The Finely Tuned Electoral College

The 2016 election was the fifth time in history that the U.S. elected a President who lost the popular vote. The last time that happened - Bush v. Gore in 2000 – a serious movement was begun to get rid of the Electoral College.  Tonight, I’ll review the reasons we have the Electoral College and bring you up to date on the main effort to elect future Presidents by popular vote.

Article II, Section 1 of the U.S. Constitution set up the first version of the Electoral College where, over-simplifying a bit, the candidate getting the majority of the electoral votes became President and the runner-up became Vice-President.  But there were problems with the elections of 1796 and 1800.  In 1796, the President and Vice-President elected under this system were from different political parties, which didn’t work out so great.  And in 1800, the election went to the House of Representatives where it took 36 ballots to get Thomas Jefferson elected President.  The 12th Amendment was ratified in 1804 to refine the process. 

Lots of reasons have been put forth why we have the Electoral College and why it’s a good thing:

• Some say it’s because the Founders were suspicious of direct democracy which they feared would descend into mob rule.  Instead, they gave us a Republic and put a buffer between the electorate and the selection of a President.  The Electoral College could provide a final check and prevent a tyrant or someone who was unqualified from taking office.
• Others say we have the Electoral College because the small colonies felt overwhelmed by the large colonies and needed some inducements to ratify the Constitution and enter the union.  So the small states get two U.S. Senators, regardless of population.  They are also overrepresented in the Electoral College because the formula for selecting the 538 electors depends on the size of each state’s congressional delegation, including its two Senators. You often see in left-wing articles, statements like ‘Wyoming voters have ten times the voting power of people in California.’  But if smaller states were not overrepresented in the Electoral College, New York and California could conceivably decide all our Presidents all by themselves.
• The Electoral College encourages nationwide campaigning.  Instead of just going for votes in big cities, candidates have to gather support from all types of areas and all regions of the country. George Bush arguably won the 2000 election because he unexpectedly flipped one state – West Virginia.  Its four electoral votes put him over the top.  With the Electoral College system, political parties ignore big chunks of the country at their peril. 
• The Electoral College makes it harder to steal elections.  Cheaters would have to corrupt electors in 13, now 50, different places.  Also, they would have to predict which state’s electoral votes would be decisive, but that’s next to impossible. In a democracy, cheaters could steal votes in one place, say, Chicago, and change the outcome for the entire country.  
  
  

Despite all these reasons, there is a strong movement afoot to abolish or negate the Electoral College and elect Presidents by national popular vote.  This is part of the trend toward more direct democracy that has been ascendant for 100 years.  This trend gave us the 17th Amendment under which U.S. Senators are elected by popular vote instead of being chosen by their state legislatures.

Today, the National Popular Vote Compact has gained ground since the last time I spoke to you about it.  Under the compact, states give their Electoral College votes to the candidate who wins the national popular vote, not the state’s popular vote.  The compact has been joined by 11 blue states and the District of Columbia which, together, have 172 electoral votes, nearly two-thirds of the 270 votes required for the compact to take effect.  The compact has been called an end-run around the Constitution because, with 270 electoral votes, future Presidents would effectively be chosen by popular vote, not by independent electors as they are today. 

Many fear that no conservative President could ever be elected again if the compact picks up a 270-vote majority.  However, the results are not a foregone conclusion.  First, the compact cuts both ways.  In 2004, under the compact, California’s electoral votes would have gone to George W. Bush, even though John Kerry won 1.2 million more votes in California than Bush did.  This is because Bush won the national popular vote that year.

Also, you can bet that people would sue to prevent the National Popular Vote Compact from taking effect, and the Supreme Court would ultimately have to decide the issue.  States can join compacts under Article I, Section 10 of the Constitution, that’s not in dispute.  But some have argued that congressional consent would have to be obtained before the compact could be enforced and any implementation of the compact without that consent would immediately be challenged.  Others argue that what the compact is attempting to do can only be done by constitutional amendment.  I could even see small states attempting to secede from the union in the event the compact takes effect, because it would undo one of the inducements that drew them into the union in the first place.  It could be argued they have settled expectations in this area that cannot be undone by a conspiracy of larger states.

Regardless of what you think of the Electoral College, there’s no denying that it has given us seamless transitions of power without conflict or bloodshed throughout our entire history – and that’s no small feat.  Supporters of the National Popular Vote Compact and direct democracy should think twice before they upset the tried and true, the carefully balanced design of the Electoral College.