With the presidential election less than 30 days away, the age-old debate on the Electoral College has surfaced once again in an already divisive election season. The Electoral College is fresh on the minds of Americans after the 2016 election, where the former first lady and secretary of state, Hillary Clinton, won the popular vote, but President Donald Trump ultimately won office with the majority of electoral votes.
“It understandably offends our sense of ‘one person, one vote,’ right?” said Kevin Pybas, a professor of political science at Missouri State University. “Because that, for the most part, defines every other national election. So I understand that it seems like we're past the Electoral College, and it's archaic and a relic of a long lost age, but I still think it does important things.”
Academics, politicians and the like have called for an end to the Electoral College in an effort to make voting more equitable, while others defend the institution.
A recent poll conducted by the Gallup Organization from Aug. 31 to Sept. 13, showed that 61% of Americans support abolishing the Electoral College. A press release by Gallup indicated that it spoke with a “random sample of 1,019 adults” via phone interviews.
For those who may have been dozing off during their history teacher’s lesson on the Electoral College in high school, here is a refresher. TMRW spoke to two experts for more perspective on the complex system.
For starters, the name is deceptive. Contrary to what it may suggest, the Electoral College is not a group but rather a “process” that consists of the “selection of electors, the meeting of the electors where they vote for President and Vice President, and the counting of the electoral votes by Congress,” according to The National Archives and Records Administration.
As stated in Section II of the Constitution, each state is granted a number of electors equal to the sum of the senators (two) and representatives (dependent on population) it has in Congress. The nationwide total is 538 electors, meaning that in order for a candidate to decisively win the Electoral College, he or she must win a majority of the votes, or at least 270. Under the 23rd Amendment, the District of Columbia is also allocated three votes and treated like a state in the Electoral College.
Tim Berg, an Arizona lawyer who filed an amicus brief for a U.S. Supreme Court case on “faithless electors,” added that one of the biggest misconceptions about Election Day is that voters cast their ballots for the candidates.
“The general public, and even people who are well-educated and into politics or the law, kind of think when they go into the booth to vote or when they do mail-in voting, that they're voting for Donald Trump or Joe Biden,” Berg said. “In fact, you're not. What you're voting for is this slate of electors.”
On Election Day, voters cast ballots as part of the popular vote — the term referring to the votes cast by the registered and qualified public. In the prior spring and summer seasons, state political parties nominate a slate of electors through various methods. Political parties tend to select people to be electors that are active in the party and individuals they want to honor, Berg said.
There are very few qualifications barring a person from being an elector. However, no “Senator or Representative, or Person holding an Office of Trust or Profit under the United States” can be appointed an elector, according to the National Archives. After the Civil War, Section 3 of the 14th Amendment was added, which states that anyone engaging in “insurrection or rebellion” should be excluded from being considered as an elector.
Once the popular vote has been counted in each state, a victor is declared, indicating which slate of electors will cast their votes in favor of their party’s candidate. All but two states have a “winner-take-all system.” For example, that means if the Republican Party wins Kentucky’s popular vote, all six of its electoral votes belong to the Republican electors.
The two outliers, Maine and Nebraska, function on a proportional distribution system, whereby states can award electors to more than one candidate.
Once the dust has settled from the election and the country has determined its “president-elect,” the job of the electors really begins. On the first Monday after the second Wednesday in December (yes, that's how it's written), electors meet in their respective states and submit separate ballots for the president and vice president. Then, during a joint session of Congress, the votes are counted. On Jan. 20, the president-elect takes the oath of office at the inauguration, effectively becoming the president of the United States.
Both Pybas and Berg said that the Electoral College has its faults, but also recognized that it serves a valuable purpose.
During the Constitutional Convention, Pybas explained that the Founding Fathers were faced with the difficult decision of deciding the election process of the chief executive. They eventually adopted the Electoral College after concerns of placing the election in the hands of an uninformed public.
“It was a compromise,” Pybas said. “It’s the states continuing to play a role in national politics.”
He added that the electors were initially independent but have now become entrenched in the political parties.
Some argue that not everyone’s vote is equal though. Most cite the fact that in California, one electoral vote is equivalent to about 677,345 voters, but Wyoming has only 188,000 voters per electoral vote. How is that fair?
“The purpose of the original compromise to have a population-based House and a state-based Senate, was to recognize that big states and small states both had a stake in the national government,” Berg said. “And I think that still continues to this day. I think the electoral college has some of the same benefits to it. You have people who live in smaller states feeling like they're still part of the national conversation.”
But Berg has also been involved in lawsuits tied to the issue of “faithless electors” — electors who do not abide by the popular vote and cast their ballot for a different candidate. In 2020, 33 states plus Washington D.C. require electors to vote for the pledged candidate in line with the results of the popular vote.
Throughout the history of America, no faithless electors have altered the outcome of an election, but in the 2016 presidential election, 10 electors deviated from voting along party lines; the most since 1872.
To further incentivize electors, some states added penalties for anyone in opposition of the requirement. A Washington statute held that if an elector did not vote for the person they were pledged to, they were fined. Meanwhile, in Colorado, the person who deviated was simply replaced by another elector. These laws were challenged in a pair of Supreme Court cases.
In the recent 2020 Supreme Court case, Colorado Department of State v. Baca, Berg was among a number of members with the National Conference of Commissioners on Uniform State Laws who contributed to an amicus brief in support of laws that can remove and replace electors if they don’t vote for the pledged candidate.
With both cases consolidated, the Court unanimously held that laws ensuring electors vote for their pledged candidate were constitutionally protected.
When asked if the United States should dissolve the Electoral College, Pybas raised a key concern in why he would not hasten to do so.
“I would say that the more diverse a country is, the more sense the electoral college makes,” Pybas said. "But my concern is that presidential campaigns would just focus on the population centers in a popular election — which, that of course, would make sense — but we're geographically diverse and that geographic diversity corresponds with other forms of diversity. So it requires coalition building.”
Pybas said people are likely concerned about the Electoral College since there have been two recent instances in which the victor of the Electoral College was not the popular vote winner. This happened in the 2000 race between President George W. Bush and Vice President Al Gore, and again for the 2016 race between President Donald Trump and Secretary Hillary Clinton.
Although there have been such instances, Berg also said that 2000 and 2016 were anomalies among the nation’s elections. The Electoral College serves an important purpose, but likely not the same one the Founding Fathers envisioned, Berg said, arguing the results "create a stronger mandate."
He added that “if somebody wins 300 electoral votes to 180 something, then you have more of a sense of the person's been elected by the (entire) country, even if they won by (only) 1% or 2% of the popular vote.”
"I'm not sure that's what Hamilton, Madison, Franklin, the folks at the Constitutional Convention thought they were doing or even the writers of The Federalist, but I think as our politics have changed (it's purpose has changed)," Pybas said. "In 1796, there really weren't political parties, now there are. I still think it serves some function."
For the Electoral College to be abolished, Pybas said a constitutional amendment would have to pass through Congress, which is unlikely.
Although faithless electors have not swayed an election yet, states have been banding together to ensure there are no issues in 2020. Essentially, Pybas said the compact function to “bind” states to their electors to vote for the nationwide popular vote winner “irrespective of what happens in the state.”
Currently, 15 states plus Washington D.C. entered into the National Popular Vote Interstate Compact, totaling 196 electoral votes, according to the New York Times. Pybas said the compact is a method to sidestep a formal amendment to the Constitution, and still questions the constitutionality of such an action.
Meanwhile, Berg firmly believes the winner of the Electoral College will also be victorious in the popular vote this year.
“I think this is perceived as an incredibly important national election with a pretty clear choice between the two tickets,” Berg said. “And, boy, if I were an elector, it would take more courage than I have to go in there saying I was a Biden elector and I was going to vote for Trump.”