By Evan Katz
With the 2016 presidential race in full swing, the perpetual debate over America’s unique electoral system has resurfaced. Opponents lambast the Electoral College as undemocratic because the indirect nature of elections renders the popular vote irrelevant, while its supporters laud the fact that the system forces political parties to have broad national support and produces clearer outcomes than a pure popular vote system. Ultimately, the Electoral College is an antiquated system that has far outlived its necessity and should be replaced.
The Electoral College, conceived as a compromise between the Federalists and Anti-Federalists at the Constitutional Convention of 1787, consists of electors that cast votes for the president of the United States on behalf of the people. Electoral votes are allocated to states by adding together the number of seats a state has in both the Senate and House of Representatives; today, 538 total electoral votes make up the Electoral College. Whichever candidate wins a plurality of votes in a particular state wins all of that state’s electoral votes, although Maine and Nebraska use an alternative method, allocating two votes to the winner of the statewide election and the rest to the winners of each of the states’ congressional districts.
To win a presidential election, a candidate must receive a majority, 270, of the electoral votes, regardless of whether or not he or she wins a plurality of the popular vote. If no candidate wins a majority of electors, the decision falls into the hands of the House of Representatives.
Not all electors are legally required to vote based on how their state votes. Theoretically, electors could completely disregard the will of the people in the state they represent and vote however they please. In fact, individual electors have done so on 157 different occasions, though 71 of those occasions can be attributed to the 1872 and 1912 elections when a candidate or his running mate died after the popular vote had taken place, but before electors officially cast their ballots. These electors, known as “faithless electors,” have yet to swing an election, but the potential for them to do so in the future still exists.
“Because general elections center on winning states, not necessarily the most votes, candidates have an incentive to spend most of their resources on the contentious swing states, leaving safe states by the wayside.”
Beyond the faithless elector issue, multiple other flaws with the system demonstrate why the United States should abandon and replace the Electoral College. First, the structure of the Electoral College alters the way candidates campaign. Because general elections center on winning states, not necessarily the most votes, candidates have an incentive to spend most of their resources on the contentious swing states, leaving safe states by the wayside.
Despite the fact that the two largest states in the nation, California and Texas, account for approximately 20 percent of the electorate, neither major party has the incentive to campaign in those states because each has a strong affiliation with one of the two major parties. No Republican would waste his or her time and resources campaigning in California because the state is a Democratic stronghold. Likewise, no Democrat would waste his or her time and resources campaigning in Texas because of its strong ties to the Republican Party.
Small states also get ignored; for example, no candidate worries about securing the three electoral votes each at stake in Montana, North Dakota, South Dakota, and Wyoming because they play an inconsequential role in election results. Instead, candidates choose to focus on electoral jackpots, states like Florida, Ohio, North Carolina, and Virginia that have large sums of electoral votes up for grabs.
A second issue with the Electoral College arises when the candidate who wins a plurality of the popular vote fails to win a majority of the electors, which has happened four times in American history. Proponents of the Electoral College would argue that the system produces a clear, indisputable victor more often than a popular vote format would because a candidate must surpass the threshold of 270 electoral votes to reach the White House, whereas a small margin of difference between two candidates in a popular vote scenario might be grounds for nationwide recounts that would prolong the election cycle and destabilize the country.
The problem with this argument is that, while the Electoral College can produce a definitive outcome, it doesn’t necessarily produce the most preferred outcome. Take, for example, the 1888 presidential election, which resulted in a definitive electoral victory by Benjamin Harrison over Grover Cleveland despite the fact that Cleveland won the popular vote by about 90,000 votes. A plurality of voters preferred the incumbent Cleveland to Harrison, but the Electoral College put Harrison in the White House.
The 1876 presidential election provides an instance where the popular vote declared a winner with a relatively clear margin of victory, but the Electoral College produced a different outcome. Despite the fact that 51 percent of voters wanted Samuel J. Tilden to lead the country, the system elected Rutherford B. Hayes with a margin of one electoral vote.
“That the people should have a direct say in who leads their country and enforces the laws is the central tenet of representative democracy…”
The Electoral College can also produce contentious elections with disputed results. Most recently, and perhaps most controversially, Democratic presidential candidate Al Gore received over 500,000 more votes than the Republican candidate, George W. Bush, in the 2000 presidential election, but lost the electoral vote, 271 to 266, with one elector from D.C. abstaining. The result of the election hinged on the state of Florida, whose 25 electoral votes had the power to swing it in either candidate’s favor. After initially calling state for Gore and then flipping it to Bush on election night, news outlets declared Florida “too close to call,” with Bush’s 1,784-vote lead at the end of the night triggering an automatic statewide recount. Bush disputed the legitimacy of the recount, taking the case to both the Supreme Court of Florida, which ruled in Gore’s favor, and the U.S. Supreme Court, which ultimately overturned the lower court’s ruling and declared Bush the winner. Under a popular vote format, Gore’s 500,000-vote lead nationally would have been sufficient to win the election without much contention. Instead, the Electoral College created a scenario that precipitated a protracted and heavily partisan political battle.
In all three of the aforementioned examples, the Electoral College elected a different candidate than did the people. That the people should have a direct say in who leads their country and enforces the laws is the central tenet of representative democracy; a system that can defy the will of the people undermines that tenet and threatens democracy writ large.
The third major issue with the Electoral College lies in its perpetuation of the two-party system, something that a majority of Americans seem to want to do away with but cannot escape. Independent candidates and third parties cannot adequately compete with the two major parties because of the winner-take-all nature of the Electoral College. For example, despite the fact that Ross Perot managed to receive nearly 19% of the popular vote in the 1992 presidential election, he failed to acquire a single electoral vote. Because of this, no viable alternative to the Republican and Democratic duopoly can establish itself in American politics. The low likelihood of a third party candidate winning any electoral votes deters voters from “wasting their vote” on a third party; many would instead prefer to vote for the lesser of two evils between the two candidates that have a legitimate shot at winning the electoral vote as a means of preventing the less desirable candidate from winning the election.
The crowd-out effect on third parties under the Electoral College could manifest itself in the 2016 presidential election. Recent polls have presumptive Libertarian nominee, Gary Johnson, polling at 11 percent in a hypothetical matchup between current Democratic frontrunner, Hillary Clinton, and current Republican frontrunner, Donald Trump. Because Clinton and Trump both have low favorability ratings, many voters are seeking a more favorable alternative. However, with the structure of the Electoral College, Johnson would struggle to win a single electoral vote, even if he manages to capture one-ninth of the national popular vote. Rather than establish the Libertarian Party as a viable alternative to both major parties that a majority of people crave, this election will likely result in more of the same, reinforcing the two-party system.
Some advocates of the Electoral College have argued that the system requires both a candidate and his or her political party to have broad national support. A regional favorite – like a Republican in the South or a Democrat in the Northeast – has zero reason to campaign a region where he or she can expect to win. Instead, such candidates must focus on campaigning in other, more contentious areas of the country, forcing them to have broad appeal that extends beyond a single region.
While this argument that no single region has the power to elect a candidate is correct, a candidate does not need to win every region in the country to win an election. Republicans rarely won states in the South in the late nineteenth and early twentieth centuries and still managed to win plenty of elections.
If anything, candidates can ignore whole regions if they realize they do not stand a chance to win there due to the winner-take-all nature of the Electoral College. A popular vote system would ensure some sort of payoff for candidates who choose to campaign in unfavorable regions because every vote swayed would matter for the national election, introducing the incentive to appeal to as many regions of the country as possible.
Despite its many flaws, the Electoral College continues to exist. The primary reason it has yet to be replaced is lack of political will. While a majority of Americans agree that the system is broken beyond repair, neither major political party has incentive to change it. Republicans benefit from the Electoral College because the system gives smaller, rural states that are solidly red disproportionately more representation than the larger states; of the five largest states by population, only Texas is consistently red. For Democrats, the relatively recent memory of the 2000 election still stings, but as it stands, the political map strongly favors the party. The large and expanding list of safe blue states has given Democrats a head start in the past few elections, lowering the number of swing states necessary for victory.
Numerous alternatives have been proposed over the years to fix or replace the Electoral College. While the choice to scrap the system entirely and replace it with a popular vote format would be the simplest alternative, it would require an enormous amount of political will to achieve. The closest the country came to abandoning the Electoral College for a popular vote format was when the Bayh-Celler Amendment was proposed during the 91st Congress between 1969 and 1971, but the amendment died in the Senate before the states could ratify it.
Another alternative would be to switch the 48 other states to the format that both Maine and Nebraska use: allocate two electoral votes to the whole state and a single electoral vote for each congressional district. While tempting at first glance, this would afford Republicans an enormous electoral advantage. States like Illinois, New York, Oregon, Pennsylvania, and Washington, consistently safe blue states in the winner-take-all system, have vast rural, red-leaning areas offset by a single blue-leaning major city (Chicago, New York City, Portland, Philadelphia, and Seattle, respectively). Although a majority of these states’ voters might lean Democratic, gerrymandering, the deliberate manipulation of congressional districts to favor a certain political party, has disproportionately inflated the number of Republican-controlled congressional districts in these states. Many of these districts would allocate their electoral votes to a Republican candidate, creating a situation where a Republican would win most of a state’s electoral votes despite the fact that the Democratic candidate won a plurality of that state’s popular vote.
Perhaps the most likely alternative to the much derided Electoral College is the National Popular Vote (NPV), an interstate compact wherein member states agree to allocate all of their electoral votes to the candidate that wins a plurality of the national popular vote, regardless of whoever wins their own statewide popular votes, provided that enough states to make up at least 270 electoral votes have agreed to join the compact. NPV is unique in that it uses the Electoral College to its advantage instead of tearing down the system entirely, sidestepping the lengthy process of amending the U.S. Constitution. If successful, NPV would render the Electoral College obsolete, as a majority of electors would always end up electing the candidate that wins a plurality of the popular vote.
Ten states plus D.C., representing 165 electoral votes, have already agreed to the compact, with another six states representing 83 electoral votes having pending legislation on the compact. The main roadblock to actualizing the NPV is that no foreseeable path to getting the requisite number of states on board currently exists. At the moment, all of the states that have already agreed to the compact are the most consistently blue states. Other Democratic-leaning states could be poised to sign on, but none have the electoral votes to make much progress toward reaching a majority (e.g. Delaware, Maine).
Swing states that receive plenty of campaign attention each election cycle would not have the incentive to sign on to the compact because it would require forfeiting their crucial role in elections. In Republican states, some conservative activists, like the Heritage Foundation’s Hans von Spakovsky, worry about the impact of voter fraud under NPV. Von Spakovsky argues that the electoral makeup of safe states under the Electoral College deters voter fraud because members of the minority party in a safe state know that, in spite of attempts to stuff voting boxes, their state will invariably elect the candidate of the opposite party. In a non-state-centric national election, however, von Spakovsky believes that such a deterrent would disappear, unleashing a wave of voter fraud. This has dissuaded the legislatures of many red states from considering the prospect of joining the NPV compact.
At any rate, the chances that the Electoral College will be abandoned or replaced any time soon are slim at best. Outside of a herculean effort by popular vote activists, the only way to overcome the political inertia of the Electoral College is for another contentious Bush-Gore scenario to occur, with the Republican Party on the short end of the stick. Such a situation could galvanize support for NPV, or any other alternative, on the political right and might create enough momentum to topple the system. Otherwise, the road to 270 will remain the only pathway to the White House for the foreseeable future.