The Electoral College prevents electing a vice presidential candidate separate from a presidential candidate

Recently, news about a startup campaign to elect the vice president separately from electing the president has popped up. As the vice.run movement describes itself, its goal is to “reinstate the vice presidency as a democratically elected position. Vice.run’s goal is to create a vice presidential ballot line in the 2020 election in all 50 states.”

It sounds like a fascinating idea. But under any scrutiny, it just won’t work. That’s because the Electoral College doesn’t function this way.

To begin, it’s entirely correct to say that states don’t have to list a particular president-vice president combination unless they seek ballot access for that combination, and it’s possible to think about alternative arrangements to how we typically look at elections. A couple of historic examples come to mind. In 1836, the Virginia Democratic Party despised Martin Van Buren’s running mate Richard Mentor Johnson. While most states’ electors ultimately voted for Van Buren and Johnson, Virginia’s electors voted for Van Buren and William Smith. That prevented Johnson from receiving a majority of electoral votes, so the election was sent to the Senate, which elected Johnson over runner-up Whig Francis Granger.

In the same election, Whigs chose not to field a single candidate, but fielded multiple candidates that they hoped each would receive sufficient support over the Democratic candidate, prevent the Democratic candidate from securing a majority of electors, and send the race to the House of Representatives to choose among the top three vote-getters, potentially yielding a Whig candidate.

All this is to say we’ve seen some interesting and creative attempts to use the Electoral College framework to achieve particular ends. But what about a separate vice presidential candidate?

The logic (although there isn’t much law) spelled out on the vice.run site goes as follows: a vice presidential candidate could be a separate line on the ballot. The people could then choose to vote for a particular presidential candidate and an entirely different vice presidential candidate. Particularly attractive independent vice presidential candidates may force presidential candidates to choose them as their running mates.

All interesting ideas. But utterly unworkable due to the Electoral College.

Each state receives presidential electors equal to the number of senators and representatives they receive—say, Vermont receives three. On Election Day, the first Tuesday after the first Monday in November, when voters cast a vote for Clinton-Kaine or Trump-Pence, they are actually casting a vote for three electors pledged to support Clinton-Kaine or Trump-Pence. (“Pledged” I use very loosely—some states have formal pledges, some are legally binding, others are mere informalities or general expectations.)

Then, on the first Monday after the second Wednesday in December, Vermont’s three presidential electors meet in the state, along with electors from the other states in their respective states. The electors cast two votes: one for president, and on a distinct ballot, one for vice president. (The headline of my post is a bit misleading—in fact, presidential electors are required to vote for a separate president and vice president. This post is about the people voting via ballot separately.)

Suppose now there is an election with a separate line item for president and vice president. How would we choose the electors? We simply couldn’t. We can’t pick three electors for president and another three electors for vice president; that would require a state to choose six electors, which it couldn’t do. So we’d need the same electors for president and vice president—which means we couldn’t have separate lines unless the electors were the same, or aligned with one another, which would seem to defeat the purpose of having separate lines.

Instead, the only feasible opportunity to have presidential and vice presidential candidates elected separately would look as follows: the state legislature chooses three electors; it designates that those electors must be bound to vote in accordance with the popular vote of a presidential candidate and a vice presidential candidate; then, those electors would have to vote for whichever presidential and vice presidential candidate were selected.

It’s not clear that this is permissible. Federal law requires that the electors be appointed on the first Tuesday after the first Monday in November. It’s not a straw poll to bind existing electors. So it’s unclear to me that a state could appoint its electors before the election. Additionally, if Election Day is about the appointment of electors, then there has to be a fixed number equal to the state’s total, which means you need a president-vice president slate of electors, not independent lines.

There are other confusing ways to think through this problem, like assuming there’s just one slate of electors representing all the names on the ballot, but I’m not sure these are feasible, either. And I’m also assuming the state can compel the electors to vote for the candidate they’re pledged to support—something I think is right, but certainly not uncontested. (Of course, faithless electors are a common problem in any Electoral College reform scenario, so I don’t dwell on that.) It also increases the likelihood that voters in a state choose a president and a vice president from their own state, if there are pluralities or tradeoffs in voting, which is impermissible under the Constitution—electors must vote for at least one candidate who is not an inhabitant of their state, and a president-vice president slate usually avoids this.

Unless I’m missing something—correct me if I am!—this scheme simply can’t work absent the legislature wholesale taking over the choosing of electors and having a straw poll of the people sometime before Election Day. The Electoral College anticipates one set of electors chosen on Election Day. That set of electors can exist however one sees fit, of course. But if voters have to make a choice of a president and a vice president on separate lines, there’s no feasible way to pick one common slate of electors like the Constitution demands.

Amicus Curiae Brief In Support of Neither Party in Baca v. Colorado Department of State

I'm pleased to share a brief I filed in Baca v. Colorado Department of State, a Tenth Circuit case concerning the power of state legislatures to cabin the discretion of presidential electors. You can view the brief here. It's part of a larger project on some archival research on original practices of the states concerning presidential electors--but, alas, the litigation calendar does not await the academic one!

From the Summary of Argument:

The text of the Constitution offers little about the scope of state authority to regulate presidential electors. And there is little judicial precedent about the proper scope of authority of states regulating presidential electors. See, e.g., Ray v. Blair, 343 U.S. 214 (1952). But there are extensive practices in states and in Congress—including practices at the time of the ratification of the Twelfth Amendment—that may help this Court determine the liquidated meaning of these constitutional provisions. Cf. The Federalist No. 37, at 236 (James Madison) (J.E. Cook ed., 1961).

These state and congressional practices reveal three conclusions. First, presidential electors have no right to anonymity when casting their ballots. Second, states have the power to replace presidential electors and levy fines on presidential electors, even after those electors have been selected. Third, Congress holds the power to scrutinize and even reject the electoral votes. In 2017, however, Congress counted Colorado’s electoral votes, and this Court has been asked to revisit a decision reserved to the judgment of Congress. When this Court decides this case, it should interpret the Twelfth Amendment through the practices of the states and of Congress.

The challenge facing the challenge to winner-take-all systems in the Electoral College

David Boies is leading an effort to challenge the winner-take-all method that most states use when awarding presidential electors. There are different ways states might award electors (which I used to project alternative electoral outcomes in 2016).

Brenden Cline in 2017 nicely summarized the series of major problems with this litigation. It's been argued and rejected before. Simply put, states have essentially plenary authority to choose the method of appointing electors, and the winner-take-all method has been around for 200 years, and used basically everywhere since the Civil War--with brief exceptions in Colorado in 1876 (legislative selection), Michigan in 1892 (district method), and Nebraska and Maine (district method) in recent years. (I discuss this plenary authority in 2007 and 2008 Election Law Journal pieces, which conclude that that plenary authority does not extend to states entering into interstate compacts with one another concerning the award of electors--at least not without congressional consent. I also discuss it as an element of federalism in Invisible Federalism and the Electoral College, 44 Arizona State Law Journal 1237 (2012).)

Since Election Day, a number of litigants--admittedly, mostly (if not all!) pro se--have attempted to file just such challenges. They've lost every time (0-6 by my count).

Schweikert v. Herring (W.D. Va. 2016): "The precise issue contained in Plaintiff’s complaint was previously litigated, dismissed, and affirmed summarily by the Supreme Court. Williams v. Virginia State Bd. of Elections, 288 F. Supp. 622 (E.D. Va. 1968) (3 judge court), aff’d per curiam, 393 U.S. 320 (1969), reh’g denied, 393 U.S. 1112 (1969) . This Court lacks the authority to reach a conclusion that directly contradicts the Supreme Court’s own jurisprudence—which is precisely what Plaintiff’s complaint would ask this Court to do. Accordingly the case must be dismissed."

Birke v.The 538 Individual Members of the Electoral College (C.D. Cal. 2016): "to the extent Plaintiff challenges some states' 'winner-take-all' procedures . . . Plaintiff's challenges similarly lack merit. . . . Williams v. Virginia State Bd. of Elections, 288 F. Supp. 622 (E.D. Va. 1986), aff'd, 393 U.S. 320 (1969) (per curiam) (upholding 'winner-take-all' procedure for choosing electors)."

Conant v. Brown (D. Or. 2017): "Plaintiff's arguments are foreclosed by Supreme Court precedent. In a 1969 case, the Supreme Court summarily affirmed, per curiam, the district court's rejection of constitutional challenges to Virginia's method of providing electors to the electoral college based on a plurality vote in a statewide election. Williams v. Va. St. Bd. of Elections, 393 U.S. 320 (1969) (per curiam)."; affirmed, 726 Fed. App’x 611 (9th Cir. 2018).

Schultz v. Roberts (S.D. Cal. 2017): "The Electoral College system is specifically provided for by the Twelfth Amendment. Gray v. Sanders, 372 U.S. 368, 380 (1963) (“The only weighting of votes sanctioned by the Constitution concerns matters of representation, such as . . . the use of the electoral college in the choice of a President.”). Schwartz does not allege any facts to support his claim that the Electoral College system violates his constitutional right to equal protection."; affirmed, 2018 WL 5314057 (9th Cir. 2018).

Williams v. North Carolina (W.D.N.C. 2017): "Defendants conclude that Plaintiff’s claims in this matter regarding the winner-take-all method of appointing electors do not differ significantly, if at all, from those asserted in McPherson, Delaware, Penton, Williams, Schweikert, Hitson, Conant, or Birke. The opinions in these cases, particularly the Supreme Court’s opinion in Blacker and summary affirmation of Williams, apply herein."

Gordon v. Nat'l Archives & Records Admin. (D.D.C. 2017): standing

Of course, part of litigation like this is theatrical. Another part of litigation like this is to get the Supreme Court to address the merits of the dispute, even if lower courts ought, under existing precedent, summarily dismiss such claims. But, time will tell whether this effort is any more successful than the many, many failed efforts that have gone before.

Update: Park v. Parnell (D. Alaska 2016): "As Judge Kleinfeld articulately stated, '[o]ur Constitution requires that electoral votes be cast state-by-state, not that the President be elected by plurality or majority of the nationwide popular vote.... Whether the electoral college and winner-take-all casting of electoral votes is a good idea or not has no bearing on the law. Article II, section 1 and the Twelfth Amendment are the Constitution we have.' Park's remedy lies in the constitutional amendment process, and not with the courts."

Update: Liu v. Ryan (2d Cir. 2018): "Here, Liu admits that his alleged injury is widely shared by the vast majority of Americans, and that injury is derivative because the Constitution grants states, not individuals, the right to select presidential electors, such that any harm arising from the disproportionality of the Electoral College belongs, in the first instance, to the states."

Status of 2016 faithless presidential elector litigation

One year ago, December 19, 2016, an unprecedented number of faithless electors intentionally cast (or attempted to cast) votes for candidates other than those they pledged to support, either Donald Trump or Hillary Clinton. Congress ultimately decided to count all the electoral votes as cast.

But some of these faithless (or would-be faithless) electors sued, and the litigation remains ongoing. Much like my tracking of "natural born" citizen lawsuits, I thought I'd share the status of faithless elector litigation.

California: an elector wanted to cast a vote for someone other than Hillary Clinton and Tim Kaine but ultimately voted for them.

Vinzenz Koller: lawsuit filed, Koller v. Brown (N.D. Cal. 2016-cv-07069), motion to dismiss granted Apr. 20, 2018

Colorado: two electors threatened to vote for candidates other than Hillary Clinton and Tim Kaine but ultimately voted for them. A third attempted to vote for John Kasich, but his vote was not counted, he was removed for failure to act.

Michael Baca, Polly Baca, & Robert Nemanich: lawsuit filed, Baca v. Colorado Department of State (D. Colo. 17-cv-01937), motion to dismiss granted Apr. 10, 2018, appeal filed (10th Cir. 18-1173), argued Jan. 24, 2019.

Minnesota: an elector attempted to vote for Bernie Sanders instead of Hillary Clinton and was replaced.

Muhammad Abdurrahman: complaint dismissed as moot (D. Minn. 16-cv-04279); appeal field (8th Cir. 16-4551), Abdurrahman v. Swanson, affirmed Sept. 12, 2018.

Washington: four faithless electors were each fined $1000 for casting votes for candidates other than Hillary Clinton and Tim Kaine. The state administrative appeals are here.

Robert Satiacum: administrative order became final June 13, 2017.

Levi Guerra, Esther John, & Peter Chiafalo: federal lawsuit (W.D. Wash. 16-cv-01886) voluntarily dismissed; state administrative appeal to Thurston County Superior Court, Docket No. 17-2-02446-34; Guerra v. State Office of Administrative Hearings, affirmed, Dec. 8, 2017; appeal filed with Supreme Court (No. 953473), brief filed Aug. 10, 2018, argued Jan. 22, 2019.

Puerto Rican statehood and the effect on Congress and the Electoral College

After the low-turnout, high-pro-statehood referendum in Puerto Rico last weekend, despite the low likelihood of it becoming a state, it's worth considering the impact that statehood might have in representation and elections.

Puerto Rico would receive two Senators, increasing the size of the Senate to 102.

Census estimates project that Puerto Rico would send five members to the House. Since 1929, the House has not expanded in size, so it would mean that Puerto Rico's delegation would come at the expense of other states' delegations. In 1959, however, with the admission of Hawaii and Alaska, Congress temporarily increased in size from 435 members to 437, then dropped back down to 435 after the 1960 Census and reapportionment. Congress might do something similar with Puerto Rico upon statehood. (For some thoughts about doubling the size of the House, see my post on the Electoral College.)

Based on projections for 2020, Puerto Rico's five seats would likely come at the expense of one seat each from California, Montana, New York, Pennsylvania, and Texas. (It's worth noting these are based on the 2020 projections; Montana is likely to receive a second representative after the 2020 reapportionment.)

This would also mean that in presidential elections, Puerto Rico would have 7 electoral votes, and these five states would each lose an electoral vote. The electoral vote total would be 540, and it would take 271 votes to win.

Would doubling the size of the House affected the Electoral College outcome in 2016?

A common mantra after the presidential election sounded something like this: "California is so much larger than Wyoming, but a vote cast in California has only a third of the value of a vote cast in Wyoming in the presidential election." Or something like that. This, in turn, is often a proxy for criticizing the Electoral College.

The Electoral College allocates electors based on the total number of members of the House and Senate each State has--and, as each State is guaranteed at least one House representative, no matter how small, and exactly two Senators, no matter the size, each state will receive at least three electoral votes. With a House of 435 members, a Senate of 100 members, and 3 votes for the District of Columbia, we get 538 electoral votes, 270 needed to win.

In the 2016 presidential election, that looked something like this: Californians cast over 14 million votes for president. Given California's 55 electoral votes, that works out to about257,847 votes cast per electoral vote. In Wyoming, there were 255,849 total votes cast for president. That works out to about 85,283 votes cast per electoral vote. And that's just about a 3:1 ratio. (Granted, the House is apportioned based on total population, not ballots cast, but let's stick with this metric for now. And, of course, this is a rather crude approximation of how to "weigh" votes, considering that these are winner-take-all states rather than votes-per-elector, but it has an understandable simplicity and rhetorical appeal.)

(Here, too, it may be worth noting that this fairly grossly overstates a single voter's power. Put in reverse, a California voter is providing 0.0000039 of the total value of a single electoral vote; a Wyoming voter is providing 0.0000117.)

In some ways, the real problem people have with this disparity is the United States Senate itself. But much of the reason that this disparity exists is because the size of the House of Representatives has not increased since 1929. The Reapportionment Act of 1929 capped the size of the House at 435 members--and, as a result, capped the size of the Electoral College. It meant that disparities in the Electoral College would increase as populations shifted.

Roughly doubling the size of the House to 871 members would give better representation based on total population. And it would do so without any need for a constitutional amendment--a simple statute from Congress could help equalize this spread. But would it have changed anything in the 2016 presidential outcome? Not really-it would smooth out some of the disparities but have no meaningful effect on the outcome (except to actually widen the margin of Donald Trump's victory).

Using the Equal Proportions Method, we can fairly quickly calculate how these 871 seats would be allocated based on the 2010 census. The smallest state in this scenario receives two House members. We'd then add in 100 electors for the Senate, another 4 electors for the District of Columbia, and come to a nice round 975 electoral votes: 488 votes to win. And like the five fictional Electoral College outcomes I provided recently, we can recalculate the 2016 election after our newly-constructed House.

By giving California a whopping 104 members in the House--and 106 electoral votes--we'd see the 2016 totals drop to 133,788 votes cast per electoral vote. In Wyoming, which would get a second member in the House and 4 electoral votes, it would have 63,962 votes cast per electoral vote. The California:Wyoming ratio would drop from 3:1 to 2:1. That would certainly improve the disparity, but hardly cure it.

And despite improving the disparity, we see little change in the overall outcome. (I assumed a winner-take-all in each state, despite Maine's and Nebraska's systems.) It yielded 547 electoral votes for Mr. Trump to 428 for Hillary Clinton--a comfortable margin of victory, and by raw pledged electors much larger than his actual 2016 victory. So while it might help reduce some of the rhetoric regarding disparities in vote power across states--and improve some of the actual voting power--it wouldn't offer any dramatic change to our system.

I have the complete breakdown of electoral votes below. If you'd like to reverse-engineer the House figures, simply subtract two from each state.


Size of House of Representatives Doubled, Winner-Take-All
  Clinton Trump
Alabama   16
Alaska 4
Arizona   18
Arkansas 10
California 106  
Colorado 15  
Connecticut 13  
Delaware 4  
District of Columbia 4  
Florida 51
Georgia   27
Hawaii 6  
Idaho   6
Illinois 40  
Indiana   21
Iowa 11
Kansas   10
Kentucky 14
Louisiana   16
Maine 6  
Maryland 18  
Massachusetts 22  
Michigan   33
Minnesota 17  
Mississippi   11
Missouri 19
Montana   5
Nebraska 7
Nevada 8  
New Hampshire 6  
New Jersey 28  
New Mexico 8  
New York 61  
North Carolina 30
North Dakota   4
Ohio 37
Oklahoma   13
Oregon 13  
Pennsylvania   40
Rhode Island 5  
South Carolina   14
South Dakota 4
Tennessee   20
Texas 66
Utah   9
Vermont 4  
Virginia 24  
Washington 20  
West Virginia   8
Wisconsin 19
Wyoming   4
Totals 428 547

Five fictional Electoral College outcomes from the 2016 presidential election

The Constitution provides that when it comes to presidential elections, "[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors . . . ." State legislatures have great discretion in deciding how to choose electors.

Forty-eight states and the District of Columbia choose the same process: the candidate who receives the plurality of votes in a statewide election wins all of that state's electors. (That is, all the state's pledged electors; electors, of course, can be faithless, as some were this election.) In Maine and Nebraska, the system is slightly different--two electors are award on this basis, and the remaining electors (two in Maine, three in Nebraska) are awarded to the winner of each congressional district.

In the 2016 presidential election, this system yielded 306 pledged electors for Donald Trump and 232 for Hillary Clinton. (The numbers changed slightly because of faithless electors.)

But there are many ways that electors might be awarded. What would the 2016 presidential election have looked like under other systems? Of course, the candidates and voters would have behaved differently, but it's worth exploring how even some seemingly small changes to the rules could dramatically alter the outcome. I created a few scenarios and assumed that all 50 states and the District of Columbia followed them. (Again, these all projected a pledged elector total.)

First, a purely proportional system. In each state, I divided the total number of electoral votes by the percentage of votes received. I used ordinary rounding rules. In a couple of states, that yielded one too many votes, and I deducted it from the candidate with the smaller fraction that was rounded; in others, it was a vote short, and I gave it to the candidate that was the statewide winner. There was no floor, so it made it much easier for third-party candidates to secure a vote.

Clinton 265
Trump 261
Johnson 10

Stein 1
McMullin 1

Because no candidate received 270 electoral votes, the election would have been sent to the House, which would have chosen among Clinton, Trump, and Johnson. The Senate would have chosen between Kaine and Pence.

Johnson would receive two electors from California, and a scattered number of votes in other states. Stein's single electoral vote would have come from California; McMullin's from Utah.

Second, a proportional system among candidates who received at least 15% of the vote. That ensured that only sufficiently "serious" candidates received the vote. This is not unlike many state presidential primaries.

Clinton 270
Trump 267
McMullin 1

This scenario would have been a nailbiter to the end, where rounding errors in some states (or, perhaps, in my own spreadsheet!) might have swung the election into a tie or to Mr. Trump. Assuredly, recounts would abound for those fractions that would have swung an elector from Mrs. Clinton to Mr. Trump.

Third, a winner-take-all if a candidate exceeds 50% of the vote, otherwise proportional among candidates who received at least 15% of the vote. Currently, states award their electoral votes to the winner of a mere plurality. But perhaps a state would choose to award its electoral votes on a winner-take-all basis only if that candidate secured a majority of the vote, not merely a plurality. Otherwise, electors would be awarded proportionally (here, using the 15% floor). This is also similar to how many states award delegates in presidential primaries.

Trump 277
Clinton 260
McMullin 1

Fourth, an elector per congressional district and two electors to the statewide winner. This would mirror the Maine and Nebraska method, but instituted nationwide. Of course, in states with a single at-large congressional representative (or the District of Columbia), three votes would go to the statewide winner. The heavy lifting has been done elsewhere to calculate these totals, leaving the simpler task to this compilation....

Trump 290
Clinton 248

Fifth, state legislatures select the presidential electors themselves. This was a common way of selecting electors through the 1824 election. I looked at the partisan composition of all state legislatures in November 2016 and assumed they assembled in a joint session to choose electors. I then assumed partisan allegiances would stand (no small assumption this election!): Democratic members would vote for Mrs. Clinton, Republican members would vote for Mr. Trump. (I assumed Congress would empower the District of Columbia's Council to choose its electors.)

Trump 338
Clinton 200

Of note, the outcome looks almost no different than the billions spent on a popular election. The Minnesota, New Hampshire, Nevada, and Virginia legislatures had Republican control, and their electoral votes would have been given to Mr. Trump (under the assumed scenario). Apart from Maine's district system, that's the total difference in the outcome. The slimmest margin came from Washington state, where the Senate was controlled by Republicans by a single vote, and the House by Democrats by two votes, giving Mrs. Clinton all 12 electors by one vote.

You can examine the actual results of the 2016 election on Wikipedia. Now, below, are the detailed state-by-state totals for each of these five scenarios.


Purely Proportional System
  Clinton Trump Johnson Stein McMullin
Alabama 3 6      
Alaska 1 2  
Arizona 5 6      
Arkansas 2 4  
California 35 17 2 1  
Colorado 5 4  
Connecticut 4 3      
Delaware 2 1  
District of Columbia 3 0      
Florida 14 14 1  
Georgia 7 9      
Hawaii 3 1  
Idaho 1 3      
Illinois 11 8 1  
Indiana 4 6 1    
Iowa 3 3  
Kansas 2 4      
Kentucky 3 5  
Louisiana 3 5      
Maine 2 2  
Maryland 7 3      
Massachusetts 7 4  
Michigan 7 8 1    
Minnesota 6 4  
Mississippi 2 4      
Missouri 4 6  
Montana 1 2      
Nebraska 2 3  
Nevada 3 3      
New Hampshire 2 2  
New Jersey 8 6      
New Mexico 3 2  
New York 17 11 1    
North Carolina 7 8  
North Dakota 1 2      
Ohio 8 9 1  
Oklahoma 2 5      
Oregon 4 3  
Pennsylvania 10 10      
Rhode Island 2 2  
South Carolina 4 5      
South Dakota 1 2  
Tennessee 4 7      
Texas 16 21 1  
Utah 2 3     1
Vermont 2 1  
Virginia 7 6      
Washington 6 5 1  
West Virginia 1 4      
Wisconsin 5 5  
Wyoming 1 2      
Totals 265 261 10 1 1
Proportional, 15% Floor
  Clinton Trump McMullin
Alabama 3 6  
Alaska 1 2  
Arizona 5 6  
Arkansas 2 4  
California 36 19  
Colorado 5 4  
Connecticut 4 3  
Delaware 2 1  
District of Columbia 3 0  
Florida 14 15  
Georgia 8 8  
Hawaii 3 1  
Idaho 1 3  
Illinois 12 8  
Indiana 4 7  
Iowa 3 3  
Kansas 2 4  
Kentucky 3 5  
Louisiana 3 5  
Maine 2 2  
Maryland 6 4  
Massachusetts 7 4  
Michigan 8 8  
Minnesota 5 5  
Mississippi 2 4  
Missouri 4 6  
Montana 1 2  
Nebraska 2 3  
Nevada 3 3  
New Hampshire 2 2  
New Jersey 8 6  
New Mexico 3 2  
New York 18 11  
North Carolina 7 8  
North Dakota 1 2  
Ohio 8 10  
Oklahoma 2 5  
Oregon 4 3  
Pennsylvania 10 10  
Rhode Island 2 2  
South Carolina 4 5  
South Dakota 1 2  
Tennessee 4 7  
Texas 17 21  
Utah 2 3 1
Vermont 2 1  
Virginia 7 6  
Washington 7 5  
West Virginia 1 4  
Wisconsin 5 5  
Wyoming 1 2  
Totals 270 267 1
Winner-Take-All Over 50%; Otherwise, Proportional, 15% Floor
  Clinton Trump McMullin
Alabama   9  
Alaska 3  
Arizona 5 6  
Arkansas 6  
California 55    
Colorado 5 4  
Connecticut 7    
Delaware 3  
District of Columbia 3    
Florida 14 15  
Georgia   16  
Hawaii 4  
Idaho   4  
Illinois 20  
Indiana   11  
Iowa 6  
Kansas   6  
Kentucky 8  
Louisiana   8  
Maine 2 2  
Maryland 10    
Massachusetts 11  
Michigan 8 8  
Minnesota 5 5  
Mississippi   6  
Missouri 10  
Montana   3  
Nebraska 5  
Nevada 3 3  
New Hampshire 2 2  
New Jersey 14    
New Mexico 3 2  
New York 29    
North Carolina 7 8  
North Dakota   3  
Ohio 18  
Oklahoma   7  
Oregon 7  
Pennsylvania 10 10  
Rhode Island 4  
South Carolina   9  
South Dakota 3  
Tennessee   11  
Texas 38  
Utah 2 3 1
Vermont 3  
Virginia 7 6  
Washington 12  
West Virginia   5  
Wisconsin 5 5  
Wyoming   3  
Totals 260 277 1
One Elector Per Congressional District; Two to Statewide Winner
  Clinton Trump
Alabama 1 8
Alaska 3
Arizona 4 7
Arkansas 6
California 48 7
Colorado 6 3
Connecticut 7  
Delaware 3  
District of Columbia 3  
Florida 13 16
Georgia 4 12
Hawaii 4  
Idaho   4
Illinois 13 7
Indiana 2 9
Iowa 6
Kansas 1 5
Kentucky 1 7
Louisiana 1 7
Maine 3 1
Maryland 9 1
Massachusetts 11  
Michigan 5 11
Minnesota 5 5
Mississippi 1 5
Missouri 2 8
Montana   3
Nebraska 5
Nevada 4 2
New Hampshire 3 1
New Jersey 9 5
New Mexico 4 1
New York 20 9
North Carolina 3 12
North Dakota   3
Ohio 4 14
Oklahoma   7
Oregon 6 1
Pennsylvania 6 14
Rhode Island 4  
South Carolina 1 8
South Dakota 3
Tennessee 2 9
Texas 14 24
Utah   6
Vermont 3  
Virginia 7 6
Washington 9 3
West Virginia   5
Wisconsin 2 8
Wyoming   3
Totals 248 290
State Legislature Choosing Electors in Joint Session
  Clinton Trump
Alabama   9
Alaska 3
Arizona   11
Arkansas 6
California 55  
Colorado 9  
Connecticut 7  
Delaware 3  
District of Columbia 3  
Florida 29
Georgia   16
Hawaii 4  
Idaho   4
Illinois 20  
Indiana   11
Iowa 6
Kansas   6
Kentucky 8
Louisiana   8
Maine 4  
Maryland 10  
Massachusetts 11  
Michigan   16
Minnesota 10
Mississippi   6
Missouri 10
Montana   3
Nebraska 5
Nevada   6
New Hampshire 4
New Jersey 14  
New Mexico 5  
New York 29  
North Carolina 15
North Dakota   3
Ohio 18
Oklahoma   7
Oregon 7  
Pennsylvania   20
Rhode Island 4  
South Carolina   9
South Dakota 3
Tennessee   11
Texas 38
Utah   6
Vermont 3  
Virginia   13
Washington 12  
West Virginia   5
Wisconsin 10
Wyoming   3
Totals 200 338

In today's WSJ: "Faithless Electors: Now It’s Up to Congress"

In today's Wall Street Journal, I have an opinion piece entitled, "Faithless Electors: Now It's Up to Congress." It begins:

The 538 members of the Electoral College convened Monday and cast a majority of their votes for Donald Trump for president and Mike Pence for vice president. When Congress convenes on Jan. 6 to count the votes, it will mostly be a formality. But its decision to count or exclude the votes of some “faithless electors” will set a precedent for future elections.

And it concludes:

These are challenging questions that cannot be answered by a judge or a court. Only Congress decides what to count. And while it won’t change the outcome of this election, its decisions will affect how states handle faithless electors in the 2020 election and beyond.