The Electoral College, Part 1: What Is It?
Sherwin Markman • May 26, 2020
Ah, yes, here we go again, four years later, facing what our president admires and the Democrats decry: the Electoral College. Thus, as Americans — as good citizens — it behooves us to take still another look at it, swallow whatever joy or dismay we may feel, and deal with it as best we can.
I will attempt to set down on paper here in four short (relatively) articles, an overview that will cover, in turn: What is this Electoral College of ours? How did it happen to come about? What has it done to us? Ought it to be changed and, if so, how?
So, then, what is this Electoral College?
Well, first of all, it is no “college” at all. It is, instead, a group of people appointed state by state in whatever manner each state legislature directs, who, in turn, determine, by majority vote, the person who shall be the president of the United States.
Specifically, what has become known as the Electoral College, was created by Article II, Section I of our Constitution, as modified and changed by Amendment XII (ratified on June 15, 1804), Amendment XX (ratified on January 23, 1933), and Amendment XXIII (ratified on March 29, 1961). Putting this all together, this is what we have now:
1. Each state shall “appoint”;
2. In such manner as its state legislature directs;
3. A number of “electors”;
4. Equal to the whole number of its representatives in Congress plus its two senators (Thus, Maryland, for example, now has 10 electoral votes — eight members of the House plus its two senators). In addition, the District of Columbia has been granted the electoral votes of the least populous state (three);
5. And the electors shall meet in their own states at a uniform time as set by Congress;
6. Where they shall cast their ballots separately for president and vice president; and
7. The candidates who receive a majority of those votes shall become president and vice president, respectively.
There are now 538 Electors, a number reached by adding 435 voting members of the House, plus the 100 senators, plus the three votes granted to the District of Columbia. Thus, it takes at least a 270 electoral vote majority to elect a president.
Even though there is no requirement to do so, every state provides that its electors are to be selected by popular vote, and, except for Maine and Nebraska (which apportion their votes), every state has decreed that all of its electors shall vote as the winner of its popular vote decides; i.e., winner takes all.
And so it is that under our electoral system, the idea that all American citizens have the same voting power utterly disappears. Thus, California, with its 55 electoral votes, has 60 times the population of Vermont, with its three electoral votes. Therefore, each Vermont voter’s presidential vote is worth three and a half times that of each California voter. The inescapable truth is that all citizens living in large population states are severely penalized in the selection of our president.
The disparity in voting equality is far worse if an election results in no candidate winning a majority of the electoral votes. In that eventuality (which could — and has on occasion — come about when more than two viable candidates are in the race), our Constitution provides that the presidential selection is sent to the House of Representatives, which is to vote among the top three electoral vote candidates. But the voting in the House is unique: It is not congressman by congressman, but, instead, it is state by state. Each of our 50 states gets one vote, and that vote is determined by a majority of its congressman. If the state’s congressional delegation vote ends up in a tie, that state does not vote. The winner is the candidate who wins the votes of 26 states.
Under this system, again using Vermont and California as examples, each state has an equal one vote voice in the election, and thus the weight of a Vermont citizen’s presidential vote becomes 60 times that of a citizen of California. To put all of it into perspective, 26 states representing less than 16 percent of our nation’s population, could elect our president.
Under our current system, the failure of any presidential candidate to receive a majority of the electoral votes will also result in a similar electoral failure by any vice-presidential candidate. However, unlike the presidential selection, the Constitution provides that, in that case, the selection of the vice president will be made between the two top candidates by the Senate, voting as it normally does.
None other than Thomas Jefferson, when contemplating this system in 1823, stated:
“I have ever considered the constitutional mode of election ultimately by states as the most dangerous blot on our Constitution, and one which will someday hit.”
And so we come to the question: How in the world did this all come about? That will be addressed in my next article.
Sherwin Markman, a graduate of the Yale Law School, lives in Rock Hall, Maryland. He served as an assistant to President Lyndon Johnson, after which he was a trial lawyer in Washington, D.C. He has published several books, including one dealing with the Electoral College. He has also taught and lectured about the American political system.
Common Sense for the Eastern Shore
Megan Outten, a lifelong Wicomico County resident and former Salisbury City Councilwoman, officially announced her candidacy recently for Wicomico County Council, District 7. At 33, Outten brings the energy of a new generation combined with a proven record of public service and results-driven leadership. “I’m running because Wicomico deserves better,” Outten said. “Too often, our communities are expected to do more with less. We’re facing underfunded schools, limited economic opportunities, and years of neglected infrastructure. I believe Wicomico deserves leadership that listens, plans ahead, and delivers real, measurable results.” A Record of Action and A Vision for the Future On Salisbury’s City Council, Outten earned a reputation for her proactive, hands-on approach — working directly with residents to close infrastructure gaps, support first responders, and ensure everyday voices were heard. Now she’s bringing that same focus to the County Council, with priorities centered on affordability, public safety, and stronger, more resilient communities. Key Priorities for District 7: Fully fund public schools so every child has the opportunity to succeed. Fix aging infrastructure and county services through proactive investment. Keep Wicomico affordable with smarter planning and pathways to homeownership. Support first responders and safer neighborhoods through better tools, training, and prevention. Expand resources for seniors, youth, and underserved communities. Outten’s platform is rooted in real data and shaped by direct community engagement. With Wicomico now the fastest-growing school system on Maryland’s Eastern Shore — and 85% of students relying on extra resources — she points to the county’s lagging investment as a key area for action. “Strong schools lead to strong jobs, thriving industries, and healthier communities,” Outten said. “Our schools and infrastructure are at a tipping point. We need leadership that stops reacting after things break — and starts investing before they do.” A Commitment to Home and Service Born and raised in Wicomico, Megan Outten sees this campaign as a continuation of her lifelong service to her community. Her vision reflects what she’s hearing from neighbors across the county: a demand for fairness, opportunity, and accountability in local government. “Wicomico is my home; it’s where I grew up, built my life, and where I want to raise my family,” Outten said. “Our county is full of potential. We just need leaders who will listen, work hard, and get things done. That’s what I’ve always done, and that’s exactly what I’ll continue to do on the County Council.” Outten will be meeting with residents across District 7 in the months ahead and unveiling more details of her platform. For more information or to get involved, contact info@meganoutten.com
Way back in 1935, the Supreme Court determined that independent agencies like the Consumer Product Safety Commission (CPSC), the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) do not violate the Constitution’s separation of powers. Humphrey’s Executor v. United States (1935). Congress provided that the CPSC, like the NLRB and MSPB, would operate as an independent agency — a multi-member, bipartisan commission whose members serve staggered terms and could be removed only “for neglect of duty or malfeasance in office but for no other cause.” Rejecting a claim that the removal restriction interferes with the “executive power,” the Humphrey’s Court held that Congress has the authority to “forbid their [members’] removal except for cause” when creating such “quasi-legislative or quasi-judicial” bodies. As a result, these agencies have operated as independent agencies for many decades under many different presidencies. Shortly after assuming office in his second term, Donald Trump began to fire, without cause, the Democratic members of several of these agencies. The lower courts determined to reinstate the discharged members pending the ultimate outcome of the litigation, relying on Humphrey’s , resulting in yet another emergency appeal to the Supreme Court by the administration. In the first such case, a majority of the Court allowed President Trump to discharge the Democratic members of the NLRB and the MSPB while the litigation over the legality of the discharges continued. Trump v. Wilcox (May 22, 2025). The majority claimed that they do not now decide whether Humphrey’s should be overruled because “that question is better left for resolution after full briefing and argument.” However, hinting that these agency members have “considerable” executive power and suggesting that “the Government” faces greater “risk of harm” from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty,” the majority gave the President the green light to proceed. Justice Kagan, joined by Justices Sotomayor and Jackson, dissented, asserting that Humphrey’s remains good law until overturned and forecloses both the President’s firings and the Court’s decision to award emergency relief.” Our emergency docket, while fit for some things, should not be used to “overrule or revise existing law.” Moreover, the dissenters contend that the majority’s effort to explain their decision “hardly rises to the occasion.” Maybe by saying that the Commissioners exercise “considerable” executive power, the majority is suggesting that Humphrey’s is no longer good law but if that is what the majority means, then it has foretold a “massive change” in the law and done so on the emergency docket, “with little time, scant briefing, and no argument.” And, the “greater risk of harm” in fact is that Congress provided for these discharged members to serve their full terms, protected from a President’s desire to substitute his political allies. More recently, in the latest shadow docket ruling in the administration’s favor, the same majority of the Court again permitted President Trump to fire, without cause, the Democratic members of another independent agency, this time the Consumer Product Safety Commission (CPSC). Trump v. Boyle (July 23, 2025). The same three justices dissented, once more objecting to the use of the Court’s emergency docket to destroy the independence of an independent agency as established by Congress. The CPSC, like the NLRB and MSPB, was designed to operate as “a classic independent agency.” In Congress’s view, that structure would better enable the CPSC to achieve its mission — ensuring the safety of consumer products, from toys to appliances — than would a single-party agency under the full control of a single President. “By allowing the President to remove Commissioners for no reason other than their party affiliation, the majority has negated Congress’s choice of agency bipartisanship and independence.” The dissenters also assert that the majority’s sole professed basis for the more recent order in Boyle was its prior order in Wilcox . But in their opinion, Wilcox itself was minimally explained. So, the dissenters claim, the majority rejects the design of Congress for a whole class of agencies by “layering nothing on nothing.” “Next time, though, the majority will have two (if still under-reasoned) orders to cite. Truly, this is ‘turtles all the way down.’” Rapanos v. United States (2006). * ***** *In Rapanos , in a footnote to his plurality opinion, former Supreme Court Justice Scalia explained that this allusion is to a classic story told in different forms and attributed to various authors. His favorite version: An Eastern guru affirms that the earth is supported on the back of a tiger. When asked what supports the tiger, he says it stands upon an elephant; and when asked what supports the elephant, he says it is a giant turtle. When asked, finally, what supports the giant turtle, he is briefly taken aback, but quickly replies "Ah, after that it is turtles all the way down." John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
Marylanders will not forget this vote.
More than 30,000 of our neighbors in Maryland’s first congressional district will lose their health insurance through the Affordable Care Act and Medicaid because of provisions in the GOP’s heartless tax cut and spending bill passed last week.
Right now, Congress is working on a fast-track bill that would make historic cuts to basic needs programs in order to finance another round of tax breaks for the wealthy and big corporations.
The House Agriculture Committee recently voted, along party lines, to advance legislation that would cut as much as $300 million from the Supplemental Nutrition Assistance Program. SNAP is the nation’s most important anti-hunger program, helping more than 41 million people in the U.S. pay for food. With potential cuts this large, it helps to know who benefits from this program in Maryland, and who would lose this assistance. The Center on Budget and Policy Priorities compiled data on SNAP beneficiaries by congressional district, cited below, and produced the Maryland state datasheet , shown below. In Maryland, in 2023-24, 1 in 9 people lived in a household with SNAP benefits. In Maryland’s First Congressional District, in 2023-24: Almost 34,000 households used SNAP benefits. Of those households, 43% had at least one senior (over age 60). 29% of SNAP recipients were people of color. 15% were Black, non-Hispanic, higher than 11.8% nationally. 6% were Hispanic (19.4% nationally). There were 24,700 total veterans (ages 18-64). Of those, 2,200 lived in households that used SNAP benefits (9%). The CBPP SNAP datasheet for Maryland is below. See data from all the states and download factsheets here.
