Relevant text (12th Amend):
"The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President."
The key phrase here being "a majority of the whole number of Electors appointed". Does appointed mean the number of Electors submitted their votes to the President of the Senate? or does it mean the total number of electors having been appointed by State Legislatures? Either way, 278 is enough to elect Bernie president (but if GOP electors refuse to sit, it may create the unique quirk that Sanders is the first President to be elected unanimously since George Washington).
The legal fiction is that the electors are "appointed" on election day. Every voter said they wanted the electors associated with Trump, Clinton, Johnson, Stein. etc. to be appointed, even though it took a few days/weeks for the results to be ascertained (
ascertain means to make a final definitive determination).
The US Constitution permits Congress to set the
date the electors vote, and the
time of their appointment.
After the Constitution had been ratified, the Continental Congress set the schedule for it to come into effecting, setting the first Wednesday in January, February, and March 1789 for:
(a) appointment of electors.
(b) meeting of electors in each state.
(c) meeting of Congress.
The first Wednesday in March 1789 was March 4. That is why congressional and presidential terms were deemed to begin on March 4. The Constitution provided for terms of representatives, senators, and presidents in years. The Congress being literalists decided that meant that terms would begin on March 4 of odd-years henceforth.
The House and Senate did not have quorums on March 4, 1789; so they could not take any official actions, the foremost of which was to count the electoral votes. Electoral votes are counted in joint session, and the House elects the president on a contingency basis. When they finally counted the electoral votes and determined that Washington had received 100% of the electoral votes; could be informed of his election; and travel to New York City, it was April 30, 1789. The United States did not have a President for almost 2 months. Incidentally, John Adams did not have a majority of the electoral votes, but the original Constitution provided that the runner-up would be elected regardless if he had a majority.
Congress decided it would be problematic to not have a President for some period every four years. So they worked out a schedule where the outgoing Congress would count the electoral votes and if necessary elect a President. If they were going to count the votes in January of the odd year, the electoral votes had to be cast in early December, to permit the results to be transmitted to Congress. They set a date.
They also set an appointment time to be November. In 1800, Thomas Jefferson and Aaron Burr tied, both with a majority. When the House met to choose the president, Jefferson did not have a majority of state delegations, as Federalist representatives voted for crooked Aaron, rather than crazy Tom. It was not resolved until a 36th ballot and March 4 approaching.
This led to the 12th Amendment but did not change the overall calendar.
