Why the Electoral College - History

Why the Electoral College - History

by Marc Schulman

The Electoral College was created for two reasons. The first purpose was to create a buffer between the population and the selection of a President. The second as part of the structure of the government that gave extra power to the smaller states.

The first reason that the founders created the Electoral College is hard to understand today. The founding fathers were afraid of direct election to the Presidency. They feared a tyrant could manipulate public opinion and come to power. Hamilton wrote in the Federalist Papers:

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief.

Hamilton and the other founders believed that the electors would be able to ensure that only a qualified person becomes President. They thought that with the Electoral College no one would be able to manipulate the citizenry. It would act as a check on an electorate that might be duped. Hamilton and the other founders did not trust the population to make the right choice. The founders also believed that the Electoral College had the advantage of being a group that met only once and thus could not be manipulated over time by foreign governments or others.

The Electoral College is also part of compromises made at the convention to satisfy the small states. Under the system of the Electoral College, each state had the same number of electoral votes as they have a representative in Congress. Thus no state could have less than 3. The result of this system is that in this election the state of Wyoming cast about 210,000 votes, and thus each elector represented 70,000 votes, while in California approximately 9,700,000 votes were cast for 54 votes, thus representing 179,000 votes per electorate. This creates an unfair advantage to voters in the small states whose votes count more than those people living in medium and large states.

One aspect of the electoral system that is not mandated in the constitution is the fact that the winner takes all the votes in the state. Therefore it makes no difference if you win a state by 50.1% or by 80% of the vote you receive the same number of electoral votes. This can be a recipe for one individual to win some states by large pluralities and lose others by small number of votes, and thus this is an easy scenario for one candidate winning the popular vote while another winning the electoral vote. This winner take all methods used in picking electors has been decided by the states themselves. This trend took place over the course of the 19th century.

While there are clear problems with the Electoral College and there are some advantages to it, changing it is very unlikely. It would take a constitutional amendment ratified by 3/4 of states to change the system. It is hard to imagine the smaller states agreeing. One way of modifying the system is to eliminate the winner take all part of it. The method that the states vote for the electoral college is not mandated by the constitution but is decided by the states. Two states do not use the winner take all system, Maine and Nebraska. It would be difficult but not impossible to get other states to change their systems. Unfortunately, the party that has the advantage in the state is unlikely to agree to a unilateral change. There are ongoing attempts to change the system, but few expect them to be successful any time soon.

Updated Janaury 25, 2019

Why Was the Electoral College Created?

In the cacophony of this election season — a year in which speculation about Clinton's emails and headlines about Trump's alleged mistreatment of women have dominated the news cycle — it's easy to forget all about the actual mechanics behind the election, like the role of the Electoral College in determining our next president. But understanding how our president is actually elected is important — especially because this could be an election where the Electoral College makes some headlines of its own.

There's consistent debate over the mere existence of the Electoral College — some people think it functions well and helps keep our democracy running smoothly, while other people think it's a hot mess that should have been eradicated long ago. But for better or worse, the Electoral College is here to stay — so let's look at why it was created in the first place.

The Electoral College goes all the way back to the founding fathers. When they were writing the U.S. Constitution in 1787, they struggled to come up wtih an electoral process. Some of the fathers wanted to do a straight popular vote, but others wanted Congress to select the president without input from the general public.

Some of the fathers also didn't trust that the general public had the necessary knowledge to pick the best possible candidate. William C. Kimberling, Deputy Director of the National Clearinghouse on Election Administration, writes, "Direct election was rejected not because the Framers of the Constitution doubted public intelligence but rather because they feared that without sufficient information about candidates from outside their State, people would naturally vote for a 'favorite son' from their own State or region." It was very hard to travel, or even get information passed, through the colonies, so the founders worried that people would have a hard time getting reliable information about the candidates. They thought that people might just end up voting for the most familiar name from their district, which could result in a majorly split election with no clear winner. They also worried that large states would end up deciding the entire election, and that the votes of small states wouldn't matter.

Additionally, as Marc Schulman wrote for History Central, "They feared a tyrant could manipulate public opinion and come to power." (This idea may sound eerily familiar to you, given many of the things said during this election cycle.)

Their answer was to devise the Electoral College, during a committee working to revise the Virginia Plan, wherein Congress would elect the president. The committee worked from this plan to develop the Electoral College. The College would consist of men (at that point, only white men) who had the knowledge to make an educated decision about who the president should be. Each state would get a certain number of electors based on its population. It was considered a compromise between the popular vote and giving Congress the responsibility of picking the president, as well as a way to keep true to the fathers dreams of a democratic state. In the words of Alexander Hamilton,

However, the most familiar aspect of the Electoral College that we talk about today — the "winner-take-all" system — didn't enter the picture until 1824. In the early years of the Electoral College, states could choose how they divided up their electors and went through several different systems. Technically, states actually still have the right to choose how they allocate their electors (Nebraska and Maine split them depending on how many votes the candidates get), but 1824 is when most states shifted to the "winner-take-all" system.

Why? Since state leaders had the option to choose how they allocated their electors, they decided this was the most effective way to ensure that their preferred candidate was the one who ended up holding office. Once some states decided to go this route, others quickly followed in an effort to show party loyalty.

Some of the common modern distrust of the Electoral College stems from the idea that technically, an elector could go rogue and not cast their ballot for the candidate that the general public in their state voted for. In the early days of the Electoral College, electors were able to cast their ballot however they chose — but today electors are, in some states, legally bound to vote for the candidate who wins the popular vote. Even in states where it's technically legal for an elector to cast their ballot agains the popular vote, it's very rare — since 1824, there have only been 157 cases of a "faithless elector," and 71 of those votes were from a 1872 incident where the Democratic candidate Horace Greeley died between the November election and the casting of the electoral votes.

Despite the strong reasoning behind the history of the Electoral College, it's still one of the most hotly debated institutions of the American democracy. More constitutional amendments have been proposed to alter or eradicate it than on any other topic — over 700. On Tuesday night, we'll have to watch closely to see if the results of the election seem heavily weighted by the existence of the Electoral College and the "winner-take-all" system. Who knows — maybe this will be the year when faithless electors take a stand.


Origins of the Electoral College

The Constitutional Convention considered several possible methods of selecting a president.

One idea was to have the Congress choose the president. This idea was rejected, however, because some felt that making such a choice would be too divisive an issue and leave too many hard feelings in the Congress. Others felt that such a procedure would invite unseemly political bargaining, corruption, and perhaps even interference from foreign powers. Still others felt that such an arrangement would upset the balance of power between the legislative and executive branches of the federal government.

A second idea was to have the State legislatures select the president. This idea, too, was rejected out of fears that a president so beholden to the State legislatures might permit them to erode federal authority and thus undermine the whole idea of a federation.

A third idea was to have the president elected by a direct popular vote. Direct election was rejected not because the Framers of the Constitution doubted public intelligence but rather because they feared that without sufficient information about candidates from outside their State, people would naturally vote for a "favorite son" from their own State or region. At worst, no president would emerge with a popular majority sufficient to govern the whole country. At best, the choice of president would always be decided by the largest, most populous States with little regard for the smaller ones.

Finally, a so-called "Committee of Eleven" in the Constitutional Convention proposed an indirect election of the president through a College of Electors.

The function of the College of Electors in choosing the president can be likened to that in the Roman Catholic Church of the College of Cardinals selecting the Pope. The original idea was for the most knowledgeable and informed individuals from each State to select the president based solely on merit and without regard to State of origin or political party.

The structure of the Electoral College can be traced to the Centurial Assembly system of the Roman Republic. Under that system, the adult male citizens of Rome were divided, according to their wealth, into groups of 100 (called Centuries). Each group of 100 was entitled to cast only one vote either in favor or against proposals submitted to them by the Roman Senate. In the Electoral College system, the States serve as the Centurial groups (though they are not, of course, based on wealth), and the number of votes per State is determined by the size of each State's Congressional delegation. Still, the two systems are similar in design and share many of the same advantages and disadvantages.

The similarities between the Electoral College and classical institutions are not accidental. Many of the Founding Fathers were well schooled in ancient history and its lessons.


The history of the Electoral College and our national conversation about race

As the United States moves toward the 2020 presidential election, the country’s democratic institutions are becoming prominent once again in the national conversation. How we vote, and how fair and secure our electoral system is, can affect outcomes. At a time when racism is also very much on Americans’ minds, we might well ask how we eliminate racial bias in elections.

Historian Alexander Keyssar discusses issues related to race and our electoral system, among many other topics, in his substantial new treatise “Why Do We Still Have the Electoral College?,” published at the end of July. We asked him a few questions about the history of the Electoral College in America and the ways in which it is tied up with questions about race and bias.

Alexander Keyssar is the Matthew W. Stirling, Jr. Professor of History and Social Policy at Harvard Kennedy School.

Q: In your new comprehensive history, you write—among many other things—about race as a factor in conversations about electoral reform over the course of American history. What are some of the broad themes to keep in mind on this topic?

Both during slavery and also after slavery, well into the 20th century in fact, the states of the South stood firmly in opposition to the adoption of a national popular vote. The South was the bulwark of opposition during the period of slavery, of course, because slave-holding states received extra electoral votes thanks to the three-fifths clause. White Southerners, thus, gained added influence in the Electoral College, and if they had switched to a national popular vote, they would have lost that influence. That piece of the history is well known. But we have lost sight of the fact that after the Civil War—and particularly after 1880–1890, when African Americans were driven out of politics in the South through force, and then more or less by law—Southern states were left in possession of what you might call “the five-fifths clause.” That is, African Americans counted 100 percent towards representation in Congress and towards electoral votes, but they still could not vote. That gave white Southerners substantially more influence in presidential elections than they would have had under a national popular vote. There were dramatically fewer votes cast in Southern states than in Northern states during the period, but it didn't affect electoral vote totals, so Southern states became staunch opponents of even considering a national popular vote.

We see this dramatically in 1970, which is when the United States comes closest to replacing the Electoral College with a national popular vote. A constitutional amendment to do so passed the House in 1969, and then it went to the Senate where ultimately it was blocked by a filibuster led by Southern senators. The belief was that the Electoral College helped the white South defend itself against Northern pressures to enlarge civil rights and voting rights.

Q: What is the role of partisanship in debates about the Electoral College?

The role of partisanship has varied a lot over time. On some occasions, party interests (or perceived party interests) figured prominently in the reform debates on other occasions, less so, or not at all. In the 1969-70 episode, for example, a national popular vote had broad bipartisan support. We need to remember that it was the Republican Party that was widely regarded as more sympathetic to the rights of African Americans from the late 19th century into the mid-20th. The Democratic Party was split between its Northern wing, which became increasingly liberal or progressive during the 1930s and beyond, and its Southern wing, which was increasingly conservative, particularly on matters of race. The party breakdowns are not what we, with our 21st century perspective, would expect. In recent decades, since 1980 really, most Electoral College reforms have been supported by Democrats and opposed by Republicans. But there are exceptions even during this period: Republicans in California mounted a strong effort to get rid of winner-take-all and allocate electoral votes by congressional district.

There is one other notable partisan story that relates to race. Many Republicans in the 1870s, during Reconstruction and just after, favored getting rid of the winner-take-all practice, which is not in the Constitution. They favored shifting to a system where electoral votes would be allocated by district or proportionally. There was a lot of support for that in the Republican Party, particularly among people who had been abolitionists. Yet by the 1890s, a mere 15 years later, the Republican Party started taking a completely different stance and opposed any district or proportional scheme for elections.

This was a puzzle that I needed to figure out. The explanation was that between 1875 and 1890, white supremacist regimes returned to power in the South, drove out the Republican Party, disenfranchised African Americans and converted the South, in effect, into a one-party region in which the Democratic Party controlled everything. Faced with that reality, a lot of Republicans, particularly in the Midwestern states, decided they didn't want to go with a district or proportional system. There were a lot of states in the industrial Midwest, and even in more agricultural areas, that were pretty solidly 55/45 Republican versus Democrat. That meant that if they did a proportional distribution of electoral votes, the Republicans would lose 45 percent of the electoral votes in these Northern states. But they would not gain that percentage in the South because the Republican Party had effectively been banished. So, in an indirect way the presence of these white conservative supremacist regimes in the South contributed to the formation of a different obstacle to Electoral College reform. The Republican stance endured into the mid-20th century.

Q: You write about President Jimmy Carter’s suggested reforms and that the African American community was divided on the advantages and disadvantages of potentially replacing the Electoral College with direct elections. Can you talk through the reasons?

Support for Electoral College reform in the years after 1970 remained very strong, and the reform effort was invigorated by the 1976 election. Jimmy Carter won the 1976 election by a narrow margin in the Electoral College (although he clearly won the popular vote), and that kicked up fears again of getting a “wrong” winner. The same liberal forces, more or less, that had promoted a national popular vote in the late 1960s, led by Indiana Senator Birch Bayh, came forward again promoting more or less the same amendment and the same reform. This time around, however, African American politicians and leaders of organizations were divided. One school of thought was led most prominently by John Conyers, who was one of the co-founders of the Congressional Black Caucus and a relatively young member of Congress at that point. Conyers and Louis Stokes, and other leaders—John Lewis, notably—absolutely believed that the country should switch to a national popular vote. The principle was that every vote should count equally. There was, however, another perspective held by leaders of some organizations—Vernon Jordan most prominently among them—who believed that African Americans were key swing voters in key Northern states—and thus that they could determine the outcome of a presidential election. As a result, they believed that African American voters would have to be courted under the Electoral College. For example, to try to get all of Ohio's electoral votes, you had to bring out the 12 to 15 percent of the population that was African American. So the view was that because African Americans were key swing voters who could determine the outcome of an election, they had leverage that they would surrender if there was a national popular vote.

In retrospect, the view that African Americans were swing voters who could tip an election was overly grounded in what had happened in 1976, when that was almost certainly true. But it has not been an enduring pattern. Eventually, the Black leaders and organizations that had supported the Electoral College changed their view and endorsed the national popular vote.

Q: What are the lessons we should take away from this when thinking about race and the Electoral College?

One thing we should take away from history is how pervasive the role of race has been in American history and American politics. Even an area which you might think would be quite remote, like Electoral College reform, is affected by matters of racial and regional politics. That's one takeaway that I think is important. We have to keep understanding the ramifications of racial discrimination as we've been doing in this revived national conversation.

A second point is somewhat more specific to the Electoral College. We should recognize that, through the way the Electoral College is structured, a state wields influence in an election in proportion to its population, not in proportion to its voters or the number of people who turn out to vote. What this means is that in a state where there is, for example, a dominant or semi-dominant party which can reliably count on winning 55 or 58 percent of the vote, that party is not going to be interested in getting rid of winner-take-all or adopting a national popular vote, or any other reform, because they benefit in a partisan fashion from winner-take-all. This also means, disturbingly, that the structure can create incentives for voter suppression. If, say, Texas or Mississippi—or Georgia to take a more recent example—suppresses a percentage of the African American vote, that state does not lose any influence because the vote total is lower. You still have the same number of electoral votes, and thanks to winner-take-all there is a lot at stake. The incentives for suppression are enhanced by the structure of the Electoral College.

Q: Is there anything I haven’t asked you about this topic that is important for us to know?

In the process of writing the book, one of the conclusions I reached was that the conventional wisdom that the small states had blocked electoral reform forever and ever was simply not true. A closer approximation to the truth—although it doesn’t by any means capture the whole story—is that, for much of our history, Southern states interested in maintaining segregation and white dominance have blocked reform.


The Good, the Bad, and the Ugly about The Electoral College

A history professor shares his insights on the governmental institution that has increasingly become the deciding factor in American presidential races.

The 2020 presidential election is fast approaching, which means it’s the perfect time for a refresher on the governmental institution that has increasingly become the deciding factor in American presidential races: the Electoral College. We asked Chris DeRosa, Ph.D., chair of the Department of History and Anthropology, to share his insights on the institution.

THE PURPOSE

The original plan called for each elector to cast two votes for president. Whoever received a majority of votes from electors became president the runner-up became vice president.

States can do what they want with their electoral votes, says DeRosa. Most give them to the candidate who wins a state majority. An elector who defies that assignment is called a faithless elector, and the state has the choice whether to tolerate them. “You don’t get them very often because they’re chosen as party loyalists, and we’ve never had faithless electors swing an election,” says DeRosa.

THE GOOD

One of the advantages is the end result is clear: “Somebody wins somebody gets a majority of the electoral votes,” says DeRosa. If presidents were elected purely by popular vote, a candidate could win the presidency with less than 50% of the vote. “If you had more than two parties contending for the presidency, you might have somebody winning with 30% of the votes, and that’s a ticket to an extremist candidate.”

THE BAD

The first problem with the Electoral College is that it gives more weight to voters in small states than those in more populous ones, says DeRosa. Every state gets a minimum of three electoral votes. However, each state’s total allotment is based on its representation in the Senate (always two people) and the House (varies by population). “So take Washington, D.C., as an example,” says DeRosa. “More people live in D.C. than in Wyoming, the least populous state in the union but they both get three electoral votes.” (Plus, unlike Wyoming, D.C. gets no voting representation in Congress.)

THE UGLY

The biggest problem with the Electoral College is that it encourages vote suppression, says DeRosa. Southern states always had an advantage in the population count, because they got electoral votes appointed on the basis of their slave populations and their white populations. That gave the states extra representation for people they weren’t really representing at all.

After the Civil War, former slaves were counted as “whole” persons, not three-fifths of one, for purposes of electoral vote allotment. But Black voter suppression still took place through Jim Crow laws. This further “inflated the electoral count of people who were not representing all the people in their state,” says DeRosa. “So the Electoral College became a pillar of white supremacy.”

THE FUTURE

Love it or hate it, the Electoral College is here to stay because changing it would require “constitutional surgery,” says DeRosa. “You would need three-fourths of the states to ratify any change, and too many states that are intent on suppressing votes benefit from the Electoral College.” The downside? “If you never have to appeal to the electorate because you’re successfully suppressing some large part of it, then you have a broken system.”


How the Electoral College Became Winner-Take-All

The election of 1824 is most famous for the "corrupt bargain," a deal in the House of Representatives that gave John Quincy Adams the presidency despite his winning fewer popular and electoral votes than Andrew Jackson. But 1824 was also significant for another reason: it was the first election in which the majority of states used a statewide winner-take-all voting method for choosing their presidential electors.

It is a system that now seems like a fundamental part of the American democracy. Presidential candidates compete to win states, which is how they get votes in the Electoral College. The U.S. Constitution does not mandate that system, however. Instead, it is left up to the states to determine how they select their representatives in the Electoral College. For the first 13 presidential elections, spanning the first four decades of the history of the United States, states experimented with many different electoral systems.

The shift to statewide winner-take-all was not done for idealistic reasons. Rather, it was the product of partisan pragmatism, as state leaders wanted to maximize support for their preferred candidate. Once some states made this calculation, others had to follow, to avoid hurting their side. James Madison's 1823 letter to George Hay, described in my earlier post, explains that few of the constitutional framers anticipated electors being chosen based on winner-take-all rules.

The graph below charts the use of each major method of choosing presidential electors during this formative period. An explanation of each system and a timeline of important developments in presidential elections follows.

At first, state legislatures dominated as the electoral method of choice. Between 1804 and 1820, both statewide and state legislature systems were commonly used, with a small but steady number of states using district-based methods. After 1824, states quickly began conforming to the norm of statewide selection of electors. (Data from pg. 18 of of Delaware's 1966 lawsuit challenging the constitutionality of the "state unit-vote" system.)

Methods of Choosing Electors:

State Legislature: The legislature of each state chose the presidential electors of the state, giving the people at large no direct vote in presidential elections.

Districts: States were divided into districts, either using pre-existing congressional districts or creating new districts specifically for the presidential election. Voters elected one or multiple electors from their district.

Statewide: The current most common system--voters in a state vote for candidates, and all of that state's electoral votes are cast by electors nominated by the candidate with the most statewide votes.

Hybrid: Some states used a combination of these methods, allocating some electors through the state legislature, some from districts, and/or some from a statewide general ticket. Nebraska and Maine currently use a hybrid of the district and statewide methods.

Other: Various alternate systems were experimented with, including electors from each county choosing the state's electors and runoff elections.

1789: George Washington is the overwhelmingly popular choice to become the first president just three states allocate electors based on the winner of the statewide popular vote.

1792: State legislatures emerge as the preferred method of selecting presidential electors. George Mason of Virginia defended this method at the Constitutional Convention by arguing that "It would be as unnatural to refer the choice of a proper character for a chief Magistrate to the people, as it would to refer a trial of colors to a blind man."

1800: Virginia, the state with the most electoral votes, switches to a statewide popular vote system. Winning candidate Thomas Jefferson said of the switch in his home state: "All agree that an election by districts would be best, if it could be general but while 10 states choose either by their legislatures or by a general ticket, it is folly & worse than folly for the other 6 not to do it." Indeed, Jefferson would have won the 1796 election if two of his strongholds had used winner-take-all. Not wanting to lose an advantage to Virginia, Massachusetts switches to a state legislature system in response, to ensure that all its electoral votes would go to John Adams.

1804: The 12 th amendment is ratified, requiring electors to cast a single vote for a presidential ticket rather than casting two votes for their two preferred candidates, with the top finisher becoming president and the runner-up becoming vice-president. The number of states using statewide and state legislature systems is equal for the first time.

1812: The number of states using statewide models decreases and the number using state legislature systems increases, suggesting that the latter might ultimately win out. A substantial number of states continue to use a district-based model.

1820: An equal number of states use statewide and state legislature methods for the second time. This is the last election in which state legislatures played a dominant role. By this point, political parties have become entrenched and the electors of the Electoral College can no longer realistically claim to be independent. After the election, James Madison proposes a constitutional amendment that would require states to use the district method, writing that "The district mode was mostly, if not exclusively in view when the Constitution was framed and adopted & was exchanged for the general ticket & the legislative election, as the only expedient for baffling the policy of the particular States which had set the example."

1824: The tipping point election for presidential electoral systems, as twice as many states used the winner-take-all statewide method as used the state legislature method. The defeated Andrew Jackson joined James Madison's pleas for a constitutional amendment requiring a uniform district election system, but to no avail. In every U.S. presidential election since, the statewide method has been predominant.

1836: All but one state, South Carolina, uses the winner-take-all method based on the statewide popular vote to choose its electors. South Carolina continues to have its legislature choose electors until after the Civil War.

1872: For the first time, every state holds a popular vote election for president, and all use the statewide winner-take-all rule. In 1876, Colorado is the last state to have its legislature choose its electors.


Unpledged and faithless electors

There has also been controversy over the electors themselves. In some elections, state parties have selected unpledged electors—electors who can vote for any candidate regardless of party affiliation. This practice was primarily used in the mid-20 th century in Southern states whose conservative Democratic Party members wanted to express their displeasure with national party platforms that challenged segregation.

However, the only time these unpledged electors have been elected to the Electoral College was in 1960, when 15 unpledged Democratic electors from Mississippi and Alabama cast votes for Southern Democrat Harry Byrd instead of John F. Kennedy, the national Democratic candidate who ultimately won the election. The practice died out after the 1960s, when conservative Southerners moved their loyalties to the Republican Party.

But most electors do promise to vote a certain way in the Electoral College—and when they go against those pledges, they earn the moniker “faithless.” Thirty-two states and the District of Columbia have laws that require electors to abide by their pledges. Still, there were seven faithless electoral votes cast in 20th century elections, and another seven in the contentious 2016 election alone. During that contest, five electors pledged to Democratic contender Hillary Clinton and two pledged to Republican Donald Trump successfully switched their vote to candidates who were not in the race, such as former Democratic presidential candidate Bernie Sanders and moderate Republicans John Kasich and Colin Powell. In 2000, one elector from the District of Columbia cast a blank ballot in protest of the capital city’s lack of Congressional voting status. However, no election has ever been determined by a faithless elector.

In July 2020, the U.S. Supreme Court ruled that states can enforce electors’ pledges by penalizing rogue electors or removing them from the slate—to the dismay of Electoral College opponents, who had hoped a Supreme Court ruling affirming electors’ rights to vote as they wish would have thrown future elections into chaos and galvanized a national movement to eliminate the Electoral College.


Ways to abolish the Electoral College

The U.S. Constitution created the Electoral College but did not spell out how the votes get awarded to presidential candidates. That vagueness has allowed some states such as Maine and Nebraska to reject “winner-take-all” at the state level and instead allocate votes at the congressional district level. However, the Constitution’s lack of specificity also presents the opportunity that states could allocate their Electoral College votes through some other means.

One such mechanism that a number of states already support is an interstate pact that honors the national popular vote. Since 2008, 15 states and the District of Columbia have passed laws to adopt the National Popular Vote Interstate Compact (NPVIC), which is an multi-state agreement to commit electors to vote for candidates who win the nationwide popular vote, even if that candidate loses the popular vote within their state. The NPVIC would become effective only if states ratify it to reach an electoral majority of 270 votes.

Right now, the NPVIC is well short of that goal and would require an additional 74 electoral votes to take effect. It also faces some particular challenges. First, it is unclear how voters would respond if their state electors collectively vote against the popular vote of their state. Second, there are no binding legal repercussions if a state elector decides to defect from the national popular vote. Third, given the Tenth Circuit decision in the Baca v. Hickenlooper case described above, the NPVIC is almost certain to face constitutional challenges should it ever gain enough electoral votes to go into effect.

A more permanent solution would be to amend the Constitution itself. That is a laborious process and a constitutional amendment to abolish the Electoral College would require significant consensus—at least two-thirds affirmation from both the House and Senate, and approval from at least 38 out of 50 states. But Congress has nearly reached this threshold in the past. Congress nearly eradicated the Electoral College in 1934, falling just two Senate votes short of passage.

However, the conversation did not end after the unsuccessful vote, legislators have continued to debate ending or reforming the Electoral College since. In 1979, another Senate vote to establish a direct popular vote failed, this time by just three votes. Nonetheless, conversation continued: the 95th Congress proposed a total of 41 relevant amendments in 1977 and 1978, and the 116th Congress has already introduced three amendments to end the Electoral College. In total, over the last two centuries, there have been over 700 proposals to either eradicate or seriously modify the Electoral College. It is time to move ahead with abolishing the Electoral College before its clear failures undermine public confidence in American democracy, distort the popular will, and create a genuine constitutional crisis.


Procedure

  • With the ratification of the Twentieth Amendment to the Constitution (and starting with the 75th Congress in 1937), the electoral votes are counted before the newly sworn-in Congress, elected the previous November.
  • The date of the count was changed in 1957, 1985, 1989, 1997, 2009, and 2013. Sitting Vice Presidents John C. Breckinridge (1861), Richard Nixon (1961), and Al Gore (2001) all announced that they had lost their own bid for the Presidency.

Why the Electoral College - History

What is the Electoral College?

At first you may think that the Electoral College is a school somewhere where people learn about politics, but that isn't the case. The Electoral College isn't even a place, it's the process that elects the president of the United States.

Don't the citizens of the U.S. elect the president?

Well, not directly. When people vote for president they are really voting for an elector from their state. Each state has a certain number of electors. These electors then vote for president.

How many electors does each state get?

Each state gets an elector for each member of Congress from that state. That is one for each member from the state in the House of Representatives (which is based on the population of the state) and two more for the state's two senators. For example, California gets 55 electors, North Carolina 15, and Wyoming 3.

How do states choose their electors?

Each state has its own rules on how electors are chosen. Usually, the political party of the presidential candidate who won the state chooses the electors.

Who can be an elector?

Pretty much anyone who can vote can be an elector. The only people prevented from being electors are certain political leaders like Senators and Representatives. Most electors are people who have been loyal and dedicated members of their political party for a long time.

Do electors have to vote a certain way?

This depends on the state. In some states there are laws requiring that electors vote the same as the people who voted for them. Most of the time electors vote as expected, but in rare cases they have changed their vote and voted for a different candidate than the people who voted for them.

In most states all the electors are awarded to one president. Even if one candidate won by a single popular vote, they would get all the electoral votes. So it is possible that one popular vote in California could make the difference of 55 electoral votes. There are two states, Maine and Nebraska, that split up the electors between the candidates.

Pros and Cons of the Electoral College

Today, many people think that the Electoral College should be abolished and that the total popular vote should determine the president. Here are some of the arguments for and against the Electoral College:


Why the Electoral College is so Important

With another presidential election having passed, many of my friends and acquaintances are once again calling for an end to the electoral college. As I do after every presidential election, I find myself explaining why America’s Founding Fathers implemented this particular electoral system and why it is a much better choice – and, by far, a fairer choice – than using the popular vote. To my dismay, I have found that most people aren’t aware of the “why’s” and “what’s” when it comes to the Electoral College because it isn’t being taught in the majority of high schools and colleges throughout the United States. So, I thought it would be a good idea to help fill-in where the education system has failed.

What is the Electoral College and Why Do We Have It?

During the Constitutional Convention in 1787, America’s Founders debated for months about how to elect a president with some arguing that Congress should pick one and others adamant that this decision should be made by democratic popular vote. Both camps had valid concerns about each other’s wishes. Specifically, one group feared that having Congress choose the president would result in backroom deals being struck between the legislators and those who were running for the highest office in the land. The other group had three legitimate concerns about allowing the citizens to elect the president by direct popular vote: 1) they didn’t believe voters in the 18th century had the resources to be fully informed on the candidates 2) they were concerned that undue influence from a “democratic mob” could force voters to vote a certain way and 3) they believed that a populist president could command dangerous power.

In the end, our Founding Fathers came up with a compromise that is unique to our beloved nation – the Electoral College. Under this compromise, a certain number of electoral votes are allocated to each state based on its representation in the House and Senate. Pretty simple, right? One of the biggest advantages to using this method is that it provides a more equal voice for both small and large states in the election of the president – since every state has two Senators no matter the size of its population. If the Electoral College were abolished, presidential candidates would be incentivized to focus most of their efforts in states like Florida or Texas, leaving smaller states like Iowa and Delaware left out in the cold.

In other words, without the balancing effect of the electoral college, a few densely populated urban areas across the country would be determining the outcome of a presidential election for all of us. Consequently, if the electoral college is abolished or a change is made to the way electoral votes are distributed, then the wishes of rural Americans and will effectively no longer be considered. Moreover, the desire of America’s Founders to ensure the voices of all Americans and the interests of every state remain equally important would be circumvented.

Why Is It Important to Keep the Electoral College?

Aside from the fact that there are valid and practical reasons for the Electoral College system, there are other pragmatic reasons for maintaining the status quo. First of all, if we had a pure popular vote system, as many on the Left are now proposing, it would become quite difficult—because of third-party (and more) candidates—to ensure that any candidate would win a popular majority. For example, in the election of President Clinton in 1992, Clinton received a majority of electoral votes and was elected president. However, he only received a plurality – 43 percent – of the popular vote, and Ross Perot, a third-party candidate, received almost 19 percent. President Clinton did not win a majority of the popular vote in the 1996 election either, but because he won an Electoral College majority, he was elected President of the United States both times.

This raises the question: What would happen if we did away with the Electoral College and instead implemented a system whereby a person could win the presidency with a plurality of the popular vote? If this were to occur, every special interest group would have their own candidate, and the field of candidates would be enormous. Thus, EVERY election year would be utter chaos.

How could the Electoral College be undone by its opponents?

One way to get rid of the Electoral College system – but certainly not the easiest – is with a Constitutional amendment that’s ratified by 3/4 of states (38 of 50). Of course, it’s hard to imagine that smaller states would agree to this. The Constitution provides that an amendment may be proposed by the Congress with a 2/3 majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by 2/3 of the State legislatures.

History shows that it is certainly possible to change the method of electing a president -- we need only look at the Twelfth Amendment (1804), which mandated that electors vote separately for president and vice president the Fourteenth Amendment (1868), which barred unpardoned rebels from becoming electors and requiring that states allow all of their male citizens over 21 years old to vote for electors the Twenty-Third Amendment, which expanded the Electoral College to give the District of Columbia three electors in 1961 and the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments which expanded the right to vote generally, including in presidential elections.

The other way to change how America elects a president is to shift to a National Popular Vote based system where states agree to give their electoral votes to the candidate who wins the national popular vote, regardless of whether that person won the majority in each individual state. At present, 15 states and the District of Columbia have adopted the National Popular Vote Interstate Compact (NPVIC), an agreement that would award the electoral votes of all participating states within the compact to the candidate who won the national popular vote. These states, plus D.C., have 196 of the 270 electoral votes needed to give the NPVIC legal force, at least according to its terms.

It bears noting that earlier this year Virginia’s House of Delegates tried to pass legislation to adopt the NPVIC and award the Commonwealth’s electoral votes to the winner of the national popular vote. While the bill didn’t pass, Senator Adam Ebbin (D-Alexandria) has reintroduced the same bill (SB 1101) again for the upcoming 2021 regular legislative session, where Democrats hold the majority in both chambers.

With that said, even if enough states were to pass the NVPIC, and the necessary 270 electoral votes were required to implement the compact, it would surely be challenged in court because it appears to be a clear violation of the Compact Clause in Article I of the U.S. Constitution. It holds, in relevant part, that “[n]o State shall, without the Consent of Congress … enter into any Agreement or Compact with another State.” In other words, to be valid, this Compact must have the consent of Congress. In fact, several legal experts have argued that while the U.S. Supreme Court has concluded that the Compact Clause does not require Congress to consent to compacts that affect only the internal affairs of the compacting states, it has indicated in U.S. Steel Corporation v. Multistate Tax Commission that the Compact Clause requires Congress to consent to an agreement that “would enhance the political power of the member States in a way that encroaches upon the supremacy of the United States,” or “impairs the sovereign rights of non-member states.” Clearly, if this compact had the effect of nullifying the U.S. Constitution’s provisions for selecting the president, then it would be encroaching upon the supremacy of the United States. It would also involve more than merely the internal affairs of the states since it would interfere with the federalist structure of the U.S. Constitution’s method of electing a president.

The NPVIC is also in violation of Compact Clause since it would interfere with the interests of states that did not sign on to the compact by depriving such states of their ability to help determine the outcome of a presidential election on the basis of electoral votes cast individually by the states rather than collectively based upon a national popular vote. Since this would constitute a virtual elimination of the Electoral College, non-compacting states would be denied their right to otherwise participate in a constitutional amendment process to determine whether the nation should make such an important change in its method of selecting the president.

Without a doubt, this election cycle has been one of the craziest in modern times – even surpassing the “hanging chad” debacle of 2000. However, just because this election cycle has been “different” doesn’t mean the system needs to be changed – don’t throw the baby out with the bathwater as my mother always said. The Electoral College is working exactly as the Founders intended – to ensure a president is elected by a diverse group of voters from every individual state across the United States.

Just because one side or the other doesn’t approve of the outcome doesn’t mean the Electoral College system isn’t working. We must continue to see the wisdom of our Founding Fathers, in the system of government they created, in the Constitution, and in the principles upon which this great nation was shaped.