The Electoral College, And How We’re Getting Closer To Changing It

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“The present rule of voting for President…is so great a departure from the Republican principle of numerical equality, and even from the federal rule which qualifies the numerical by a State equality, and is so pregnant also with a mischievous tendency in practice, that an amendment of the Constitution on this point is justly called for by all its considerate & best friends.”

-James Madison, in a letter to George Hay, 1823

Since the earliest days of American self-rule, the method by which the President is elected has been a problematic affair. After much wrangling during the Constitutional Convention of 1787, it was decided that the President would be picked by a number of electors chosen by each state legislature, and thus the framework for the Electoral College that we all know and love today was built. This system, however, faced roadblocks almost immediately; for instance, it did not have any mechanism to handle the newly emerged political parties and was thus subject to having a President and Vice President from different parties. As such, it is has already been subject to two Constitutional amendments (the Twelfth in 1804 and the Fourteenth in 1868), and yet it is still in many ways a non-ideal and undemocratic system (as is explained more thoroughly below).

These are the concerns National Popular Vote seeks to remedy, by, as the name suggests, empowering the national popular vote to supersede the Electoral College. Unlike previous attempts to reform or abolish the Electoral College, it’s not a Constitutional amendment, nor is it taking place at the federal level. National Popular Vote is an organization that publicizes and coordinates efforts to raise awareness of problems within the Electoral College. More importantly, it also directs the movement of the National Popular Vote Interstate Compact (NPVIC) through state legislatures.

Put simply, the NPVIC is a bill that, if passed in enough states, would guarantee that the presidential candidate who receives the largest share of the popular vote would win the presidential election. It does this by taking advantage of the fact that each state is constitutionally allowed to decide how they allocate each of their electors. When a state passes this bill, it agrees to commit all of its electors in the Electoral College to the presidential candidate who gained the most votes in the national election, regardless of which candidate wins that particular state. The compact will only go into effect after enough states have passed it such that together they have a majority of votes in the Electoral College (that is, 270) and can themselves guarantee that the popular vote winner wins the election, regardless of what the other states do; until then the states will continue apportioning their representatives as they do under the current system. Currently, ten states and Washington, D.C. have joined the interstate compact, with a combined 165 electoral votes of the 270 required for the measure to go into effect. This comes after the landmark victory on April 15th when New York became that tenth state to ratify the compact, contributing its 29 electoral votes to the cause and bringing us that much closer to attaining a more egalitarian electoral system.

So why, specifically, is the Electoral College such a problem? Why is something like the NPVIC necessary? Because, as mentioned above, the Electoral College is fundamentally undemocratic, in a number of ways.

First, because of the way electors are distributed to each state, it weighs some people’s votes more than others. Within the Electoral College, each state begins with three electors, and then the remaining electors are distributed according to population. This means that several states (such as Alaska, Hawaii, Wyoming, and Vermont) have three electors when, if the electors were distributed purely according to population, they would only have one or two. Since the total number of electors is set in stone at 538 (435 members of the House of Representatives plus 100 members of the Senate plus 3 electors from the District of Columbia), giving small states a minimum of three electors effectively means that electors are taken away from the larger states; thus small states have more electoral power than they should. This all creates a system in which, for example, an Alaskan’s vote actually has more electoral weight than a Californian’s vote.

The Electoral College also disproportionately weighs the input not just of voters, but of states as well. This is specifically the fault of the winner-take-all aspect of the Electoral College, in that if a candidate gets 51% of the votes in a state, they get 100% of that state’s electors. Thus candidates have little incentive to campaign in states that are dependably to one side of the political spectrum. One of the effects this has is causing presidential candidates to campaign disproportionately in select swing states. While it comes as a surprise to no one that candidates spend more time and money in swing states, the extent to which this occurs is staggering. In 2012, after the major party conventions, Barack Obama and Mitt Romney held campaign events in just 12 states between the two of them, and that includes Vice Presidential appearances. More than two-thirds of these events were held in four states alone (Ohio, Florida, Virginia, and Iowa). Looking at campaign spending is even more worrying. FairVote, the same organization that tracked those campaign events, tracked campaign spending from April 11th to election day and found that President Obama spend 99.6% of his total television advertising budget in just ten states; Mitt Romney spent 99.9% of his television budget in ten states as well.

The winner-take-all system also means that most states have next to no chance of determining the winner of the election. Again, while in the abstract this isn’t very surprising, it is the level at which this occurs that one finds disconcerting. Immediately after the 2012 election, Nate Silver calculated his tipping-point index, which measures how likely it was that any given state could have, by itself, decided the outcome of the election. He concluded that just nine states had amongst themselves a 98.6% chance of providing the electoral vote that decided the election, meaning that these nine states were electorally 70 times more powerful than the other 41 states.

Perhaps most shocking, though, are the undemocratic outcomes that are possible under the Electoral College system. First and foremost comes the fact that three times in history (1876, 1888, and 2000) has the presidential candidate with the most popular votes lost the general election. The very fact that this is possible, let alone that it’s already happened three times, undeniably shows that the nature of the Electoral College is undemocratic. In fact, if you look at the data showing the number of electors given to each state and the population of each state, one can calculate that it is actually possible to become president while winning only 21.91% of the popular vote. To be sure, this would require the immensely unlikely outcome of a candidate winning just and only just 51% of the vote in the smallest 40 states in the US, but the very fact that it’s even possible is unforgivable.

Even more frightening is the method by which a tie in the Electoral College would be decided. If there is a tie, or if there are more than two candidates and no candidate wins a majority of electors, it falls to the US House of Representatives to break the tie. However, it’s not each representative that gets a vote, but each state, meaning the representatives of each state have to decide amongst themselves for whom to cast their vote. This is obviously worrying in that the president will be chosen by just 435 people who can vote any way they please, but let’s assume that the (admittedly rather likely) outcome happens in which each state in the House votes in favor of the candidate that their state elected. This can hypothetically lead to a scenario in which a candidate (say, a third party candidate who came in third but received enough electoral votes to prevent any other candidate reaching a majority) can become president if just the 26 smallest states vote for him in the House. Those 26 smallest states representing just 17% of the US population would have successfully chosen a president whom 83% of Americans didn’t support. Again, is this extremely improbable? Yes. But a system in which it’s even possible is not democratic, and is not one that we should maintain.

That’s why more than 70% of Americans support reforming the Electoral College. Right now the cause is just over halfway there, but the National Popular Vote Interstate Compact is still the best chance America has seen of reforming that institution in a long time. It provides an opportunity for a less anachronistic, more democratic system in which we are at least somewhat closer to the ideal of “one person, one vote” upon which this country was ostensibly founded.

[Image: http://upload.wikimedia.org/wikipedia/commons/thumb/1/1b/Cartogram_NPVIC_Current_Status.svg/1000px-Cartogram_NPVIC_Current_Status.svg.png]

About author

Will Stewart

A sophomore hailing from Nashville, Tennessee, Will Stewart has been interested in politics for several years, having participated in speech and debate in high school in addition to frequently writing op eds for his school newspaper. He is majoring in political science and economics with a minor in history. In addition to VPR, he participates in Model UN, the Vanderbilt College Democrats, and Mock Trial on campus and in the Tennessee State College Democrats outside of school. He is particularly interested in American economic policy and elections. When not working on school or extracurriculars, he loves playing strategy games, reading science fiction, and binge-watching television shows.

Comments
  • David Foote (@CaptainOddball)#1

    May 8, 2014

    @oldgulph Glad to hear NPV is working to introduce a bill to obtain congressional consent for their compact. They will most certainly need it. No way in blazes would the Supreme Court, without Article I, Section 10 consent, stand by and allow a electoral compact that binds the power of certain states together in a fashion specifically calculated to affect election of the president. There are no comparable cases in the judicial record. This kind of compact is 100% virgin ground and the high court will most assuredly find that the congressional consent is required. Better get to work on that consent legislation.

    Reply
  • s e (@oldgulph)#2

    May 8, 2014

    In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided).

    Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls
    in recent or past closely divided Battleground states: CO – 68%, FL – 78%, IA –75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%;
    in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%;
    in Southern and Border states: AR – 80%, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and
    in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%.

    Most Americans don’t ultimately care whether their presidential candidate wins or loses in their state . . . they care whether he/she wins the White House. Voters want to know, that even if they were on the losing side, their vote actually was equally counted and mattered to their candidate. Most Americans think it would be wrong for the candidate with the most popular votes to lose. We don’t allow this in any other election in our representative republic.

    The bill has passed 33 state legislative chambers in 22 rural, small, medium, large, Republican, Democratic, and purple states with 250 electoral votes. The bill has been enacted by 11 jurisdictions with 165 electoral votes – 61% of the 270 necessary to go into effect.

    NationalPopularVote

    Reply
  • s e (@oldgulph)#3

    May 8, 2014

    The indefensible reality is that more than 99% of campaign attention (ad spending and visits) was showered on voters in just ten states in 2012- and that in today’s political climate, the swing states have become increasingly fewer and fixed.

    Where you live should not determine how much, if at all, your vote matters.

    The current state-by-state winner-take-all method of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), ensures that the candidates, after the conventions, will not reach out to about 80% of the states and their voters. Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind.

    Presidential candidates concentrate their attention on only a handful of closely divided “battleground” states and their voters. There is no incentive for them to bother to care about the majority of states where they are hopelessly behind or safely ahead to win.
    10 of the original 13 states are ignored now.
    Four out of five Americans were ignored in the 2012 presidential election. After being nominated, Obama visited just eight closely divided battleground states, and Romney visited only 10. These 10 states accounted for 98% of the $940 million spent on campaign advertising. They decided the election.
    Two-thirds of the general-election campaign events (176 of 253) were in just 4 states (Ohio, Florida, Virginia, and Iowa).

    None of the 10 most rural states mattered, as usual.
    About 80% of the country was ignored –including 24 of the 27 lowest population and medium-small states, and 13 medium and big states like CA, GA, NY, and TX.

    It was more obscene than the 2008 campaign, when candidates concentrated over 2/3rds of their campaign events and ad money in just 6 states, and 98% in just 15 states. Over half (57%) of the events were in just 4 states (OH, FL, PA, and VA).
    In 2004, candidates concentrated over 2/3rds of their money and campaign visits in 5 states; over 80% in 9 states; and over 99% of their money in 16 states.

    80% of the states and people have been merely spectators to presidential elections. They have no influence. That’s more than 85 million voters, more than 200 million Americans, ignored. When and where voters are ignored, then so are the issues they care about most.

    The number and population of battleground states is shrinking.

    Reply
  • s e (@oldgulph)#4

    May 8, 2014

    Policies important to the citizens of non-battleground states are not as highly prioritized as policies important to the handful of ‘battleground’ states when it comes to governing.

    Charlie Cook reported in 2004:
    “Senior Bush campaign strategist Matthew Dowd pointed out yesterday that the Bush campaign hadn’t taken a national poll in almost two years; instead, it has been polling [in the then] 18 battleground states.” [only 10 in 2012]

    Bush White House Press Secretary Ari Fleischer acknowledging the reality that [then] more than 2/3rds of Americans were ignored in the 2008 presidential campaign, said in the Washington Post on June 21, 2009:
    “If people don’t like it, they can move from a safe state to a swing state.”

    State-by-state winner-take-all laws adversely affects governance. Sitting Presidents (whether contemplating their own re-election or the election of their preferred successor) pay inordinate attention to the interests of “battleground” states.
    ** “Battleground” states receive over 7% more grants than other states.
    ** “Battleground” states receive 5% more grant dollars.
    ** A “battleground” state can expect to receive twice as many presidential disaster declarations as an uncompetitive state.
    ** The locations of Superfund enforcement actions also reflect a state’s battleground status.
    ** Federal exemptions from the No Child Left Behind law have been characterized as “‘no swing state left behind.”

    The effect of the current state-by-state winner-take-all system on governance is discussed at length in Presidential Pork by Dr. John Hudak of the Brookings Institution.

    Compare the response to hurricane Katrina (in Louisiana, a “safe” state) to the federal response to hurricanes in Florida (a “swing” state) under Presidents of both parties. President Obama took more interest in the BP oil spill, once it reached Florida’s shores, after it had first reached Louisiana. Some pandering policy examples include ethanol subsidies, Steel Tariffs, and Medicare Part D. Policies not given priority, include those most important to non-battleground states – like water issues in the west.

    Reply
  • s e (@oldgulph)#5

    May 8, 2014

    Anyone concerned about the relative power of big states and small states should realize that the current system shifts power from voters in the small and medium-small states to voters in the current handful of big states.

    With National Popular Vote, when every popular vote counts and matters to the candidates equally, successful candidates will find a middle ground of policies appealing to the wide mainstream of America. Instead of playing mostly to local concerns in Ohio and Florida, candidates finally would have to form broader platforms for broad national support. Elections wouldn’t be about winning a handful of battleground states.

    Now political clout comes from being among the handful of battleground states. 80% of states and voters are ignored by presidential campaign polling, organizing, ad spending, and visits.

    State winner-take-all laws negate any simplistic mathematical equations about the relative power of states based on their number of residents per electoral vote. Small state math means absolutely nothing to presidential campaign polling, organizing, ad spending, and visits, or to presidents once in office.

    In the 25 smallest states in 2008, the Democratic and Republican popular vote was almost tied (9.9 million versus 9.8 million), as was the electoral vote (57 versus 58).

    In 2012, 24 of the nation’s 27 smallest states received no attention at all from presidential campaigns after the conventions.- including not a single dollar in presidential campaign ad money after Mitt Romney became the presumptive Republican nominee on April 11. They were ignored despite their supposed numerical advantage in the Electoral College. In fact, the 8.6 million eligible voters in Ohio received more campaign ads and campaign visits from the major party campaigns than the 42 million eligible voters in those 27 smallest states combined.

    Now with state-by-state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), presidential elections ignore 12 of the 13 lowest population states (3-4 electoral votes), that are non-competitive in presidential elections. 6 regularly vote Republican (AK, ID, MT, WY, ND, and SD), and 6 regularly vote Democratic (RI, DE, HI, VT, ME, and DC) in presidential elections. Voters in states that are reliably red or blue don’t matter. Candidates ignore those states and the issues they care about most.

    Kerry won more electoral votes than Bush (21 versus 19) in the 12 least-populous non-battleground states, despite the fact that Bush won 650,421 popular votes compared to Kerry’s 444,115 votes. The reason is that the red states are redder than the blue states are blue. If the boundaries of the 13 least-populous states had been drawn recently, there would be accusations that they were a Democratic gerrymander.

    Support for a national popular vote is strong in every smallest state surveyed in recent polls among Republicans, Democrats, and Independent voters, as well as every demographic group. Support in smaller states (3 to 5 electoral votes): AK -70%, DC -76%, DE –75%, ID -77%, ME – 77%, MT- 72%, NE – 74%, NH–69%, NE – 72%, NM – 76%, RI – 74%, SD- 71%, UT- 70%, VT – 75%, WV- 81%, and WY- 69%.

    Among the 13 lowest population states, the National Popular Vote bill has passed in nine state legislative chambers, and been enacted by 4 jurisdictions.

    With the current state-by-state winner-take-all system of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), it could only take winning a bare plurality of popular votes in only the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with a mere 23% of the nation’s votes!

    Reply
  • s e (@oldgulph)#6

    May 8, 2014

    The presidential election system, using the 48 state winner-take-all method or district winner method of awarding electoral votes, that we have today was not designed, anticipated, or favored by the Founding Fathers. It is the product of decades of change precipitated by the emergence of political parties and enactment by 48 states of winner-take-all laws, not mentioned, much less endorsed, in the Constitution.

    The Electoral College is now the set of 538 dedicated party activists, who vote as rubberstamps for presidential candidates. In the current presidential election system, 48 states award all of their electors to the winners of their state. This is not what the Founding Fathers intended.

    The Founding Fathers in the Constitution did not require states to allow their citizens to vote for president, much less award all their electoral votes based upon the vote of their citizens.

    The presidential election system we have today is not in the Constitution, and enacting National Popular Vote would not need an amendment. State-by-state winner-take-all laws to award Electoral College votes, were eventually enacted by states, using their exclusive power to do so, AFTER the Founding Fathers wrote the Constitution. Now our current system can be changed by state laws again.

    National Popular Vote is based on Article II, Section 1 of the U.S. Constitution, which gives each state legislature the right to decide how to appoint its own electors. Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1:
    “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

    The Constitution does not prohibit any of the methods that were debated and rejected. Indeed, a majority of the states appointed their presidential electors using two of the rejected methods in the nation’s first presidential election in 1789 (i.e., appointment by the legislature and by the governor and his cabinet). Presidential electors were appointed by state legislatures for almost a century.

    Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.

    In 1789, in the nation’s first election, the people had no vote for President in most states, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes.

    The current statewide winner-take-all rule (used by 48 of the 50 states) is not in the Constitution. It was not the Founders’ choice (having been used by only three states in the nation’s first presidential election in 1789). It was not debated at the Constitutional Convention, and it was not mentioned in the Federalist Papers. It is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all method. The Founders were dead for decades before the winner-take-all rule became prevalent.

    The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state’s electoral votes.

    As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all method is used by 48 of the 50 states. States can, and have, changed their method of awarding electoral votes over the years. Maine and Nebraska do not use the winner-take-all method– a reminder that an amendment to the U.S. Constitution is not required to change the way the President is elected.

    The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.

    Reply
  • s e (@oldgulph)#7

    May 8, 2014

    Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.

    The U.S. Constitution provides:
    “No state shall, without the consent of Congress,… enter into any agreement or compact with another state….”

    Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can “not be read literally.” In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:
    “Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.

    “The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta.”

    Specifically, the Court’s 1893 ruling in Virginia v. Tennessee stated:
    “Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”

    The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
    “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”

    In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:
    “The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”

    The National Popular Vote compact would not “encroach upon or interfere with the just supremacy of the United States” because there is simply no federal power — much less federal supremacy — in the area of awarding of electoral votes in the first place.

    In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the compact at issue specified that it would come into force when seven or more states enacted it. The compact was silent as to the role of Congress. The compact was submitted to Congress for its consent. After encountering fierce political opposition from various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded with the implementation of the compact without congressional consent. U.S. Steel challenged the states’ action. In upholding the constitutionality of the implementation of the compact by the states without congressional consent, the U.S. Supreme Court applied the interpretation of the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing that:
    “the test is whether the Compact enhances state power quaod [with regard to] the National Government.”

    The Court also noted that the compact did not
    “authorize the member states to exercise any powers they could not exercise in its absence.”

    Reply
  • David Foote (@CaptainOddball)#8

    May 7, 2014

    National Popular Vote (NPV) is an interstate compact effecting election of the president and vice president, and as such, under Article I, Section 10 of the Constitution, approval of both houses of Congress would be required to become effective. While I support the status quo for the Electoral College as a means of leveling power between large and small states, I could accept changing or abolishing it if accomplished by constitutional amendment. I could grudgingly accept NPV if it somehow obtained Congressional approval. But the idea of accepting NPV without Congressional approval is something I would not possibly accept. The supporters of NPV would be better off directing their energies towards passage of a constitutional amendment, and if they can’t do that, they should really be asking themselves why not.

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