The Electoral College Survival Guide

Getty Images
Getty Images

As you will be reminded countless times in the coming week, when you cast your vote in next Tuesday's presidential election, you're not taking part in a nationwide popular vote, but rather helping decide who your state's Electoral College delegates support. There are all sorts of arguments for and against using this system rather than picking a winner based solely on the national popular vote, but for the moment, it looks like the Electoral College will be sticking around for a while. So what do you need to know about the least-fun college this side of the Catholic Church's College of Cardinals?

What are the Electoral College's admissions policies?

Different states choose their electors in different ways. Some states have nominations for electors during party conventions, while others choose their electors in primaries. In Pennsylvania, the campaigns choose their own electors. The only real things that can disqualify you from being an elector are holding a federal office or having engaged in some sort of insurrection against the U.S. government. Chosen electors are generally loyal party members who can be counted on to cast a ballot that's in line with their state's popular vote.

Where's the Electoral College's campus?

It doesn't have one. Although the name might make you think that all the electors meet in a centralized location to cast their ballots, the Electoral College never actually convenes as a unified group. Instead, the chosen electors all meet at their respective state capitals on the first Monday after the second Wednesday in December to cast their votes. The votes are then counted in a joint session of Congress on January 6th.

What if no one gets a majority of the Electoral College's votes?

If no candidate can grab a majority (currently 270) of the Electoral College's votes, the House of Representatives meets immediately to pick the new President. In this situation, each state's Congressmen get together and pick a candidate among the top three vote getters in the Electoral College balloting. Each state's delegation then casts one vote. This process keeps going on indefinitely until a single candidate receives a majority of the states' votes. The House of Representatives has picked two presidents: Thomas Jefferson in 1800 and John Quincy Adams in 1824.

Since electors also ballots for Vice President, the same situation can arise with that office. In these cases, the Senate immediately goes into session to pick a Vice President, although each Senator has his own vote. The Senate votes until a candidate receives a majority of the cast votes. This sort of contingent election has happened just once. In 1836 Martin Van Buren's running mate, Richard M. Johnson needed 148 votes to win the Vice Presidency, but Virginia's electors refused to vote for him. As a result, he ended up stuck with 147 votes, and the Senate had to hold a contingent election, where Johnson cruised by Whig candidate Francis P. Granger.

Can the electors change their mind?

They can, but they then become what are known as "faithless electors." Technically, states make their electors pledge to vote in a certain way, and 24 states have laws that punish electors who decide to get cute and switch things up. However, with a few exceptions like Michigan and Minnesota, votes cast by faithless electors still count in the final tally.

Yeah, but that never happens, does it?

Faithless electors have actually popped up fairly frequently in American electoral history. One notable instance of faithless electors rearing their head occurred in 1972. Roger MacBride, the treasurer of the Republican Party of Virginia, was a pledged elector for Richard Nixon and Spiro Agnew. Instead, he cast his ballot for the Libertarian ticket. While this vote put him firmly on the outs with the state G.O.P., he became something of a Libertarian folk hero. In fact, Libertarians were so enthused by his vote that he won the party's presidential nomination in the 1976 election.

Although most switcheroos don't benefit small-party candidates like this one did, they're not all that uncommon, and not a recent trend, either; Abraham Lincoln's winning total in the 1860 election included four electors who were pledged to Stephen Douglas. Although Ronald Reagan won sound victories in 1980 and 1984, he also received a single electoral vote in 1976. Mike Padden, a faithless elector from Spokane, cast his vote for Reagan instead of Gerald Ford, as he'd pledged.

It's winner-take-all for each state, right?

Yes, for most states, the winner of the popular vote gets all of the state's electors. However, Maine and Nebraska allocate their electors a little differently. Since each seat in Congress is roughly analogous to one vote in the Electoral College, these states let each congressional district pick its own candidate. The state's remaining two electoral votes, which correspond to the state's two Senators, go to whichever candidate wins the popular vote within the state. Technically, this system could result in a state's electoral votes being split between two candidates. In practice, though, all of the districts tend to vote the same way. Although Maine and Nebraska have been using this system since 1972 and 1992, respectively, neither state has ever split its presidential votes.

What happens if a president-elect dies?

The national election will take place next week, but the Electoral College won't formally meet to cast their votes until December 15. If a candidate dies or becomes otherwise unfit to take office in the interim, a thorny issue pops up. Some states, like Virginia, legally bind their electors to vote for the candidate whose name was on the general election ballot. Other states, though, are more flexible and would allow their electors to vote for the ticket's vice-presidential candidate or other agreed-upon candidate.

Luckily, this scenario has never happened with an election winner. In 1872, though, Democrat Horace Greeley died just over three weeks after Ulysses S. Grant thumped him in the election. Since the Electoral College still had to meet to elect Grant, electors who would have voted for Greeley simply spread their 66 votes among other Democratic candidates. As a result, Thomas Andrews Hendricks actually came in second in the election with 42 electoral votes despite not campaigning for the presidency; he was busy successfully running for Governor of Indiana. Three electors actually voted for Greeley even though he was dead, which probably tells you all you need to know about the health of the Democratic Party during Reconstruction.

If the President elect dies after the Electoral College's voting but before the inauguration, the Twentieth Amendment states that the Vice President elect becomes President.

Why Do Supreme Court Justices Serve for Life?

Alex Wong, Getty Images
Alex Wong, Getty Images

There are few political appointments quite as important as a nomination to the U.S. Supreme Court. Unlike a cabinet secretary or an ambassador, justices serve for life. In the modern era, that often means more than three decades on the court—thanks to increased lifespans, justices appointed in the next century are expected to sit on the Supreme Court for an average of 35 years, compared to the average of around 16 years that judges served in the past. Because of this shift, some scholars have begun to question whether lifetime appointments are still appropriate, as the definition of “for life” has changed so much since the constitution was written. But why do justices serve for life, anyway?

Well, for one thing, the U.S. Constitution doesn’t exactly specify that justices and the court are in a “’til death do us part” relationship. Article III says that judges (of both the Supreme Court and lower federal courts) “shall hold their offices during good behavior.” So technically, a judge could be removed if they no longer meet the “good behavior” part of the clause, but there are otherwise no limits on their term. In practice, this means they have their seat for life, unless they are impeached and removed by Congress. Only 15 federal judges in U.S. history have ever been impeached by Congress—all lower court judges—and only eight have been removed from office, though some have resigned before their inevitable removal.

The only Supreme Court justice Congress has tried to impeach was Samuel Chase, who was appointed by George Washington in 1796. Chase was an openly partisan Federalist vehemently opposed to Thomas Jefferson’s Democratic-Republican policies, and he wasn’t afraid to say so, either in his role as a lower court judge or once he was appointed to the Supreme Court. In 1804, the House of Representatives, at then-president Jefferson’s urging, voted to impeach Chase, accusing him, among other things, of promoting his political views from the bench instead of ruling as a non-partisan judge. However, he was acquitted of all counts in the Senate, and went on to serve as a Supreme Court justice until his death in 1811.

The point of giving justices a seat on the bench for the rest of their lives (or, more commonly nowadays, until they decide to retire) is to shield the nation’s highest court from the kind of partisan fighting the Chase impeachment exemplified. The Supreme Court acts as a check against the power of Congress and the president. The lifetime appointment is designed to ensure that the justices are insulated from political pressure and that the court can serve as a truly independent branch of government.

Justices can’t be fired if they make unpopular decisions, in theory allowing them to focus on the law rather than politics. Justices might be nominated because a president sees them as a political or ideological ally, but once they’re on the bench, they can’t be recalled, even if their ideology shifts. Some data, for instance, suggests that many justices actually drift leftward as they age, no doubt infuriating the conservative presidents that appointed them.

The lack of term limits “is the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws,” Alexander Hamilton wrote in the Federalist No. 78. The judiciary, he believed, “is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches,” and “nothing can contribute so much to its firmness and independence, as permanency in office.” Without lifetime job security, he argued, judges might feel obligated to bow to the wishes of the president, Congress, or the public, rather than confining their work strictly to questions of the Constitution.

While lifetime appointments may be a longstanding tradition in the U.S., this approach isn’t the norm in other countries. Most other democracies in the world have mandatory retirement ages if not hard-and-fast term limits for high court judges. UK Supreme Court justices face mandatory retirement at age 70 (or 75 if they were appointed before 1995), as do judges on Australia’s High Court. Canadian Supreme Court justices have a mandatory retirement age of 75, while the 31 justices of India’s Supreme Court must retire by the age of 65. Meanwhile, the oldest justice now on the U.S. Supreme Court, Ruth Bader Ginsburg, is currently 85 and kicking. Oliver Wendell Holmes Jr., the oldest justice in U.S. history, retired in 1932 at age 90.

Though the U.S. Supreme Court has never had term limits before, there have recently been serious proposals to implement them. Term limits, advocates argue, could combat partisan imbalances on the court. Presidents wouldn’t get to appoint justices purely based on whether someone died while they were in office, and the stakes for political parties nominating a justice would be slightly lower, possibly leading presidents and Congress to compromise more on appointments. One popular suggestion among political analysts and scholars is to impose an 18-year term limit, though critics note that that particular plan does bring up the potential that at some point, a single president could end up appointing the majority of the justices on the court.

In any case, considering such a change would likely require a constitutional amendment, which means it’s probably not going to happen anytime soon. For the foreseeable future, being on the Supreme Court will continue to be a lifetime commitment.

Have you got a Big Question you'd like us to answer? If so, let us know by emailing us at bigquestions@mentalfloss.com.

Dolly Parton, They Might Be Giants, and More Featured on New Album Inspired By the 27 Amendments

Valerie Macon, Getty Images
Valerie Macon, Getty Images

Since 2016, Radiolab's More Perfect podcast has taken what is typically viewed as a dry subject, the Supreme Court, and turned it into an engrossing podcast. Now, fans of the show have a whole new way to learn about the parts of U.S. history which textbooks tend to gloss over. 27, The Most Perfect Album, a new music compilation from Radiolab, features more than two dozen songs inspired by each of the 27 amendments to the U.S. Constitution, from freedom of religion to rules regulating changes to Congressional salaries.

More Perfect assembled an impressive roster of musical talents to compose and perform the tracklist. They Might Be Giants wrote the song for the Third Amendment, which prohibited the forced quartering of soldiers in people's homes. It goes, "But the presence of so many friendly strangers makes me nervous, and it does not mean that I'm not truly thankful for your service."

For the 19th Amendment, which gave women the right to vote, Dolly Parton sings, "We carried signs, we cursed the times, marched up and down the street. We had to fight for women's rights with blisters on our feet." Less sexy amendments, like the 12th Amendment, which revised presidential election procedures, and the 20th Amendment, which set commencement terms for congress and the president, are also featured. Torres, Caroline Shaw, Kash Doll, and Cherry Glazerr are just a handful of the other artists who contributed to the album.

The release of the compilation coincides with the premiere of More Perfect's third season, which will focus on the 27 amendments to the U.S. Constitution. You can check out the first episode of the new season today and download the companion album for free through WNYC.

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