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Calls to change Electoral College ignore legal realities

During the past two centuries, more than 700 proposals have been introduced in Congress to reform or eliminate the Electoral College. None has become law because of constitutional hurdles. A new ABA Legal Fact Check, posted on Constitution Day last week, explores why and looks at the limited leeway states have to make changes to how their electors are chosen.

The Electoral College system has not changed much since 1787 when it was defined in the U.S. Constitution.

The Electoral College system has not changed much since 1787 when it was defined in the U.S. Constitution.

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The current system for electing a U.S. president traces back to 1787 when the Founding Fathers crafted the Electoral College system as a compromise between those who argued for the election of the president by a vote of Congress and the election of the president by a popular vote of qualified citizens. Debate about the fairness of the Electoral College renewed after the 2016 election when Donald Trump became the fifth U.S. president to win the presidency despite losing the popular vote.

Over the years, the Electoral College system itself has changed little although the popular vote has been rightfully guaranteed to millions more previously denied the ability to vote based on race, gender and age. Most states have a “winner-take-all” system that awards all the votes of a state’s Electoral College electors to the presidential candidate who obtains the most electoral votes in that state. Maine and Nebraska, however, have enacted the district method, which allocates one electoral vote to the winner of the popular vote in each state-drawn district. A split of electoral votes has occurred once in each of these states.

Electors are chosen through political party processes in each state and typically are bound by state law to vote for the candidate they represent. The Constitution, however, is silent on whether states or the electors themselves ultimately can decide which candidate gets the elector’s vote. While the U.S. Supreme Court has issued a handful of decisions related to the Electoral College, it has not addressed whether a state can punish a so-called “faithless elector” who votes for a candidate other than the one he or she was chosen to represent.

In 2016, such rogue electors in both Washington state and Colorado prompted court challenges in both situations. The ultimate outcome of these cases might provide states with additional case law affecting the Electoral College.

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