Why Do We Still Have the Electoral College?

The January 6 insurrection brought renewed interest in 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—the president and vice president have been elected without winning the national popular vote.

In a close 2024 election, it’s again possible a candidate will win the national popular vote but lose the electoral vote.

The history of the Electoral College

It’s through the Electoral College that we select the president and vice president. Article II, 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 requirements for the electors are left to each state, with the exception that federal office holders are prohibited from being electors. In addition, under the 23rd amendment, the District of Columbia has three electors, which results in a total of 538 electors.

During the constitutional convention of 1787, the creation of an electoral college was offered as an alternative to congressional election and the popular franchise. Among the plans presented were the Virginia plan, which called for Congress to elect the president; calls for popular election; and a proposal from James Wilson of Pennsylvania for electors to choose the president.

Several delegates, including Wilson and James Madison, preferred a popular election. Madison, however, raised a concern. The convention adopted the three-fifths clause relating to enslaved persons, namely in the Southern States, that they be counted in the census but not allowed to vote. Madison noted, “There is one difficulty, however of a serious nature attending an immediate choice by the people the right of suffrage was much more diffused in the Northern than the Southern.”

In Federalist No. 39, Madison asserted that the Constitution was drafted to be a mixture of state-based and population-based government consisting of the state-based Senate and the population-based House of Representatives. In Federalist No. 68, Hamilton believed 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.”

As a result, the Electoral College method was chosen and placed in the Constitution.

The evolution of choosing electors

The ideal of picking the “best and brightest” candidate was quickly doomed with the development of political parties in the elections of 1796 and 1800, something President George Washington warned against in his 1796 farewell address.

These elections pitted John Adams’ Federalists Party (with Adams the winner in 1796) against Thomas Jefferson’s Democratic-Republican Party (with Jefferson the winner in 1800 after a tie with Aaron Burr in the Electoral College and a vote in the House of Representatives). The “general ticket” in which state legislators required electors to support a single candidate further eroded the idea that electors should be elected from each district.

By 1836, the 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.

In the 1876 elections, the electoral votes were tied. A political settlement was brokered to elect Rutherford Hayes over Samuel Tilden by ending the stationing of federal troops in the South. In response, Congress enacted the Electoral Count Act. It was poorly written and would be amended after the 2020 election.

Electoral College confusion

Much misunderstood during the 2021 electoral count and insurrection was the electoral count process. Electors are on the ballot through their selection by the political parties or the presidential campaigns. They’re 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.

Electors meet in their individual state capitals on a date set by Congress (usually the Monday after the second Wednesday in December). At the meeting of electors, the certificate of ascertainment listing election results is read.

Based on this certificate, the electors complete six copies of a certificate of vote. Each is signed and certifies the electors’ votes. Attached to this certificate is a copy of the certificate of ascertainment. The executed certificates are sent to the vice president, as the president of the Senate; two copies to the archivist of the United States; two to the states’ secretaries of state; and one to the chief judge of the U.S. district court residing where the electors met.

It’s these certificates that are opened by the vice president in a joint session of Congress and the final votes read and tallied. It’s this process for the 2020 election that the January 6 insurrectionists attempted to disrupt.

Following the events of January 6, Congress passed the Electoral Count Reform Act. It expressly provides that the vice president’s function is ministerial and limited to reading and announcing the results shown on the certificates of vote.

It also provides that each state’s governor must certify the electors appointed and that the slate of electors must be set forth at least six days before the electors meet to cast their votes. The act further increases the number of members of Congress who can object from one representative and one senator to a minimum of 20 percent of the members of each body.

Can electors go rogue?

The problem of the faithless elector arises when electors selected to support one candidate vote for a different candidate. It arises because there’s no express provision of the Constitution or federal statute binding an elector’s vote.

Most state legislation provides that electors should 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, don’t 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 voters’ ballots.

On July 6, 2020, in a unanimous decision, the U.S. Supreme Court in Chiafalo v. Washington and Colorado Department of State v. Baca held that the states may enforce laws to punish faithless electors. The Chiafalo and Baca decisions rejected the electors’ free agent theory espoused by Hamilton.

The popular vote conundrum

In the 1968 presidential election, Richard Nixon won by a large electoral vote. He 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 less than a percentage point: 43.5 percent to 42.9 percent. This disparity caused Rep. Emanuel Celler (D-NY) to propose a constitutional amendment for a national popular vote. Sen. Birch Bayh (D-Ind.) became the sponsor in the Senate. On Sept. 30, 1969, President Nixon endorsed the proposal. The proposal died in a Senate filibuster.

President Carter, similarly, proposed a national popular vote and abolition of the Electoral College.

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 Florida’s 29 electors going for Bush. In 2016, Hillary Clinton won the national popular vote by more than three million votes but lost the Electoral College to Donald Trump.

Electoral College fixes

While Article II was amended by the 12th Amendment (the election process for president and vice president) and the 20th Amendment (addressing the death of the president before taking office), the Electoral College remains.

Jettisoning the Electoral College in favor of a national popular vote would require an amendment under Article V of the U.S. Constitution. That would require a two-thirds Congressional vote to propose and three-quarters of the states to approve. Other workarounds have been proposed:

• A national popular vote compact—An attempt to effectively replace the Electoral College is underway through the promotion of a national popular vote compact. Under it, 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. Sixteen states and the District of Columbia have joined the compact.

Favoring the idea is Article II, 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 I, section 10, clause 3. Under its express terms, it prohibits states from entering into “any Agreement or Compact” without the approval of Congress.

Further opposition comes from the argument that the Electoral College can’t be written out of the Constitution without going through the constitutional amendment process spelled out in Article V.

The true test will come when the number of states controlling 270 elector votes have signed on to the compact and attempted to elect a candidate with the most popular votes nationally. The U.S. Supreme Court will then need to decide the outcome.

• National district selection—Closer to the original concept of the founders, states could shift to congressional districts for selecting electors (such as the current practice in Maine and Nebraska). Electors being elected by district increases the importance of redistricting. This shift, with congressional redistricting reform, could impact the outcome of presidential elections.

While the Supreme Court in Rucho v. Common Cause limited federal court redistricting review in 2019, challenges under Section 2 of the Voting Rights Act and by state courts remain. In June 2023, the Supreme Court held in Merrill v. Milligan that Alabama violated the Voting Rights Act by failing to create a congressional map that fairly provided at least one additional Black district. Also in 2023, in Moore v. Harper, the court found the North Carolina Supreme Court was correct in holding that the state’s congressional district map violated state law.

On the state level, the Pennsylvania Supreme Court’s 2018 decision in League of Women Voters v. Commonwealth of Pennsylvania struck down the state’s congressional redistricting plan as unconstitutional under the state constitution’s guarantee of “free and equal elections.” 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. That, combined with district selection of electors, could materially change the outcome of future elections.

• Binding electors—In a more modest effort, the Uniform Law Commission has circulated to the states a Uniform Faithful Presidential Electors Act. It addresses the faithless elector problem by requiring pledges of faithfulness of all electors. Under the UFPEA, any attempt to violate an elector’s pledge results in automatic resignation and replacement by an alternate elector. Ten states have adopted the UFPEA.

The process for selecting the president and vice president is rooted in historic precedents that are no longer, if they ever were, applicable to the democratic process. Reform, or complete removal, of the Electoral College, is necessary. The question is which route is best and whether it will happen soon enough.