Don’t you love election night every fourth November? That quadrennial night is a political junkie’s dream. The awesome election music, the hyper analysts, the flood of data and rainbow of colors flashing on the screen. Crowds cheering in one room and somber shots of weepy supporters in another. It’s exciting when the country (sort of) elects a new president.
It’s easy to forget that the presidential election is never really settled on election night. They teach us about the electoral college from an early age—50 groups of electors, each equal to the size of that state’s congressional delegation (plus 3 for D.C.), cast ballots in December based on how the citizens of their respective states voted. Mitt Romney received the most votes in North Carolina, so he received all 15 of the electoral votes available there. Barack Obama won the most votes in California, so all 55 of the Golden State’s electors voted for him.
Except, not all of them have to do that. “Faithless electors” is a term that’s always sort of a side note when we learn about the electoral college. Every once and a while, one or two electors around the country will cast their vote for a candidate they weren’t expected to vote for. Faithless electors haven’t caused a serious issue in modern political history, so we never really think about them except during a trivia contest.
The reality is that every single presidential election is up for grabs well after the ballot boxes are cracked open in November. The presidential election isn’t settled until the electoral college votes in the middle of December—it’s all thanks to 236 electors who aren’t legally bound to vote for the candidate who won the most votes in their state.
Call them “super-electors,” if you will.
There are 21 states that do not have laws that bind their electors to vote for the winner of the popular vote in their respective states:
- Arizona
- Arkansas
- Georgia
- Idaho
- Illinois
- Indiana
- Iowa
- Kansas
- Kentucky
- Louisiana
- Minnesota
- Missouri
- New Hampshire
- New Jersey
- New York
- North Dakota
- Pennsylvania
- Rhode Island
- South Dakota
- Texas
- West Virginia
These 21 states account for 236 electoral votes, or 43.8% of the entire electoral college. That’s not enough for someone to make a play for faithless electors and snag the election, sure, but it’s more than enough votes to make things just a little uncertain until those electors cast their ballots in December.
The 29 states that legally require their electors to cast ballots for the popular vote winner in that state account for a winning majority of electoral votes, but because of the way partisan lines fall in this era of American politics, it doesn’t cover enough ground to ensure either the Democrat or the Republican a win:
FairVote notes that some scholars argue that such laws binding electors to the popular vote could be ruled unconstitutional if challenged in court, so, in theory, all 538 electors could wind up as unpledged electors some day.
If you want to play according to the strict rule of the process, we shouldn’t celebrate on November 8 when the Democratic nominee defeats Donald Freakin’ Trump in a rout. Constitutionally, it’s still a contested election even after all of the votes have been cast. Going strictly by the rules of the process, it’s premature to celebrate until December 14 when our nominee officially defeats Trump in the electoral vote—a purist would want to wait even longer, until January 6 when Congress counts and certifies the results.
But we don’t do that. We declare a winner by the end of voting on election night because we know the outcome even though the final, official votes haven’t been cast. Since those unbound electors have told us how they’re going to vote, we can say with almost 100% confidence that the so-called “super-electors” are not going to change their minds in the short window between the election and the meeting of the electoral college.
The same goes for the Democratic convention. Barring some unexpected, epic landslide in Bernie’s favor on Tuesday, Hillary Clinton will come out of this primary with the most votes and the most pledged delegates, and it won’t even be close. She’s leading by double-digits in the popular vote, and she’s likely to end the day with a pledged delegate lead of more than 300 over Bernie Sanders. Even without the results tomorrow, her current lead in votes and delegates is many times larger than then-Sen. Obama’s lead was at any point back in 2008.
Most of the superdelegates have told us how they’re going to vote. They’re going to vote for the person they believe is the best for the job, which, for most of them, is also the person who won the most votes and the most delegates by a wide margin. The superdelegates aren’t going to swing the nomination barring some earth-shattering event, just like those 236 unbound electors in the electoral college will likely never swing the election barring some crazy circumstances.
If we can declare a president-elect on election night in November when he or she is projected to win 270 electoral votes, even when a full 43% of those electors can vote for whomever they prefer, you bet we’re going to recognize our presumptive nominee on June 7 when she is projected to have won 2,383 delegates to the convention. It wouldn’t be any other way for any other candidate.