2020’s US presidential election results were excruciatingly slow. And not just because of coronavirus. By Friday morning in America, Biden had secured a solid lead of ~4 million votes. The culprit, rather, was the electoral college.
How does the electoral college work?
Article II Section 1 Clause 2 of the Constitution allocates each state “a Number of Electors, equal to the [state’s] whole Number of Senators and Representatives” to select the President of the United States.
This guarantees every state and D.C. a minimum of 3 votes (each has 2 senators and at least one House representative). The winning candidate must achieve an absolute majority (at least 270) of the total 538.
The constitution allows states to decide how to choose electors. Since 1860, every state, bar two, has opted for a winner-takes-all popular vote — the most popular candidate receives all of the state’s electoral votes. The exceptions, Maine and Nebraska, allocate one EV per congressional district, with two more for the statewide popular vote winner.
Has it ever conflicted with the popular vote?
Yes, five times.
Most memorably, in 2016, Secretary Clinton won 2.9 million more votes nationwide than Trump, yet lost by 77 EVs. Just ~77,000 votes spread across Wisconsin, Michigan and Pennsylvania granted Trump’s victory.
Closer still was 2000. On election night, the college was split 246 Bush / Gore 250, with Wisconsin (11), Oregon (7) and, crucially, Florida (25) to declare. For five weeks, the world awaited Florida’s definitive results. After protracted legal battles, the Supreme Court finally ruled that a fair statewide recount would not be possible by the mandated deadline, December 18. The outcome: 537 Floridians anointed Bush President, despite Gore’s lead nationwide of over 500,000.
Alongside Gore and Clinton, in losing the presidency despite winning the popular vote, are John Adams (1824), Samuel Tilden (1876) and Grover Cleveland (1888).
Why keep it?
The electoral college’s supporters argue that it promotes political stability through preserving two-party politics, affirms the nation’s federalism and gives elections greater legitimacy.
Firstly, the college impedes third parties from reaching national prominence. Due to most states’ winner-takes-all method of allocating EVs, candidates need a majority in at least one state to receive any (ignoring Maine and Nebraska). Not since 1968 has a third-party candidate achieved this — George Wallace, a staunch segregationist, won five Southern states (47 EVs) for the American Independent Party. With 13.5% of the vote, Wallace would have won 73, were EVs allocated proportionally. By protecting two-party politics, the college, arguably, promotes political stability and encourages candidates to moderate their views to win national support.
Secondly, the college protects the nation’s federalism. By giving small states’ disproportionately large electoral power, presidential candidates are unable to concentrate solely on populous urban areas, ignoring rural voters. As a 2000 New York Times op-ed argued, this forces “presidential candidates to build alliances across ideological and geographical lines.” Ross Douthat argues that it also promotes greater political dynamism as candidates must “try to break regional blocs controlled by the opposition, rather than just maximising turnout in their own areas” to ensure significant and consistent electoral success.
Thirdly, some argue that the college gives presidential elections more legitimacy. By splitting vote counting across state lines, it discourages voter fraud, and makes it easier to isolate and track. As Allen Guelzo puts it, “ballot-box-stuffing games in Montana, Idaho, or Kansas— they simply won’t get much bang for their buck in terms of the electoral totals of those states”, whereas with a popular vote, “fraud could be conducted everywhere and still count”. Moreover, the college enlarges the winning candidate’s victory margin, strengthening their political mandate.
Why abolish it?
The electoral college’s opponents argue, primarily, that it is undemocratic. It systematically favours citizens in less populous and swing states, as well as Republicans and white voters, enabling a minority to overrule the majority’s preference. Furthemore, it is vulnerable to manipulation by faithless electors, and discourages widening voter participation.
Firstly, opponents argue that the college violates the fundamental democratic principle that every person’s vote should count equally.
Due to the minimum guarantee of 3 EVs, less populous states hold disproportionately large influence. A quick calculation shows that North Carolina has ~700,000 residents per EV, while Rhode Island has just ~265,000. This disparity will widen if current demographic trends continue, with rural dwellers increasingly migrating to cities. As rural voters skew Republican, some argue this unfairly advantages the party. As Levitsky and Ziblatt highlight, Republicans have won the popular vote once in the last five elections, yet held three presidential terms.
More worrying still is the power of battleground states. Swing states like Pennsylvania, Florida and Michigan attract vastly greater television advertising, campaign visits, and funding. Hence, the interests and values of swing states’ citizens, just 20% of the nation, receive undue importance. Jesse Wegman highlights the VP debates’ discussion of fracking as an example, “we’re talking endlessly about this issue that affects a relatively small number of people, mostly in Western Pennsylvania — which happens to be a battleground state.”
The system favours white voters too. The Economist highlights that as “the most competitive states are whiter than the national average”, white votes have greater influence. But history indicates a deeper root. In formulating the college, the framers reached the ⅗ compromise, counting slaves as ⅗ of white citizens for representation, benefitting slave-holding states. Even after slavery’s abolition, Alexander Keyssar explains, southern “Redeemer” governments benefitted from “a “five-fifths” clause: African-Americans counted fully toward representation (and thus electoral votes), but they were again disenfranchised”. In 1970, southern segregations blocked the Bayh-Celler Amendment, which attempted to abolish the college, for this reason. Jesse Wegman explains that segregationists understood that as white voters formed majorities in southern states, they directed the states’ EVs, whereas a national popular vote would mean “Black people in their state would have just as much voice in choosing the president as they did.”
Furthemore, the college enables a minority of the electorate to potentially overrule the majority’s preference for president — as occurred in 2016. Yet, we should resist assuming that the national tally would match the result of a nationwide popular vote. Campaigns strategise around the college, investing to increase turnout where it counts the most. Were the college to be abolished, campaigns would strategise accordingly, meaning the national tally might change.
Secondly, the college is vulnerable to manipulation by faithless electors, superseding voters’ judgement with their own. In 2016, seven voted against their state’s choice. This problem was resolved though by the Supreme Court’s recent ruling (Chiafalo et al. v. Washington) that states may “enforce an elector’s pledge”.
Thirdly, the college discourages voter participation. Campaigns have little incentive to invest resources in maximising turnout in safe states. Further, Akhil and Vikram Amar argue, it has historically discouraged states from expanding the franchise. Using the example of women’s suffrage: “In a direct national election system, any state that gave women the vote would automatically have doubled its national clout. Under the Electoral College, however, a state had no such incentive”. This may explain why some states disenfranchise felons.
Have there been attempts to abolish it?
Over 700 proposals have been introduced in Congress to reform/eliminate the college since 1800. Yet, none have met the required approval of ⅔ of Congress or ¾ of states for a Constitutional Amendment.
The most promising attempt was the Bayh-Celler amendment. Following 1968’s election (in which Nixon gained a ~21% EV lead over Humphrey, from a 0.7% higher vote share), Representative Emanuel Celler proposed a resolution to the House calling for the college’s replacement with a simple plurality system — provided their vote share was above 40%, the most popular candidate would win the presidency; otherwise a runoff election would ensue. With Nixon’s support, it secured broad bipartisan approval (339-70). Yet, in 1970, its Senate debate was killed by filibuster in a charge led by southern segregationist senators, Sam Ervin and Strom Thurmond, who feared the amendment would reduce their state’s influence and increase Black voters’ power within their states.
Are there efforts to abolish it now?
61% of Americans support replacing the college with a popular vote, but with a strong partisan split (89% of Democrats approve; just 23% of Republicans).
The most notable effort is the National Popular Vote Interstate Compact. It seeks to build a coalition of states holding a majority of electoral votes to agree to pledge thiers to the national popular vote winner. Currently, 15 states and D.C. have joined, providing 73% of the 270 EVs required for its activation. It utilises Article II, Section 1, Clause 2 of the Constitution, which allows states to decide how to choose their electors and allocate their EVs. However, if the compact reaches its milestone, it will likely face legal challenges to its constitutionality, with some scholars highlighting Article I, Section 10, Clause 3 as a potential roadblock (this could require that the compact gain congressional consent). Moreover, without the support yet of a single Republican-led state, the compact appears overtly partisan and lacks legitimacy.
Image Source: Wikimedia Commons