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GPSolo September/October 2024: Election Law

The Electoral College: Two Proposals for Reform

John Hardin Young

Summary

  • In the discussion of alternatives to the Electoral College, two options merit consideration: relying on the national popular vote and selecting electors by congressional district.
  • To jettison the Electoral College in favor of a national popular vote would require an amendment under Article 5 of the U.S. Constitution.
  • The district-by-district vote method does not ensure democratic results because of gerrymandered and unequal districts.
The Electoral College: Two Proposals for Reform
Manuel Augusto Moreno via Getty Images

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America’s democratic process for selecting the president and vice president is not based on the direct vote of the people. This is evident when candidates can win the national popular vote but lose because their opponent wins the Electoral College.

The Electoral College has played a crucial role in the election of the president and vice president on five occasions (1824, 1876, 1888, 2000, and 2016), when the president and vice president have been elected without winning the national popular vote.

The Constitutional Basis for the Electoral College

Article 2, Section 1, Clause 2 of the U.S. Constitution provides that the president and vice president are to be chosen by electors in “Each State . . . in such Manner as the Legislature thereof may direct . . . equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress. . . .” The criteria for the electors is left to each state, with the exception that federal officeholders are prohibited from being electors.

During the Constitutional Convention of 1787, the creation of an electoral college was offered as an alternative to the popular vote and congressional district-based election.

In Federalists Papers No. 68, Alexander Hamilton asserted that electors were free agents and that “[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.” This would change with the growth of the nation and political parties.

By 1836, a statewide winner-take-all choice of electors became the universal practice. The only deviations have been the adoption in 1972 by Maine and in 1992 by Nebraska of district plans where electors are chosen by election in their Congressional districts, as well as two at-large electors assigned to the winner of the statewide popular vote.

After the 1876 election, in which the electoral votes were tied and a political settlement was brokered to elect Rutherford Hayes over Samuel Tilden and end the stationing of federal troops in the South, Congress enacted the Electoral Count Act. The Act was poorly written and would be amended after the 2020 election to define the limited role of the vice president in tallying the electoral college votes.

The Electoral College Process

Electors are on the ballot through their selection by the political parties or the presidential campaigns. They are intended to vote for their nominee. In presidential general elections, voters are officially voting for the political party’s slate of electors, not the actual presidential and vice presidential candidates.

The Faithless Elector

The problem of the faithless elector arises when electors selected to support one candidate vote for a different candidate. It arises because there is no expressed provision in the Constitution or federal statute binding an elector’s vote. Most state legislation provides that electors are to vote for the popular winner in casting a vote in the Electoral College. Thirty-two states and the District of Columbia mandate that electors vote for the candidate to whom they are pledged. Most states, however, do not enforce this pledge.

In the history of presidential elections, 179 electors have chosen not to vote for the candidate to whom they were pledged: 106 because of a personal preference, 71 because the candidate died before the election, and two because of abstention. Among the faithless electors in 2016 were electors in Washington State and Colorado. Washington fined the faithless electors. Colorado voided the faithless voter’s ballot. On July 6, 2020, in a unanimous decision, the U.S Supreme Court in Chiafalo v. Washington, 591 U.S. ___ (2020), and Colorado Department of State v. Baca, 591 U.S. ___ (2020), held that the states may enforce laws to punish faithless electors. The Chiafalo and Baca decisions rejected the elector’s free agent theory espoused by Hamilton.

Proposals for Reform

Two of the proposals rejected during the constitutional debates merit reconsideration: reliance on the national popular vote and selecting electors by congressional district.

Popular Vote

The 1968 presidential election results show the difference in the methods. Richard Nixon won by a large electoral vote: Nixon received 301 electoral votes (56 percent) to Vice President Hubert Humphrey’s 191 electoral votes (35.5 percent), with George Wallace receiving 46 electoral votes (8.5 percent). The popular vote, however, portrayed a different picture: the difference between Nixon and Humphrey was 43.5 percent to 42.9 percent. This disparity caused Representative Emanuel Celler (D-NY) to propose a constitutional amendment for a national popular vote with the winner by a plurality of the votes, provided the winners received at least 40 percent of the vote. In the case of a candidate not reaching the 40 percent threshold, a run-off was to be held. Senator Birch Bayh (D-IN) became the sponsor in the Senate. On September 30, 1969, President Nixon endorsed the proposal. The proposal died in a Senate filibuster.

President Jimmy Carter similarly proposed a national popular vote and abolition of the Electoral College to no avail.

In 2000, Al Gore received approximately 500,000 more votes than George Bush but lost the Electoral College after a recount in Florida resulted in that state’s 29 electors going for Bush. In 2016, Hillary Clinton won the national popular vote by almost 3 million votes but lost the Electoral College to Donald Trump.

To jettison the Electoral College in favor of a national popular vote would require an amendment under Article 5 of the U.S. Constitution (requiring a two-thirds congressional vote to propose and three-quarters of the states to approve).

While Article 2 was amended by the 12th Amendment (election process for president and vice president) and the 20th Amendment (death of president before taking office), the Electoral College has remained. An attempt to effectively replace the Electoral College without following the Article 5 process is underway through the promotion of a national popular vote compact. Under this compact, states with a combined total of 270 electors necessary to win the Electoral College would enter into an interstate compact to require their electors to vote consistent with the national popular vote.

Currently, 17 states and the District of Columbia, together possessing 209 electoral votes, have joined the compact. Favoring the idea is Article 2, Section 1, Clause 2 of the Constitution, which grants each state legislature the plenary power to determine how it selects its electors. Opposing the idea is a concern that the compact requires congressional consent under the Compact Clause in Article 1, Section 10, Clause 3, which, under its express terms, prohibits states from entering into “any Agreement or Compact” without the approval of Congress. Further opposition comes from the argument that the Electoral College cannot be written out of the Constitution without going through the constitutional amendment process spelled out in Article 5. The true test will come when the number of states controlling 270 electoral votes have signed onto the compact and attempted to elect a candidate with the most popular votes nationally. The Supreme Court will then need to decide the outcome.

To assess the impact of the idea of the national popular vote determining the outcome of a presidential election, here is a comparison of recent elections:

  Electoral College Winner National Popular Vote Winner
2008 365 Obama/Biden (67.8%) Obama/Biden (52.9%)
2012 332 Obama/Biden (61.7%) Obama/Biden (51.1%)
2016 306 Trump/Pence (56.9%) Clinton/Kaine (48.2%)*
2020 306 Biden/Harris (56.9%) Biden/Harris (51.3%)

*In 2016, Clinton/Kaine won the national popular vote by 2,868,518 votes but lost the Electoral College.

Congressional District Selection

Closer to the original concept of the founders, states could shift to congressional districts for selecting electors. The concept of counting congressional districts found early support. Constitutional amendments to use this method were introduced in 1813, 1819, 1820, and 1822. In McPherson v. Blacker, 146 U.S. 1 (1892), also relied on in part in Bush v. Gore, 531 U.S. 98 (2000), the U.S. Supreme Court in 1892 upheld the employment of the congressional district method in Michigan. As late as 1969, Senator Karl Mundt (R-SD) introduced Senate Joint Resolution 12 in the 91st Congress, calling for a constitutional amendment to convert the electoral college method to a congressional district approach. The Mundt resolution was co-sponsored by 18 other Senators. It did not reach the support level needed by Article 5 of the Constitution.

The current practice in Maine and Nebraska, modified to include the votes of the state’s two senators, establishes that this alternative could be adopted by the states without amending the Constitution.

Choosing electors by district, however, increases the importance of redistricting. In this example, one congressional district vote is awarded to the candidate who receives the most popular votes in that district. (Electoral College counting further exploits inequities in the popular vote by relying on the inclusion of the two senators in each state—in a winner-take-two addition—in the count and the impact of differences in district size and state population as part of the whole national popular vote.)

The major flaw in this approach is that Congressional districts are heavily gerrymandered. This approach increases the incentive to gerrymander.

While the Supreme Court in Rucho v. Common Cause, 139 S. Ct. 2484 (2019), limited the federal courts in redistricting, review continues when violations of Section 2 of the Voting Rights Act are alleged. The Supreme Court in Allen v. Milligan (2023) held that Alabama violated the Voting Rights Act by failing to create a congressional map that fairly provided at least one additional Black district. In Moore v. Harper, 143 S. Ct. 2065 (2023), the Court found that the North Carolina Supreme Court’s original decision was correct in holding that the state’s congressional district map violated state law.

On the state level, the Pennsylvania Supreme Court decision in League of Women Voters of Pa. v. Com. of Pa., 181 A.3d 1083 (Pa. 2018), struck down the state’s congressional redistricting plan as unconstitutional under the state constitution’s guarantee of “free and equal elections” clause. The National Conference of State Legislatures reports that 30 states include some form of “free” in their constitutions, and 18 include the words “equal” or “open” in addition to “free.”

These cases support the continued attention to electoral fairness in congressional map drawing, which, combined with district selection of electors, could materially change the outcome of future elections.

Looking at the results of recent presidential election shows the following:

  Electoral College Winner District-by-District Winner
2008 365 Obama/Biden (67.8%) 301 Obama/Biden (55.9%)
2012 332 Obama/Biden (61.7%) 274 Romney/McClain (50.9%)
2016 306 Trump/Pence (56.9%) 290 Trump/Pence (53.9%)
2020 306 Biden/Harris (56.9%) 277 Biden/Haris (51.4%)

When we step back to the 2000 contested presidential election, if the delegate method were used, Bush/Cheney would have received 288 electoral votes to Gore/Lieberman’s 250 electoral votes. With 25 electoral votes at stake in Florida, a recount would have been still necessary as without Florida in the delegate count, Bush/Cheney only had 263 of the 270 electoral college votes needed. The final electoral college count (under the current system) was Bush/Cheney’s 271 to Gore/Lieberman’s 267.

The Gore/Lieberman ticket, however, gained 537,179 more national popular votes, thereby making them the winner if the national popular vote method had been used.

The Need for Reform

The process for selecting the president and vice president is rooted in historical precedents that are no longer applicable to the democratic process. Reform, or complete removal, of the Electoral College is necessary. Two alternatives are possible: popular vote or district-by-district vote. The district method does not, however, assure democratic results because of gerrymandered and unequal districts.

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