The President is Elected By the Electoral College, Not by Popular Vote fact

The Electoral College and the Popular Vote – How is the President Elected?

In the U.S., the President and Vice President are elected by getting a majority of electoral college votes, they are not elected by popular vote. This means a President or Vice President can win a majority of individual votes on the national level, but still lose the state-based electoral vote, and thus lose the election.^{[1][2][3][4][5]}

Furthermore, although in America we use a “winner-take-all” system as custom for states (winner-take-all = where all state electors vote with the state-based popular votes per state rules and custom), neither the state-based nor national popular vote decides the President or Vice President officially according to Article 2 sec. 1 of the Constitution and the 12th Amendment, but in practice we follow state rules and electors almost always vote with the state-popular.

Still, the Constitution is clear for what it is worth, the electors vote for the President and Vice President based on their own judgement alone, and this is why we have a thing called “faithless electors“.

Regardless of whether we follow the Constitution or customs defined by states as has been tradition, or even if we follow a mix with “faithless electors” considered in the future, for today it is 270 votes to win a majority of 538 potential electoral votes.

Below we explain the basics of the electoral college and discuss a few historic cases where the candidate who won the popular vote lost the electoral vote. First, lets look at the results of the 2016 election, as 2016 is projected to be one such election.

TIP: This page is just about the Presidential and Vice Presidential election, people vote directly on many positions and state-ballot measures in America. Learn more about the voting process.

The Results for the 2016 Election

As of December 20th, 2016, the final results according to CNN are (the final count is subject to change).^[6]

• Electoral vote: Clinton 232 vs. Trump 306 (270 to win)
• Popular Vote: Clinton 65,788,583 votes vs. Trump
  62,955,363

As you can see, Clinton lost the election even though she won the national popular vote by almost 3 million votes. The Electoral College is meant to give extra weight to the less populous states. In America, the less populous states tend to be Republican. As you can imagine, after yet another win by electoral vote where they lost majority, the chances of them wanting to change the system are zero-to-none.

FACT: A win by “faithless elector” is very unlikely, but it is possible and Constitutional. For electors to swing the election they must deprive a candidate of 270 or award 270 to the candidate who lost the “winner-take-all” votes. If no one gets 270, the vote goes to the House.^[7]

How Does the Electoral College Work?

The electoral college works like this (the dates subject to change each year, below we use 2016 as an example):

• Each citizen has the opportunity to vote in their state on November 8th. This vote is an advisory vote since we live in a Republic, not a direct Democracy.
• To make the election official, on December 19th electors meet in their state and vote for President and Vice President directly on separate ballots. At this step, “faithless electors” can upset the popular vote by voting against the state majority in states that don’t ban this completely.
• Lastly, on January 6th, Congress meets to count the votes.
• Whoever gets a 270 vote majority out of the 538 electoral votes on January 6th, not November 8th, wins. If there is no 270 majority, the House of Representatives decides the next President.

Thus, winner-take-all customs aside, it is not about how many votes a politician gets in the general election, either at a national or state level, as much as it is about how the elector’s vote. This doesn’t mean your vote doesn’t count; it means that electors have a responsibility to safeguard our Republic by casting the final official vote. Due to the way the system works, nothing is official until the electors votes are counted on January 6th.

FACT: There are 538 electors and a 270 majority vote is needed to elect both the President and Vice President (who are voted for on separate ballots). Why 538? The number of electoral votes is tied to congressional representation. The House has 435 seats, while the Congress has 100, and D.C. makes up the other 3.

TIP: Here is a list of 2016 electors (this can change as per the rules).

FACT: Dates are subject to change each election, for example electors vote “On the first Monday after the second Wednesday in December” which in 2016 is December 19th. Likewise, the general election is statutorily set as “the Tuesday next after the first Monday in the month of November” where the earliest possible date is November 2, and the latest possible date is November 8 (as it was for the 2016 election). See a timeline of the 2016 election for 2016’s dates.

FACT: Historically five candidates have won the popular vote but lost the electoral vote, including Andrew Jackson, Grover Cleveland, Samuel J. Tilden, Al Gore, and Hillary Clinton.^[8]

FACT: See Constitution (see Article. II. Section. 1.) and Presidential Election Laws for voting-related amendments. The Constitution sets up a system of electors who elect the President directly, but it doesn’t mandate that they follow the popular vote in their state. There is no Constitutional provision or Federal law that requires electors to vote according to the results of their state’s popular vote. The winner-takes-all system, in which all electors vote with the popular vote in their state, is a custom defined by state-based rules; it is not written in the Constitution. 99% of the time electors have voted as pledged, but 1% of the time they haven’t. No election has been changed by these “faithless electors” yet, but it would be in-line with the Constitution and the intentions of the founders to pull an upset. Constitution aside, as of 2016, 29 states have electors who can change their votes with no punishment or a small fee under state-based rules.

FACT: 21 states do not have laws that compel their electors to vote for a pledged candidate. 8 allow it, but fine the elector. That is where the total number of 29 originates.

TIP: The electoral system is set up mostly by the Constitution. The remainder of the regulatory system is decided by state-based rules and custom. See the parts of the Constitution that apply to voting.^[9]

TIP: We discuss voting in much more detail on our “does my vote count” page. Total electoral votes have changed over time, and the primaries have their state-specific processes for example.

TIP: There are multiple movements underway to change the electoral college (including a petition on MoveOn.Org to abolish it) or to lobby the electors to change their votes before December 19th (including a petition on Change.Org). Learn how to change the electoral college, and why we should or should not.

How is 2016 Like Past Elections?

In the 2016 election, Hillary Clinton is projected to have won the popular vote by getting more votes in total; and Donald Trump is projected to have won the electoral vote by getting more state-based electors. This resulted in Donald Trump winning the Nov. 8th election, although, nothing is official yet.

1. This is what happened in the famed 2000 George W. Bush Vs. Al Gore election where Gore won the popular vote but lost the electoral (via “the Florida recount”).^[10]
2. This is also what happened in 1824 with John Quincy Adams vs. Andrew Jackson. Jackson won the popular vote, but the vote went to the House where Adams won in a “corrupt bargain” with Henry Clay. Adams was then beaten by Jackson four years later 1828.
3. This happened in 1876 as well, when Rutherford B. Hayes won by one electoral vote but lost the popular vote to Samuel J. Tilden. This election’s corrupt bargain ended Reconstruction.
4. This happened for the first time in 1888 when Benjamin Harrison won by a large majority of electoral votes but lost the popular vote to Grover Cleveland.

1. Presidents Winning Without Popular Vote
2. 2016 Presidential Election Map
3. Trump’s victory another example of how Electoral College wins are bigger than popular vote ones
4. Does my vote count? Understanding the electoral college
5. Electoral Vote vs. Popular Vote
6. CNN
7. The Electoral College and the Popular Vote
8. Presidents Winning Without Popular Vote
9. Presidential Election Laws
10. Would Al Gore Have Won in 2000 Without the Electoral College?