Understanding America’s “Close” Election

US presidential elections always produce a steady stream of news, but the 2024 election is capturing even more attention than usual around the world. While this is in part because of former President Donald Trump’s multiple legal problems and the Democratic Party’s switch of nominees from President Joe Biden to Vice President Kamala Harris late in the election season,  it is also because the race is expected to be very close.

But what does it mean for an American election to be “close”? Unfortunately, the answer to this seemingly straightforward question – which involves concepts like “electors” and “swing States” – is not as simple as one would hope. Thus, with the November 5th election date now upon us, it is worth taking a moment to examine the somewhat odd way in which Americans elect their Chief Executive.

Eligibility

The US Constitution says that there are two basic criteria for becoming President: a person must be over 35 years of age and must be a ‘natural born citizen’ of the US.

The few additional limitations on eligibility only apply to persons who have already held the office. First, one cannot be President again if s/he has already served two terms as President. That means, if Mr. Trump would be elected in November, he would only be able to serve one more 4-year term.

Second, no one who has been impeached and convicted in that impeachment can be President. While Mr. Trump had been impeached twice, he was never convicted.

There is also a prohibition against anyone who has ‘engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof’ after having  taken an oath – as a member of Congress, or as an ‘officer of the United States’. The Supreme Court recently said that Congress would need to create legislation to effectuate this limitation, however, so it does not apply to Mr. Trump for now.

Getting on the Ballot

While the Constitution provides relative clarity about who is eligible to be President, gaining access to the ballot is slightly more complicated. This complexity is primarily due to the fact that each of the 50 States have their own special rules for gaining access. Generally speaking, nominees of political parties are provided a place on the ballot. This is how Kamala Harris (the Democratic Party’s nominee), Donald Trump (the Republican Party’s nominee) and a variety of nominees from lesser-known parties will appear. Those candidates who are otherwise unaffiliated with a political party can typically be written in or may petition a State to appear on its ballot. This process must be completed in each State for which the individual wishes to appear on the ballot. As Robert F. Kennedy Jr. recently discovered, this is difficult to do.

The Electoral College

The men who wrote the US Constitution feared not only monarchy but also the “tyranny of the people”. For protection against the vox populi, they created a system known as the “Electoral College”, which allows only specially designated individuals to cast votes for President and Vice President. In particular, these ‘electors’ are persons nominated by each State’s legislature. The number of electors (or ‘electoral votes’) that a State has is equal to its representation in Congress (i.e., the number of representatives that serve in the House of Representatives, which is determined by population, plus the two Senators that each State has). In the first presidential election, there were 69 electoral votes cast, all for George Washington. Today, the total number of electoral votes that the States plus Washington DC have is 538. The winning candidate is the person who gets the majority of electoral votes (i.e., 270 or more).

While an elector had real agency in choosing how to cast his/her ballot in the early years of the Republic, today the independence of the electoral college members is considerably more constrained. Most  States now have a system that requires all of the State’s electors to give their votes to the candidate with the highest number of votes in that State. However, two states – Nebraska  and Maine – allow for a more proportional allocation of their electors.

Because the election is decided by counting only the votes of the State electors, it is possible that the person who wins the majority of the vote nationally will lose the election. This has happened twice since 2000. Specifically, Al Gore and Hilary Clinton both garnered the largest share of the popular vote, but nevertheless lost the Presidential contest to George W. Bush and Donald Trump, respectively.

How Does the Electoral College Impact Campaigns?

Although States with large populations, like California, with its 54 electoral votes, Texas, with its 40 electoral votes, or New York, with 28 electoral votes, are important to the outcome of elections, it is competitiveness, rather than population, that dictates whether a candidate will spend time and resources campaigning there.

As is well documented, the US electorate is extremely – and relatively equally – divided. The divisions have so ossified that one can gain a relatively strong sense of a candidate’s chances in a given State simply by looking at the demographics of the electorate there. A more racially diverse, highly educated, urban-centric State is more likely to elect Democrats; while a less educated, ethnically homogenous, rural State is likely to vote for Republicans. As a result, only a handful of States are currently competitive, or “swing States”. The Cook Political Report finds that 215 electoral votes are either ‘solid’ (181) or ‘likely’ (34) Democratic and a similar number (219) are either solidly (148) or likely (71) Republican. This explains why both the Harris and Trump campaigns are so focused on winning in the Swing States of  Pennsylvania, Michigan, Wisconsin, Nevada, Georgia, New Hampshire and Arizona, even though most of these States offer only a  small number of electoral votes to the winner. In a race as close as the 2024 election appears to be, a win in a relatively small State could prove to be decisive.

What Happens after Election Day?

After the votes are counted, each State has a process for certifying its presidential election. First, the electors meet in their respective States in mid-December to vote for the President and Vice President, where the electors sign, seal and certify their votes. They then send those votes to the Vice President of the United States, acting as President of the Senate, to have them officially counted. Contrary to Mr. Trump’s claim during the 2020 election, the Vice President’s role is largely ceremonial; consisting of simply tallying the received votes. Once the votes have been counted, the only thing left for the President-Elect and Vice-President Elect is to be sworn in on January 20th of the year following the November election.

What if No Candidate Reaches 270 electoral votes?

In the unlikely event that no candidate receives 270 electoral votes, the US House of Representatives would select the next president. The procedure requires the 435 Representatives of the House to vote as State delegations, with each State casting 1 vote. 26 delegations (there are 50 States) voting in favor of a candidate would produce a winner. The Senate would be charged with electing the Vice President, with each of the 100 Senators casting one vote. The person receiving 51 votes becomes Vice President.

The Race to 270

After months of campaigning and tens of millions of dollars spent, it all comes down to America’s least exported constitutional element, the electoral college. The States will now reveal just how  “close” this race truly is.

Sean Stacy