Chapter 51: The Electoral College

“The graveyard of constitutional amendments altering the electoral college is the Senate—which, as we have seen, is the citadel of unequal representation.” 

—Robert Dahl (1)

Why Do We Have an Electoral College?

The Electoral College is probably the least understood aspect of American government. As originally conceived at the Constitutional Convention, the Electoral College was to be an esteemed body of men chosen according to state law who would cast votes for the president and vice president. In Federalist #68, Alexander Hamilton wrote that the presidency “will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications,” because the distinguished electors from each state “possess the information and discernment requisite to such complicated investigations.” However, almost from the beginning the Electoral College has not worked like Hamilton envisioned. The electors rather quickly devolved into what Jesse Wegman describes as “obedient partisan hacks, rubber stamps for their party’s candidate.” (2)

The Electoral College appears to have been a solution to two main concerns—the concern that the general population would be ill suited to cast votes for president, and the concern over sectionalism. Historian Jill Lepore reminds us that during the Constitutional Convention, a motion to allow U.S. citizens to directly elect the president was defeated by a vote of twelve states to one. Lepore writes, “That the people, even given limited suffrage, would elect the president directly was almost inconceivable. Congress electing the president, however, violated the separation of powers. The Electoral College, proposed after the defeat of the direct-election motion, was an ill-begotten compromise.” (3) To be fair, not all the Founders felt this way. James Wilson of Pennsylvania, for example, placed a great deal of faith in the common man and envisioned the broader democracy to which America would later aspire. As recorded by James Madison in his Notes of the Debates in the Federal Convention of 1787, James Wilson said that “if we are to establish a national government, that government ought to flow from the people at large,” and that “the majority of the people, wherever found, ought in all questions to govern the minority.”

Political scientist Thomas Schaller illustrates the sectionalism concerns, writing that the founders “expected such a glut of sectional parties that they created the Electoral College—not in order to make any kind of final selection but simply to winnow the choices down to a couple of finalists. They assumed the election would be thrown into the House of Representatives, with the result that an elite institution would pick the ultimate winner.”(4) Initially, state legislatures chose the electors, but by the 1820s, most states left selecting the electors up to the voters, and South Carolina became the last state to do so in 1864.

The Electoral College is a classic example of a political kludge–an improvised, crudely designed solution to an immediate problem. For as smart as they were–and despite their individual and collective faults, they were a impressive gathering of men of their time and place–the Founders were clearly stymied when it came to designing a rational way to select the president. James Wilson called for a popular vote for president, and was supported by fellow Pennsylvanian Gouverneur Morris, but that idea was shot down for various reasons: distrust by some delegates for the common man, the inability for ordinary people in that day to be informed about national candidates, or the fear that it would empower the more populous states. The issue was referred to a subset of the delegates known as the Committee on Unfinished Parts, which came back with the idea of respectable electors from each state voting for president. The number of electors afforded each state would reflect the compromises already reached in allocating senators and representatives–with each state getting electors to equal the number of representatives and senators it had. In the very first presidential election, George Washington received unanimous support from the electors, and no official popular vote was tallied. (5)

How the Electoral College Works

Let’s talk about how the Electoral College works. But first, some key terminology. When we refer to the Electoral College vote, we’re referring to the votes of the electors who actually vote for president and vice president. When we refer to the popular vote, we’re referring to ordinary citizens like you and me who cast our ballots in November for electors pledged to vote for president and vice president. The Electoral College works like this:

• Each state has the same number of electors that it has U.S. representatives and U.S. senators. But keep in mind that the electors are not the U.S. representatives and senators. Since Utah has four representatives and two senators, Utah has six electors. Wyoming has three electors because it has one representative and two senators. The four largest elector sources are California (54), Texas (40), Florida (30), and New York (28). The District of Columbia, even though it is not a state, is allotted three electors. The Electoral College has a total of 538 electors.
• Sometime prior to the November election, each party with a presidential candidate on the ballot will select a slate of electors who are pledged to vote for that party’s nominee. To use Utah as an example, in 2020, the Republicans picked six Republican party members pledged to Donald Trump and his running mate; the Democrats picked six Democratic party members pledged to Joe Biden and his running mate; the Green Party picked six party members committed to Howie Hawkins and his running mate…and so on. The Supreme Court has ruled that electors can be bound by their states to vote for their party’s nominees, thus eliminating the “faithless elector” problem. In Colorado Department of State v. Micheal Baca, et al (2020) and Chiafalo, et al v. Washington (2020), the Supreme Court ruled 9-0 that states can hold electors to their vote pledges.
• On election night in November, we go to the polls and cast our votes. This is where it gets confusing, since most Americans think they are voting directly for president. Technically, we are voting for one of those slates of electors, rather than for the candidate for president. In every state except Maine and Nebraska, electors are awarded according to a unit rule, meaning that the candidate whose slate has the most popular votes—even if it is not a majority—gets all of the electors. The unit rule means that in forty-eight states, the Electoral College is a winner-takes-all situation. The winning candidate could have gotten a majority of the popular vote in the state–i.e., 50 percent or more of the popular vote—or the winning candidate could have gotten a plurality of the popular vote, meaning that they received the most votes, even if it is well short of receiving 50 percent of the popular vote. All a candidate needs is one more popular vote that their opponent in most states to win all of that state’s electors.
• On the first Monday after the second Wednesday in December, the winning slates of electors gather at their state capitals and cast their votes for president and vice president. These votes are sent to the Senate, where they are counted and certified before a joint congressional session in January. That is the official vote for president.
• A candidate needs 270 or more of the Electoral College votes to win, which is a simple majority. If no candidate gets a majority—which hasn’t happened since 1824—then the election is pushed into Congress. The House of Representatives, with each state delegation getting one vote, elects the president, and the Senate elects the vice president.
  

What’s Wrong with the Electoral College?

The Electoral College is a vestige of an eighteenth century, slave-holding America in which ordinary people were not fully trusted with political sovereignty. It is fundamentally undemocratic. If you look around the world, the Electoral College is not a constitutional feature that other democratic countries have adopted. We can focus our attention on two main deficiencies of the Electoral College.

The Achilles heel of the Electoral College was revealed for modern generations to see during the 2000 presidential race between George Bush and Al Gore and the 2016 race between Donald Trump and Hillary Clinton. The popular vote for president does not determine who goes to the White House; the elector’s votes are decisive. Normally, the Electoral College vote mirrors the popular vote. However, the elections of 1824, 1876, 1888, 2000, and 2016 resulted in the eventual “winner” actually receiving fewer votes from American voters. In 2000 Al Gore received roughly 537,000 more popular votes across the country than did George W. Bush, but Bush won the disputed state of Florida when the Supreme Court stepped in to halt manual recounts. Florida’s electoral votes gave Bush a total of 271—just enough to win. The imbalance was even more noticeable in 2016, when Hillary Clinton won the popular vote by nearly 2,865,000 votes but Donald Trump won the Electoral College vote 304 to 227.

The winner-takes-all aspect of the Electoral College also tends to distort our perceptions of the American electorate. It pushes us to talk about red-state voters versus blue-state voters, which is obviously an oversimplification of the partisan divide in the United States. The Electoral College is biased in favor of smaller, more rural states, because they are entitled to proportionally more electors than they would have in a straight popular vote. For example, a voter in Wyoming has nearly four times the weight of a voter in California when it comes to the Electoral College. (6) This reflects the Connecticut Compromise between large and small states at the Constitutional Convention. (7)

The Electoral College forces presidential campaigns to focus on swing states, which are states that are narrowly balanced between Republicans and Democrats, so they could go either way. Swing states are competitive states, so they are also referred to as battleground states. The winner-takes-all principle means that it is smart for presidential campaigns to devote considerable resources to getting every possible popular vote in those states, because even a slim victory results in winning all of that state’s electors. In 2016, Clinton racked up significant popular vote majorities in solid Democratic states like California, but narrowly lost popular votes—and therefore all of the electors that went with them—in a number of swing states like Michigan, Wisconsin, and Pennsylvania. In 2020, Democratic candidate Joe Biden racked up 7 million more popular votes nationwide than did Republican Donald Trump, but the Electoral College could have overturned the popular vote if just 45,000 people in Georgia, Wisconsin, and Arizona had voted for Trump instead of Biden. (8)

The second key problem of the Electoral College is its susceptibility to political manipulation at both the state and federal levels. Federal law requires states to deliver a certified slate of electors to Congress. However, any number of political maneuvers by the state election board, the governor, or the state legislature could cast doubt on the legitimacy of the slate of electors submitted by a given state. Indeed, different entities in a state could send their own slates of electors, each claiming that theirs was the only legitimate one. The 1876 election saw the most prominent example of this when South Carolina, Louisiana, and Florida all sent competing slates of electors. This dispute was resolved in the famous “Corrupt Bargain” of 1877 that allowed the Republican Rutherford Hayes to ascend to the presidency while Southern Democrats were empowered to end Reconstruction—which is why many people also call this the “Great Betrayal” of newly freed African Americans in the South.

Responding to the 1876 election, Congress passed the Electoral Count Act of 1887, which was amended in 1948. This law governs how Congress should deal with Electoral College controversies, but it is widely considered to be inadequate to the task. Indeed, it is clear now that once the Trump campaign realized that it had legitimately lost both the popular and Electoral College vote in 2020, it attempted to exploit weaknesses in the system. Specifically, the Trump campaign attempted to get local Republicans to gin up false controversies in competitive states. Fortunately, those local Republicans refused to do so. (9) Then Trump’s lawyer wrote a memo laying out a plan where on January 6, 2021, when he presided over the Congressional session dedicated to counting the electoral votes, Vice President Pence would simply announce that electors from seven states were in dispute. Because of the “disputed electors” in those seven states, Pence would then claim that Donald Trump received the majority of the remaining electors and Pence would declare that Trump was reelected. Even if he could not get away with that scheme, went the memo, then the “disputed” election for President would be thrown to the House of Representatives, where the Republicans held more state delegations than did the Democrats. (10) Vice President Pence refused to steal the election, and Trump attacked his own Vice President on Twitter and refused to call off the crowd that he and others had stoked and aimed at Congress on January 6, 2021. That is the reason why Vice President Pence had to cower in a loading dock on that day while members of Trump’s mob ransacked the Capitol and threatened to hang him. (11) In response to Trump’s attempt to exploit weaknesses in the Electoral College process, Congress passed the Electoral Count Reform Act of 2022. This law clarified several points:

• The vice president’s role is solely to open and count the votes and the vice president cannot solely adjudicate disputed slates of electors.
• Raised the threshold in Congress for objecting to the validity of a state’s slate of electors. Whereas previously such an objection only needed one representative and one senator, now it requires one-fifth of the members of the House and the Senate.
• Identifies governors as the state official responsible for submitting the certificate of ascertainment for the state’s electors unless the state constitution specifies otherwise.
• Established a speedy process for judicial review of the validity of a state’s electors if they are challenged.

What If . . . ?

What if we replaced the Electoral College with a different way of selecting the president? We could pass a constitutional amendment that abolished the Electoral College and replace it with a direct popular vote, perhaps with a run-off of the top two candidates in case the first round did not produce a winner who had received a majority of the popular vote. The problem, as referenced by Robert Dahl in this chapter’s opening quote, is that such an amendment would need to pass the U.S. Senate with a two-thirds vote, and senators from small states would not want to diminish the power of their states by moving to a direct popular vote for president. It would be the right thing to do if one were interested in democracy—and perhaps this new generation of politicians will step up—but it is still unlikely.

Another possibility takes the form of the National Popular Vote movement, which began in 2006. (12) This approach would preserve the Electoral College and would not require a constitutional amendment. It is a state-based approach based on a compact or agreement. Since state legislatures are empowered by the Constitution to allocate electors, the National Popular Vote Compact would enlist sufficient states to agree to allocate their electors to the national popular vote winner regardless of the results in individual states. Thus, if candidate A wins the popular vote in Illinois—one of the states that has already signed on to the National Popular Vote Compact—but candidate B wins the national popular vote, the twenty electors from Illinois would be allocated to candidate B. The idea is to get enough states to sign on to the compact to guarantee that the winner of the national popular vote would also win at least 270 Electoral College votes. The Compact would only go into effect when jurisdictions—states and the District of Columbia—representing at least 270 electors sign on. What do you think of this proposal?

Here’s the text of the National Popular Vote Bill.

Article I—Membership

Any State of the United States and the District of Columbia may become a member of this agreement by enacting this agreement.

Article II—Right of the People in Member States to Vote for President and Vice President

Each member state shall conduct a statewide popular election for President and Vice President of the United States.

Article III—Manner of Appointing Presidential Electors in Member States

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a “national popular vote total” for each presidential slate.

The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.”

The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.

At least six days before the day fixed by law for the meeting and voting by the presidential electors, each member state shall make a final determination of the number of popular votes cast in the state for each presidential slate and shall communicate an official statement of such determination within 24 hours to the chief election official of each other member state.

The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress.

In event of a tie for the national popular vote winner, the presidential elector certifying official of each member state shall certify the appointment of the elector slate nominated in association with the presidential slate receiving the largest number of popular votes within that official’s own state.

If, for any reason, the number of presidential electors nominated in a member state in association with the national popular vote winner is less than or greater than that state’s number of electoral votes, the presidential candidate on the presidential slate that has been designated as the national popular vote winner shall have the power to nominate the presidential electors for that state and that state’s presidential elector certifying official shall certify the appointment of such nominees.

The chief election official of each member state shall immediately release to the public all vote counts or statements of votes as they are determined or obtained.

This article shall govern the appointment of presidential electors in each member state in any year in which this agreement is, on July 20, in effect in states cumulatively possessing a majority of the electoral votes.

Article IV—Other Provisions

This agreement shall take effect when states cumulatively possessing a majority of the electoral votes have enacted this agreement in substantially the same form and the enactments by such states have taken effect in each state.

Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.

The chief executive of each member state shall promptly notify the chief executive of all other states of when this agreement has been enacted and has taken effect in that official’s state, when the state has withdrawn from this agreement, and when this agreement takes effect generally.

This agreement shall terminate if the electoral college is abolished.

If any provision of this agreement is held invalid, the remaining provisions shall not be affected.

Article V—Definitions

For purposes of this agreement,

“chief executive” shall mean the Governor of a State of the United States or the Mayor of the District of Columbia;

“elector slate” shall mean a slate of candidates who have been nominated in a state for the position of presidential elector in association with a presidential slate;

“chief election official” shall mean the state official or body that is authorized to certify the total number of popular votes for each presidential slate;

“presidential elector” shall mean an elector for President and Vice President of the United States;

“presidential elector certifying official” shall mean the state official or body that is authorized to certify the appointment of the state’s presidential electors;

“presidential slate” shall mean a slate of two persons, the first of whom has been nominated as a candidate for President of the United States and the second of whom has been nominated as a candidate for Vice President of the United States, or any legal successors to such persons, regardless of whether both names appear on the ballot presented to the voter in a particular state;

“state” shall mean a State of the United States and the District of Columbia; and

“statewide popular election” shall mean a general election in which votes are cast for presidential slates by individual voters and counted on a statewide basis.

References

1. Robert A. Dahl, How Democratic is the American Constitution? Second edition. New Haven: Yale University Press, 2003. Page 87.
2. Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College. New York: St. Martin’s Griffin, 2020. Page 5.
3. Jill Lepore, The Story of America: Essays on Origins. Princeton: Princeton University Press, 2012. Page 244.
4. Thomas Schaller in a panel discussion “High Noon for the Republican Party,” Harper’s Magazine. July 2008. Page 14.
5. Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College. New York: St. Mrtin’s Griffin, 2020. Page 79.
6. There are around 200,000 voters in Wyoming per elector, and around 720,000 voters in California per elector.
7. Andrew E. Busch, “The Development and Democratization of the Electoral College,” in Gary L. Gregg, II, ed., Securing Democracy. Why We Have an Electoral College. Wilmington, DE: ISI Books, 2001. Pages 27-42.
8. Russell Berman, “The Secret to Beating the Electoral College,” The Atlantic. December 9, 2020.
9. Bob Christie and Nicholas Riccardi, “GOP Leaders in 4 States Quash Dubious Trump Bid on Electors,” ABCNews. November 14, 2020.
10. John Eastman, “Privileged and Confidential. January 6 Scenario,” CNN. September 21, 2021.
11. Brendan Cole, “Mike Pence Hid in ‘Loading Dock’ in Underground Parking Garage During January 6 Riot,” Newsweek. November 9, 2021.
12. Miles Park, “Congress Passes Election Reform Designed to Ward Off Another Jan. 6,” National Public Radio. December 23, 2022.
13. National Popular Vote.