Should the U.S. Keep the Electoral College?

By: Dr. Anne Cizmar, associate professor, EKU Department of Government & Economics

Why does the U.S. have the Electoral College?

When the Founding Fathers wrote the Constitution, they had a difficult time deciding how the president should be selected. They considered several different methods for choosing the president, including selection by Congress or popular vote. In the end, they compromised on the Electoral College. It wasn’t that they believed the Electoral College was an ideal way to select the president, but believed it was the best option they had available. (More information about this choice can be found here: https://www.nytimes.com/2000/12/19/opinion/the-accidental-electors.html.)

What are the benefits of the Electoral College?

The Founders wrote the Constitution in 1787, in a world that looks very different than the one we live in today. There have been significant changes in technology and society since that time. This leads many people to question the purpose for maintaining the Electoral College. Why does anyone support the Electoral College today?

There are some practical benefits to the Electoral College. The Electoral College increases election manageability. Counting votes in a country with nearly 327 million people is a daunting task. This is especially problematic because states are allowed to determine their own methods and equipment for voting. This was an issue in the 2000 presidential election when Florida had trouble determining the winner for their state due to “hanging chads,” “pregnant chads,” and the other potential miss-votes caused by problems with the punch card ballots. (https://www.nytimes.com/2000/11/19/us/counting-the-vote-the-machine-new-focus-on-punch-card-system.html). This issue gripped the country and left the presidential winner undetermined because the Florida electoral votes were needed to get either Bush or Gore over the 270 vote threshold to certify the election. Now imagine that this scenario was being repeated all over the nation. Based on the Electoral College winner-take-all system, we don’t need to be confident in our ability to count each vote accurately. We only need to be confident that we can count enough votes accurately to be certain of the electoral outcome in each state. If a national popular vote determined the presidency, each vote would be critical.

The Electoral College system also helps to ensure that the winning candidate has a broad base of electoral support in two ways. First, candidates must win across the nation to be able to win the presidency. Although there are electoral maps that allow candidates to win a relatively small number of states while winning the presidency, it’s impossible for a candidate to get support from only one region of the country and still win the election based on the map today. Second, the Electoral College, because of the winner-take-all system employed by most states, ensures that the actual choices for president are winnowed down to a few names. That means that a good portion of Americans are voting for the winning candidate, even if the popular vote winner loses. The Electoral College creates voter incentives to vote for one of the major party candidates or else risk “wasting” votes for third party candidates that don’t have a chance at winning a plurality of votes in enough states to win the Electoral College. This again creates a broad base of support for whoever wins.

Finally, proponents of the Electoral College can rely upon the argument that the Founders created the Electoral College for a reason. They didn’t think that the public should directly elect the president. They considered that option and rejected it.

What are the drawbacks of the Electoral College?

On the other hand, opponents of the Electoral College don’t have to look far to argue that it is undemocratic and thwarts public will. In the 2016 presidential election, Donald Trump was elected president with 306 electors and almost 63 million votes—about 2.9 million votes less than Hillary Clinton. (Results here: https://www.nytimes.com/elections/results/president). Despite winning the popular vote, Clinton lost the election. In today’s world, with technological advancements that allow voters to know every detail of a campaign, the two political parties holding primaries to winnow the pool of candidates to a few choices in the general election, and the democratic expansion of the electorate to include women, minorities, 18 year olds, and other groups previously prohibited from voting, the popular vote winner losing the presidential election is an outrage to many voters.

Another potential drawback of the Electoral College is contingent elections—when no candidate gets the minimum number of electors required to win the election. There are a total of 538 electoral votes. This represents the congressional representation for each state (members of the U.S. House of Representatives and the U.S. Senate), plus 3 votes for Washington, D.C. as per the 23rd Amendment to the Constitution. The winning candidate needs to receive at least 270 electoral votes. When neither candidate gets the 270 votes required, it’s called a contingent election. In the case of contingent elections, Congress actually selects the president and vice president. There have been two contingent elections in U.S. history—1800 and 1824—and another near miss in 2000.

Contingent elections both remove the public from the calculus of choosing the president and also violate separation of powers because the legislative branch selects the executive. It’s also theoretically possible that the president and vice president could be from two different political parties since the House votes for the president and the Senate votes for the vice president.

There are also concerns that the Electoral College violates the principle of political equality and the notion that each person should have an equal vote. The Senate is very malapportioned. Each state gets two senators, regardless of population. That means that California, with nearly 40 million residents, gets 2 senators. Wyoming, with 600,000 people, also gets 2 senators. Since congressional representation is used to calculate the Electoral College votes for each state, the Senate’s malapportionment has implications for the Electoral College. Voters in more populous states are underrepresented in the Electoral College relative to voters in smaller states. Furthermore, states that are swing states or battleground states have more influence on the election than voters in reliably red or blue states. With the winner-take-all method of allocating electoral votes, voters in swing states are casting decisive votes that can change the election’s outcome. Voters in partisan states have less impact on the outcome.

What can be done to change the Electoral College?

The only way to fully eliminate the Electoral College is through a constitutional amendment.There has been one constitutional amendment pertaining to the Electoral College so far. The 12th Amendment specifies that the electors must cast separate ballots for the president and vice president, after the 1800 election tie between Jefferson and Burr. However, constitutional amendments are incredibly difficult to pass, by design. It is unlikely in the current political climate that other constitutional amendments pertaining to the Electoral College will pass.

That hasn’t stopped Electoral College opponents from trying. http://time.com/4597833/electoral-college-donald-trump-challenge/

In one attempt to eliminate the Electoral College, Senator Birch Bayh of Indiana offered a constitutional amendment that would allow for the president to be chosen by popular vote, as long as the election winner received at least 40% of the popular vote. This would ensure that the popular vote winner still must have widespread support. This amendment, though, failed to garner enough support to be ratified.

Even though a constitutional amendment eliminating the Electoral College is unlikely to pass, that doesn’t mean that all avenues for potential reform are lost. States are allowed to choose the way that they allocate their Electoral College votes. Although 48 states use the winner-take-all method of allocating electoral votes—whichever candidate gets the largest percentage of votes gets 100% of the Electoral College votes for the state—two states use a different model. Maine and Nebraska each use the Congressional District Allocation (CDA) method to allocate their electoral votes, also known as the Maine-Nebraska plan. In Maine, rather than allocating all 4 electoral votes to the statewide winner, they award one electoral vote for the winner of each congressional district, and then two for the statewide winner. This means Maine could have 4 electoral votes for the same candidate, like in 2012, or 3 and 1 votes, like in 2016 when 3 votes went for Clinton and 1 vote went for Trump. Nebraska follows the same plan.

The CDA method may allow the Electoral College to more closely mimic the popular vote totals in the U.S. At the same time, switching to the CDA method would also mean that the gerrymandering of House districts would impact presidential election outcomes as well. Switching to the CDA method is not a guarantee, then, that the public’s votes will be more accurately represented.

The CDA method is only one possible variation on the allocation of electoral votes by state. Another possibility is allocating the state’s electoral votes proportionally to the popular vote total. If a candidate received 60% of the popular vote in a state, for example, s/he could be given 60% of the electoral votes. Proportional representation may more closely mirror the popular vote total. Although, based on the allocation of electors to states, it’s still not a guarantee that the popular vote and Electoral College vote will match.

Without a constitutional amendment, states still could choose to match the popular vote with their electors. States could each pass their own state law that would change their electoral vote distribution to go with the popular vote winner. That way, without a constitutional amendment, states would support the popular vote winner with their electoral votes. This is unlikely to happen, though. If enough states were willing to adopt this popular vote strategy through state law, then an outright abolishment of the Electoral College through constitutional amendment would be an option.

Published on October 19, 2018