Article II of the Constitution specifies that the president is elected by representatives to the Electoral College. The Electoral College is a group of people who are appointed from each of the states, through a process established by each state legislature. They assemble in January after the November presidential election and vote for the candidate who won the majority of votes in their state. Each state gets the number of electors equal to the number of its representatives and senators in Congress. The creation of the Electoral College gives more power to the smaller states, rather than letting the people in the most populous states always control who becomes president. In the event of a tie vote in the Electoral College, the House of Representatives chooses the president.
The Electoral College chooses a president and vice president from two different parties – John Adams, a Federalist, becomes president and Thomas Jefferson, a Democratic-Republican, is elected vice president. The two will clash several times during the term. Concerns that an administration made up of candidates with conflicting political philosophies will hamstring the government and the rise of the two-party system that makes such an event more likely lead Congress to reconsider how the president and vice president are selected.
In the presidential election of 1800, Thomas Jefferson and Aaron Burr, both Democratic-Republicans, win 73 votes in the Electoral College, forcing the House of Representatives to choose the president and vice president. The House eventually votes for Jefferson as president after a protracted deadlock. Ballots are cast 36 times by the House, and the vote is still tied. Then, one Federalist, Alexander Hamilton, changes his vote. Others follow, and Jefferson is elected president on the 37th ballot. This event triggers the demand for the 12th Amendment.
Before the passage of the 12th Amendment, the candidate who won the most electoral votes was elected president and the candidate who received the second-most electoral votes became vice president. With the rise of political parties, this begins to create problems. The process allowed for a president and vice president with very different political viewpoints. The 12th Amendment allows candidates for president and vice president to run on the same ticket, ensuring similar political views between the two leaders and allowing those in the executive office to work cooperatively.
Congress approves the 12th Amendment on Dec. 9 and sends it to the states for ratification.
Former Sen. William Plumer of New Hampshire casts his electoral vote for John Quincy Adams rather than James Monroe, to whom he was pledged. Accounts vary about Plumer’s motivation; he is reported to have said he thought that only George Washington “deserved a unanimous election” but biographers also report that he wanted to draw attention to his friend Adams as a potential president and to “protest against the wasteful extravagance of the Monroe Administration.”
This is the first election in which the winner of the popular vote does not become president. Andrew Jackson wins 41 percent of the popular vote, more than his opponents but less than a majority. He beat the next highest vote-getter, John Quincy Adams, by 38,149 votes. Four candidates receive electoral votes, though none receive enough to constitute a majority. Jackson receives 99 electoral votes; Adams receives 84 electoral votes; William H. Crawford receives 41 electoral votes; Henry Clay receives 37 electoral votes. As no one candidate earns the 131 electoral votes required for victory, the House of Representatives chooses the winner. Since the House is allowed to vote only on the top three contenders from the Electoral College, Henry Clay is removed from consideration. When Clay agrees to support Adams, the House picks Adams as president. Soon after, Clay is appointed secretary of state, and Jackson, who holds a clear majority of electoral votes and leads the popular vote, is denied the presidency.
Democrat Samuel Tilden wins the popular vote in the presidential election by a margin of less than 250,000 votes (out of 8.5 million votes cast) against Republican Rutherford B. Hayes. On the night of the election, both candidates, as well as most of the national media, assumes Tilden is the winner. Tilden’s 184 electoral votes are one short of the necessary majority while Hayes’s 165 electoral votes leave him 20 votes shy of winning the presidency. After 16 weeks of controversy, an ad hoc Electoral Commission established by both parties awards 20 contested electoral votes to Hayes, giving him a one-vote win over Tilden.
In another contested presidential election, incumbent Grover Cleveland, the first Democrat elected president since before the Civil War, wins the popular vote by 90,596 votes (out of 11,383,320 cast). But he loses the Electoral College vote to Republican Benjamin Harrison: 233 electoral votes to 168. This is the third time since the founding of the country that the candidate with a majority of the popular vote loses the election. Cleveland will come back to challenge and defeat Harrison in 1892.
In Ray v. Blair, the U.S. Supreme Court holds that a state cannot constitutionally require its electors to vote for the candidates to whom they are pledged. There have been at least four instances in which individual electors failed to vote for the candidate to whom they were pledged. One occurred in 1820, when an elector pledged to James Monroe voted for John Quincy Adams. His rationale was that his vote would have made the election of Monroe unanimous and that no president other than George Washington was deserving of unanimous support. The three other instances – 1956, 1960 and 1968 – were equally peculiar to the individual elector. None affected an election’s outcome.
The U.S. Supreme Court unanimously upholds state laws that remove or fine Electoral College delegates who refuse to cast their votes for the presidential candidate they were pledged to support. Justice Elena Kagan wrote that laws that remove or penalize delegates reflect “a longstanding tradition in which electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.” Although many Americans think that they elect the president and vice president, in fact, it is the Electoral College that formally decides who wins the election. Election experts worried that if Electoral College delegates were free to vote as they chose, the 2020 election would have turned into a free-for-all. The cases were Chiafalo v. Washington and Colorado Department of State v. Baca.