The Peoples’ Constitution—The Electoral College

By Ben Linhart

With the presidential election drawing near, the Electoral College will take center stage, for it is the members of the Electoral College—rather than the popular vote—that actually pick the next president.  

Many critics favor getting rid of the Electoral College and moving to a nationwide popular vote, while others believe the benefits of the Electoral College continue to outweigh any downsides. The Supreme Court recently jumped into the fray, issuing a key ruling on whether electors must faithfully follow the popular vote in their state. With the Constitution as our guide, this article discusses these issues, as well as the history of the Electoral College, and whether the Electoral College still makes sense in 2020.

What Is the Electoral College? Simply put, the Electoral College is a group of people from each state who are authorized to choose the next president using the electoral votes assigned to each state. The Electoral College comes directly from the Constitution: Article II, Section 2 states that: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . .”  Next, the 12th Amendment provides: “[t]he Electors shall meet in their respective states, and vote by ballot for President and Vice-President . . . they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President . . .”  In other words, each State chooses its Electors, and then the electors choose the President (and Vice President) by casting the electoral votes assigned to their state. 

Aaron Burr v. Thomas Jefferson.  The original Constitution did not require the electors to designate votes for president versus vice president. In the election of 1800, Aaron Burr and Thomas Jefferson tied with 73 electoral votes each. While most assumed that the votes were Jefferson for president and Burr for vice president, the ballots were unclear. (The 12th Amendment, quoted above, was passed to fix this very problem.) In 1800, and remaining true today, a tied electoral vote results in the House of Representatives choosing the president (with one vote in the House for each state). In the 1800 election, the first 35 votes in the House resulted in a tie, again, between Burr and Jefferson. Finally, on the 36th vote, with lobbying from Alexander Hamilton helping his cause, Jefferson won the vote and became our third president. It would be difficult to imagine a tie if a national popular vote—with tens of millions of votes cast—were used to elect the president, but such a tie is always possible with the Electoral College.

Key Voting Numbers: 538 and 270. The Constitution sets out the number of electoral votes based on the total number of representatives (currently 435) and senators (currently 100), plus—thanks to the 23rd Amendment—three electoral votes from the District of Columbia. These 538 electoral votes are allocated among the states, with larger population states having more votes, but no state having fewer than three. To win the presidency, a person needs a simple majority of electoral votes, and that number currently is 270.

Pros and Cons of Electoral College. A big criticism of the Electoral College is that it violates “one person, one vote.” The Electoral College gives more electoral voting power to small states than large ones, relative to population. For example, Vermont has three electoral votes and 623,000 people, or one electoral vote per 207,000 people. Texas has 38 electoral votes and 29 million people, or one Electoral vote per 763,000 people. The result: the votes of people in different states have different—and unequal—impacts on the electoral vote. Another major critique of the Electoral College is that it can result in an election where the winner of the popular vote loses the electoral vote, and thus loses the election. This has happened several times, including in the 2000 election (where Al Gore lost the election but had more popular votes than George W. Bush) and in 2016 (where Hillary Clinton lost the election but had more popular votes than Donald Trump). Such a result seems anti-democratic because it deprives a majority of American voters of their preferred candidate. 

However, these criticisms of the Electoral College also point to its strengths. A central purpose of the Electoral College—when drafted in 1787 and today—is the idea that much power in America remains with the states. The 10th Amendment says that the powers “not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This applies to all states, large and small, and it reflects our federal system of “vertically” shared power between the federal and state governments. The Electoral College promotes the same goal by ensuring that the views of small states are heard and not drowned out by states with much larger populations. As is often the case, James Madison captured the key idea very well, in the Federalist Paper #39: “[t]he executive power will be derived from a very compound source. The immediate election of the president is to be made by the states in their political characters. The votes allotted to them, are in a compound ratio, which considers them partly as distinct and co-equal societies; partly as unequal members of the same society.” What was Madison talking about? By “co-equal,” he was referring to ways the states relate to each other as equal partners (as in the Senate, where even the smallest state has the same representation as the largest). By “unequal,” Madison was acknowledging the political reality that the larger states have greater power than smaller ones (as in the House). The Electoral College captures Madison’s idea, but also reflects the “Great Compromise,” which created the Senate and the House with very different systems of representation, and thus helped bridge the deep divides among the states that existed after the Revolutionary War, and allowed them all to agree to our Constitution in 1787.

Census. Article 1, Section 2 of the Constitution mandates a census every 10 years, which directly impacts the Electoral College. The census results determine the number of representatives assigned to a state, and thereby impact the number of electors that each state has in the Electoral College.  Following recent censuses, some states have seen large increases (e.g., Florida) or decreases (e.g., Ohio) in the number of electors granted to them based on changes in population.      

Faithless Electors. The Supreme Court recently ruled on a crucial question: Can states force electors to vote for the candidate chosen by their states’ popular vote, and fine electors if they fail to do so. In Chiafalo v. Washington, several electors were fined by the State of Washington for failing to vote for Hillary Clinton, even though she won the vote in Washington. The electors argued that they had the right to exercise their independent judgment, and vote for their preferred candidate, regardless of how their state voted. A unanimous Supreme Court rejected this position, finding that the states had full power to control how the electors voted, and to fine them if they did not. “[A state can] instruct its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.”  

Alternatives to Electoral College. Space does not permit discussion here, but there are many alternatives to the current version of the Electoral College, such as proportionate voting, a pure popular vote, or the current agreement among some states to assign all their electoral votes to the populate vote winner. 

Conclusion. The Electoral College pays homage to the view that states matter. This was certainly the view at our nation’s founding. Concepts like federalism, the Great Compromise, the Electoral College, the 10th Amendment—all of these care deeply about the power and importance of states. But does this still matter today? Different Americans answer this question differently. The Constitution enshrines a view of America where state power is a vital counterweight to federal power, but the Constitution also contains a mechanism (Article Five) to get rid of the Electoral College if enough Americans think it no longer serves a useful purpose.  

Ben Lenhart

[Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]

One thought on “The Peoples’ Constitution—The Electoral College

  • 2020-09-10 at 10:05 am

    One of the main reasons behind the electoral college was to prevent one or two huge states from dominating the federal government. Virginia’s population in 1790 was about 740,000. The entire US population was about 3,400,000. (That’s 21.7% for those serving on the BoS and school board.)

    Do we really want California and New York choosing who runs the country? I mean, it’s not like they have performed all that well running their own states recently. Newsom has turned California into a homeless camp while making the entire state a drive-thru, open-pit BBQ. Is that what we want for Virginia?

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