A version of this article appeared in the Riverside Lawyer Magazine, Volume 66, No. 8, Sept. 2016.
It is an election year again and as always the phrase “Electoral College” has taken over the airwaves and the headlines. Every four years, we hear about the Electoral College and how their votes can change the popular vote, but really, who is in the Electoral College and what do they do?
A Little Bit of History
In 1787, the Constitutional Convention considered several different methods for electing the President. These methods included a selection by the Congress, a selection by the state governors, or by a direct popular election. Eventually, the matter was given to a committee which created the Electoral College system. The original plan was met with widespread approval among the delegates and was adopted with minor changes.
The plan’s popularity was mainly due to the following factors: it reconciled differing state and federal interests, provided a degree of popular participation in the election, it provided the less populous states with additional leverage, it preserved the independency of presidency from the Congress, and mainly it insulate the election from political manipulation. The Electoral College system, as laid out in the Constitution, only included the system’s basic element. This has allowed the system to be developed over the years and grow as the nation grew. 
What Is the Electoral College?
The United States Electoral College is an institution that elects the President and the Vice President every four years. The voters elect representatives called “electors” who pledge to vote for specific President and Vice President candidate. The number of electors allocated to each of the 50 states is equal to the number of the state’s members of the Congress (the House of Representatives and the Senate). The 23rd amendment carves out the number of electors for the District of Columbia which is equal to the least populous state, currently at 3 electors. As a result, currently there are 538 electors, 435 Representatives and 100 Senators plus the 3 electors from the District of Columbia.
Who Can become an Elector?
The Constitution has left the selection process of the electors to the state legislatures, but it does set out one main disqualifier in the 14th amendment. Any person holding federal office, whether elected or appointed, is disqualified from being an elector. Other than this, the qualifications to be selected as an elector are very broad. The nomination process begins months prior to the election day and it varies from state to state. The electors are usually nominated by political parties at their state conventions or named by the campaign committee of each Presidential candidate. They usually include state-elected officials, party leaders, and those with strong affiliation with the Presidential candidates.
How Does It Work?
All of the states and the District of Columbia, except for Maine and Nebraska, have adopted a “winner take all” approach, which requires the electors to vote for the candidate who has won the statewide popular vote on the election day. Maine and Nebraska use the congressional district method, which means the winner of the popular vote wins 2 electoral vote and the remaining electoral votes are allocated based on the congressional district. This system allows for both Presidential candidates to receive electoral votes from Maine and Nebraska, unlike the other 48 states.
On Monday after the second Wednesday in December, the electors meet in their respective states and cast their ballots. Electors cast a separate ballot for each the President and the Vice President.  Once all the ballots are cast, the Electoral College ceases to exist until the next election year, four years later.
A majority of electoral votes (270 votes) is necessary to elect the President and the Vice President. If the majority is not reached, the 12th amendment lays out the next steps in the election process. The first step would take place in the House of Representatives where each state delegation casts one vote for a Presidential candidate. If the majority is again not reached, the process moves to the Senate where each senator casts one vote for a Vice Presidential Candidate. In case of a deadlock in the Senate, the current Vice President will cast the tie breaker vote. There have been a few occasions, most recently in 2000, where the use of Electoral College system has resulted in election of a candidate who did not receive the popular vote on the election day.
Why Continue or Discontinue the Use of the Electoral College?
There have always been pro and con arguments surrounding the Electoral College. The main arguments by proponents of the Electoral College system is that it creates certainty in results, precludes possibility of a nation-wide recount, allows stats to remain as an integral part of the Presidential election, and allows for small states to have a voice in the Presidential election. On the other hand, the opponents of the Electoral College system argue that it can distort the popular choice, discourages third parties, discourage voter participations as voters will feel their votes don’t matter, and it puts too much power in the hands of swing states.
Disclaimer: This post is meant for general informational purposes only, and it is not to be construed as legal advice. As with any laws, the information in this blog post may change at any time and may apply differently in different jurisdictions. The post may constitute Attorney Advertising as defined by the rules of professional responsibility of some jurisdictions. Holborn Law is based in Orange County and Riverside. The attorneys of Holborn Law APC are active members of the State Bar of California and licensed to practice law in California. All services relating to immigration and naturalization provided by Holborn Law APC are provided by active members of the State Bar of California or by a person under the supervision of an active member of the State Bar of California.
 "Debates in the Federal Convention of 1787: September 6". Avalon Project. Retrieved August 3, 2016.
 Neale, Thomas H. The Electoral College: How It Works in Contemporary Presidential Election, Congressional Research Service (September 28, 2004).
 U.S. Const. art. II, § 1, cl. 2.
 U.S. Const. amend. XXIII.
 U.S. Const. art. II, § 1, cl. 2.
 U.S. Const. amend. XIV, § 3.
 Morris, Irwin L., The American Presidency: An Analytical Approach. Cambridge University Press (2010).
 3 U.S.C. § 7 (2016)
 U.S. Const. amend. XII.
 "Electoral College Fast Facts - US House of Representatives: History, Art & Archives". Retrieved August 3, 2016
 Kimberling, William C., "The Electoral College". Federal Election Commission (May 1992).
 Edwards III, George C., “Why the Electoral College is Bad for America (Second ed.),” New Haven and London: Yale University Press (2011).