fifth alternative, known as the National Popular Vote, or NPV, has recently emerged. NPV takes the novel approach of circumventing the Electoral College by means of an interstate compact. NPV provides that every state adopting the compact would require its electoral votes to be awarded to a slate of electors committed to the presidential and vice presidential ticket receiving the greatest popular vote nationwide, without regard to which ticket carried
the state. The compact would provide that its terms would not come into effect until states representing 270 electoral votes had passed laws adopting its provisions. This must occur by July 20, 2008, in order for the compact to apply to the 2008 election. Since every state adopting the compact would cast its electoral votes together, this would insure that the national popular vote winner would be elected president. Forty-four state legislatures are considering legislation to adopt the compact. In two states, Maryland and New Jersey, the NPV compact has been enacted into law. A proposal to apply the compact to Wisconsin, 2007 Assembly Bill 313, was introduced on May 8, 2007, and is in the Assembly Committee on Elections and Constitutional Law.
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