First It Limits Your Choices and Then It Changes Your Vote: How the Electoral College Undermines the Framers Intent and the Republican Form of Government.

 George W. Bush in 2000 and Donald Trump in 2016 won the electoral college with the second highest number of votes, but not for the reason most people think.  The popular idea is that the electoral college give greater weight to smaller, rural states so that large, urbanized states like New York and California cannot dominate presidential elections. While electoral votes are somewhat weighted toward smaller population states, that did not make a difference in 2000 or 2016, or any other recent election for that matter.  In fact, the reason a second place finisher can win the electoral vote without winning the popular vote isn’t even found in the Constitution. And more than that, it has also worked to deny the potentially most popular candidate the popular vote as well.

So, what is the system we have, how did we get it and how should it be reformed? I’ll take that three part question is in, well, these three parts:

Part I

The current system is actually both Constitutional and the law of individual states.  The U.S. Constitution does not grant any right to citizens to vote for the office of President. Rather, it allocates to each state legislature the ability to choose electors by any method they decide.  The number of electors each state has is equal to the number of members of Congress from that state: two Senators and each member of the House of Representatives. House members number exactly 435 and are apportioned roughly by population with no state getting less than one. The District of Columbia, according to the 23^rd Amendment gets the same number of electors as the least populous state, three. That makes 538 electors which makes 270 the magic number of electoral votes needed to win the Presidency. If there is a tie vote, then… well let’s save that for Part II, The Election of 1800!

All 50 states now choose electors by popular vote. Voters never see the names of the electors they are choosing. They only see the Presidential candidate those electors have pledge to vote for.  48 of 50 states award all of their allotted electoral votes by popular vote with the winner being the one with the greatest number of votes no matter how small that percentage is. Maine and Nebraska each have a system that apportions electors between candidates. Because the Constitution specifies a single one day for the election of other federal officials, all states hold their vote for President and Vice President on that date every four years. Then, on the first Monday after December 12 the electors meet at their state's capital to cast their vote.

What if an elector is chosen, but then on the first Monday after December 12 at their state's capital they decide to vote for someone other than the candidate they previously swore to support? This is the so-called faithless elector. In 18 states, they are by law free to do so, but in the other states they may be required to vote for their pledged candidate or possible may vote as they choose, but be required to pay a fine. As a practical matter, electors have remained so faithful that no election has ever been in jeopardy of being changed by faithless electors.

Electoral College Inversions

The most apparent way that the electoral college can fail to reflect a democratically elected president is when the winner of the popular election loses to another candidate who wins the electoral college.  This is sometimes called an “inversion” and it has happened four times 1876, 1888, 2000 and 2016.  In each instance the inversion did not occur because smaller states had greater electoral representation, but because the second most popular candidate won enough states by a only plurality of votes. Take 2016 where Trump won seven states and one congressional district of Nebraska with less than 50% of the total vote. (50%+ votes being divided among Hillary Clinton and other candidates). While a majority of voters in those jurisdictions cast their votes for someone other than Trump, he nevertheless took 100% of the available electoral votes meant to represent those voters. That was a total of 108 electoral votes and it made the difference in his win. This leads to the question; would Trump have won a runoff between himself and Hillary Clinton for those 108 electoral votes? The speculation on this among experts and academics is mixed, nevertheless the question certainly hangs over the Electoral College, is it a democratic process or a system that can be strategically gamed to subvert popular choice.

In the other recent inversion vote outcome, there is no expert or academic doubt that 2000 popular vote winner Al Gore would have won in a runoff without third party candidate, Ralph Nader.  The result of which would no doubt have affected the course our country took in the subsequent four years.

Blocking Out Third-Party Choices

Ralph Nader’s candidacy in 2000 was controversial because voting for Nader instead of Al Gore was said to help Bush win.  Many Nader supporter resented the fact that they were in a sense shamed for voting for the candidate they preferred most.  Others who preferred Nader voted for Gore because they didn’t want to “waste” their vote on a candidate who was sure to lose.  Still others criticized Nader for running in a race where his only influence would be as a “spoiler.” The real problem here is not third party candidate, which should rightly be part of any democratic process, but rather that allowing a plurality of votes to win, sets up a system when third party candidate support cannot be accurately reflected.  In a runoff, where no candidate can win until a 50% winner is achieved, third party candidates are not discouraged to run and their supporters can freely vote for their first choice without fear that they will be unable to vote for their second choice in a later runoff between the top candidates.  This is why no other democracy chooses it top leader with a plurality vote.

President who have won only by virtue of winning the plurality and not the majority of the vote in crucial states is increasingly frequent. 2016 isn’t the most extreme example of where the electoral system has disenfranchised the majority of voters, but it is still fresh in our memory. Bill Clinton won this way over George H.W. Bush and Bob Dole, Ronald Reagan beat Jimmy Carter and Walter Mondale. The reason for this is that the voters are closely divided between the two major parties allowing the presence of a third-party candidate with even single digits in the points to affect the election. The result of the current system is that it does not require the support of a majority of voters to elect the President. We can only speculate that Ralph Nader was the reason Bush became a president and won a second term. The same with John Anderson enabling Reagan and Ross Perot for Bill Clinton. In a country as closely and as deeply divided political as the U.S. is, a President who never achieves the support of a majority of the electorate worsens divisions among the voting population.

The worst example though must be the election of 1844, though not an “inversion,” would have elected Henry Clay over the virulently pro-slavery, pro-Manifest Destiny James Polk. Third party abolitionist James Birney drew votes in New York away from Clay sufficient to give all of that large state’s electoral votes to Polk. Polk clearly did not reflect the direction most Americans wanted to take with the Country resulting in the Mexican American War and as history would show, led us to the Civil War, the most ruinous series of events in our nation’s history.

Coming up, what was the original intent of the Electoral College, the modifications to it, and how we can reform the system even without amending the Constitution?  I’ve avoided footnotes, but here are some highly informative references.  If you have questions about specific points I’ve made, please message me.

Professor Ned Foley on the Electoral College https://equalcitizens.us/professor-ned-foley-on-the-electoral-college/

Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College https://www.amazon.com/Presidential-Elections-Majority-Rule-Jeffersonian/dp/0190060158

https://en.wikipedia.org/wiki/2000_United_States_presidential_election

https://en.wikipedia.org/wiki/2016_United_States_presidential_election

https://www.npr.org/2016/11/02/500112248/how-to-win-the-presidency-with-27-percent-of-the-popular-vote

The Election of 1844 Explained https://www.youtube.com/watch?v=GUZhMWPRt1c

https://www.salon.com/2020/07/18/the-electoral-college-has-a-surprising-vulnerability-_partner/