Each week we feature an article from Capital Commentary, a weekly current affairs publication by the Center for Public Justice. To read more, visit http://www.capitalcommentary.org.
The American public’s interest in the Electoral College system comes in waves. Most of the time, it is a topic for civics or political science classes, garnering minimal attention from the general public. But during an election year, interest in the Electoral College swells to a moderate level, since coverage of the general election focuses (quite rightly) on which candidate will reach 270 votes and so win the White House. But when the Electoral College system threatens to allow (or does in fact allow) a president to win office without a majority of the popular vote, public attention reaches far greater heights—a veritable tsunami.
But such interest is the exception to the rule. As we conclude this season’s primary elections—but before the general election really gets underway—it is fitting that we take stock of the Electoral College system. Is the system worthwhile? Is it just?
Article II, Section 1 of the US Constitution states: “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….” In matching the number of each State’s congressional delegation, each state enjoys a minimum of three electors. As revised by Amendment XIIi, the Constitution goes on to describe the procedures for the Electors to follow: “Electors shall meet in their respective states and vote by ballot for President and Vice-President…,” “they shall make distinct lists of all persons voted for… and the number of votes for each….” These lists are then signed and certified, then sent to the President of the Senate, who counts them in the presence of both houses of Congress. “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.” The text goes on to provide that the Vice President be selected in a similar manner, save that the Senate selects a winner in the event that no candidate for Vice President receives a majority in the Electoral College.
As students of history, the framers of the Constitution knew of democracy’s dangers. They were aware that simple majorities could act hastily or ill-advisedly, and at times without regard for the rights of minorities. But as republicans, they were also committed to the unique legitimacy of government by the consent of the governed. As Hamilton puts it in Federalist 68, “the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.” Thus, they designed the Electoral College to resist direct election and consolidation of the whole nation into a single whole. Instead, they incorporated federalism’s “vertical” separation of powers between different levels of government and maintained distinctions among states.
The result made selecting a president and vice president both national and federal—involving the people as a whole and the states as political units. As James Madison states in Federalist 39: “The 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 coequal societies, partly as unequal members of the same society.” Like many other aspects of the government designed by the Constitution, the Electoral College balances competing values shared by the framers.
Under this system, modern elections function such that on election day, voters in each state vote for electors, rather than candidates, who are pledged to support a particular candidate. Using their constitutional authority to determine the manner of appointing electors, all but two states use a “winner-take-all” system, assigning all of that state’s electors to support whichever candidate received the majority of votes within the state. The total number of electors is 538, meaning that a candidate needs 270 electoral votes to win the presidency.ii
Critiques of the Electoral College
The Electoral College has been the subject of a number of critiques over the years. Perhaps the most prominent one is that the current system allows a candidate to win the presidency with fewer popular votes than a losing candidate—a situation that has occurred in 1824, 1876, 1888, and 2000.iii Critics thus accuse it of falling short of democratic norms, since it does not always rigidly adhere to majoritarian principles, at least as regards individual voters considered as a national population.
A related critique is that the Electoral College violates the principle of voter equality. Because the Electoral College incorporates principles of federalism and assigns every state at least three electors regardless of its population size, electors from lower-population states represent fewer people than do electors from more populous states. Thus, each elector from the state of Wyoming represents fewer than 200,000 people (three electors, population c. 584,000), whereas each elector from Florida represents more than 650,000 people (twenty-nine electors, population c. 20,000,000).iv So each vote cast in a small state like Wyoming carries substantially more weight than a vote cast in a larger state.
Still other critiques of the Electoral College include the following:
- Its seeming mistrust of pure democracy and potentially elitist alternative, buffering the people from the actual choice of the president.
- Its apparent sorting of states—largely due to the winner-take-all format—into safe, “spectator” states (like California or Indiana) that can be ignored, and “battleground” states (like Ohio or Florida) that receive an undue proportion of candidates’ attention.
- Its effect of discouraging third-party candidates, who have very little probability of winning a single electoral vote in a winner-take-all system. For example, Ross Perot ran as an independent candidate in 1992. Although he received about 19 percent of the popular vote, he did not win any electors. The winner-take-all system generally leaves minority voters in “spectator” states with a sense that their votes do not count.
Given these concerns, what are we to make of the Electoral College system? Is it a hopelessly outdated, undemocratic, and anachronistic system for presidential elections? Many believe that it is; indeed, a 2011 Gallup poll found that 62 percent of Americans favored amending the Constitution to make presidential elections a matter of a national popular vote. While such an amendment is highly unlikely, other reforms are regularly part of public discussion and action.
One prominent reform effort is the National Popular Vote (NPV) movement. Rather than altering the Constitution, the NPV movement seeks to work around the Electoral College to secure the presidency for whoever wins a majority of the national popular vote. The effort consists of state legislatures using their constitutional power of selecting electors to legally commit in advance that they will align all of their state’s electors with the national popular vote. Ten states (plus Washington, DC) have passed legislation committing them to the NPV—contingent on enough states joining the NPV to make it effective (a minimum of 270 electoral votes).
If implemented, NPV signatory states would commit their electors to the national popular vote winner without regard for how each state’s population voted. Thus, had the NPV been operative during the 2004 election, the state of New York (a 2014 NPV signatory) would have given its then-thirty-one electoral votes to George Bush—despite the fact that 58 percent of New York’s population voted for John Kerry. While the goal is understandable, this does raise questions about how representative such a system is with respect to individual state populations. There are also legal questions about its constitutionality.v Still, it is not clear that the NPV system is likely to reach its 270 elector threshold anytime soon, so these questions are more theoretical than practical. Thus far, NPV signatories are “blue” states that face a steep uphill climb in convincing current battleground states to give up their influential role in the existing system.
Two states—Maine and Nebraska—currently employ an alternative reform system known as a “Congressional District Plan” (CDP). Instead of a winner-take-all approach to states’ electoral votes, the CDP allocates one electoral vote to the winner of each congressional district’s popular vote, allowing a state to split its electors between candidates. The two additional electors (parallel to the state’s senators) are assigned on the basis of the statewide popular vote. Advocates maintain that the CDP allows more nuanced and proportional allocation of votes than the winner-take-all approach and could increase voter turnout, though critics worry about the impact of political gerrymandering on presidential elections. Thus far, the impact of this reform appears limited; since Maine implemented the system in 1972 and Nebraska in 1996, only Nebraska has ever divided its electors—and that only once, in 2008.vi Otherwise, all of the congressional districts in each state have voted the same way in each election.
Critics of the Electoral College system are concerned with questions of justice—especially as regards voter equality—an important set of legitimate concerns. Given the systematic violations of voter equality that have occurred in the United States, particularly on the basis of race, this question should never be absent from our assessments of electoral law.
However, it is not clear that systematic or invidious discrimination is present in the design of the Electoral College system. Instead, the existing system is itself deeply concerned with justice, but justice construed in broader terms than rigid equality of individual voters. To be sure, the current system accounts for voter equality, since the vast majority of electors are assigned on the basis of population. However, this system also accounts for principles of federalism.
What goods, we might ask, does federalism provide in this context? It maintains a concern for states as communities of interest, particularly less populous states with a significant proportion of rural communities. In this sense, it accounts for the same principles that inform the structure of the Senate, magnifying the voices of communities that might otherwise be easily disregarded. Far from presenting an archaic concern, the justice of protecting sub-national communities of interest is a prominent issue in contemporary multiculturalism literature.vii Moreover, the voice of states as states is particularly relevant in electing a vice president who will become President of the Senate, the body where states retain equal voice.
More controversially, recent events have led at least one commentator to observe that the Electoral College might yet save citizens from making a grave mistake. Derek Muller has speculated that state legislatures might, in extreme circumstances, be justified in using their constitutional authority over electors to direct them away from a dangerous candidate who is, nevertheless, preferred by the citizens.
Supporters of the Electoral College system point out other prudential benefits, including producing a clear winner in presidential elections, thus magnifying legitimacy and contributing to political stability. Likewise, advocates see the broad support required for success in a two-party system as helpful in producing moderation and compromise from candidates.viii Changes to make it more permeable to third-party challengers would likely temper these benefits, and could result in more elections being decided by the House of Representatives or potentially by a series of runoff elections.ix Finally, a change to a more national process could heighten the impact of voting fraud in any single part of the country—impacts which are now limited to individual states.
The Electoral College system is not perfect. Indeed, reforms may help moderate its imperfections. But arguments focused on individual voter equality as the sole benchmark of justice have the effect of obscuring reality. Instead, like most of politics, the structure of the Electoral College reflects a set of prudential judgments made in balancing competing goods. As Hamilton reflects at the end of Federalist 68: “the [system for] election of the President is pretty well guarded. I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.”
- Jesse Covington is Associate Professor of Political Science at Westmont College. He is an alumnus of the Civitas Program and a Trustee for the Center for Public Justice.
i Amendment XII revises this process such that the Vice President is no longer the runner-up in the Presidential contest.
ii The District of Columbia, while not a state, receives three electors.
iii In reality, these four elections are not all fully comparable, as two of the elections were decided by the House of Representatives as a result of no candidate obtaining a majority of votes in the Electoral College.
iv Numbers derived from the U.S. Census Bureau, http://www.census.gov/quickfacts/map/PST045214/56. These numbers change when considering voting-eligible population and voting-age population. See Ryan Cooper, http://theweek.com/articles/447714/which-states-screwed-worst-by-electoral-college. See also http://www.slate.com/articles/news_and_politics/map_of_the_week/2012/11/presidential_election_a_map_showing_the_vote_power_of_all_50_states.html
vi Nebraska is currently moving to return to a winner-take-all approach, though the bill is still moving through the legislative process. See http://www.omaha.com/news/legislature/legislature-advances-bill-to-restore-nebraska-s-winner-take-all/article_0467141a-faca-11e5-a3c0-8f6960bebe52.html
vii See, for example, Chapter 6 (“Justice and Minority Rights”) of Will Kymlicka’s Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford University Press. 1995.
viii Tara Ross observes: “The Electoral College requires moderation, compromise, and coalition building from any candidate before he can be successful. Direct elections and a system of runoffs discourage such behavior.” “The Electoral College: Enlightened Democracy.” http://www.heritage.org/research/reports/2004/11/the-electoral-college-enlightened-democracy#pgfId-1139116
ix Particularly when only the offices of President and Vice President are at issue, it is difficult to make an argument for a more proportional system of representation—since the final outcome is so numerically limited.