The Electoral College from all sides...

There is an on-going, often passionate debate over whether the electoral college system should remain in effect or whether it should be modified or abolished. Primary reasons/arguments in favor of the current electoral college system include the following: (1) It is consistent with the concept of federalism and US traditions. (2) It reflects the Founders desire to avoid direct democracy in favor of a republic. (3) “Small” states are given more weight (per capita) because each state has 2 senators. (4) The majority of the time, the results are non-controversial and consistent with the popular vote, and (5) it often overstates the popular vote and gives the appearance of a larger presidential mandate which many believe renders the vote more legitimate and less controversial. Primary reasons/arguments to modify or abolish the electoral college include the following: (1) The candidate who receives the most popular votes can lose the election. Two of the last five presidential elections illustrate this. This is the most salient reason to modify or abolish the current electoral college system. (2) It can create the appearance of a larger presidential mandate than is warranted. Like the first reason, the popular vote and the electoral college votes are not in alignment. Examples include: in 1988 Bush received 53 percent of the popular vote yet 79 percent of the electoral college vote; in 2012 Obama received 51.3 percent of the popular vote yet 61.7 percent of the electoral college vote; and Trump received 46.1 percent of the popular vote yet 56.5 percent of the electoral college vote in 2016. In all of these cases, the President can claim a larger mandate to govern than is warranted by the popular vote. Note as I stated in the previous paragraph that some argue that this is a strength of the electoral college. (3) It violates the one person one vote principle established by the Supreme Court in Baker v. Carr (1962). (4) Too much power is given to so-called “swing states.” In 2016 Trump and Clinton spent the vast majority of their campaign time and money in four states - Florida, Pennsylvania, Ohio, and North Carolina; and (5) too much power is given to the “larger” states. Currently, six states control 191 electoral votes. Candidates can easily ignore the “small” states and it is common for presidential candidates to spend little to no time in the “small” states. The so-called “faithless elector” was another criticism of the electoral college system until the Supreme Court ruled unanimously in 2020 in Chiafalo et al v. Washington that electors must vote according to the laws set forth by the state, in other words, they cannot simply vote for whomever they want to be president. Alternatives to the Electoral College System. Some have suggested that the states could modify the electoral college system to more closely reflect the national popular vote or to eliminate the possibility of a candidate winning the election but losing the popular vote. Most scholars argue this can be done without a constitutional amendment. All but two states (Maine and Nebraska) have a winner-take-all system for awarding electoral votes to a candidate. For example, Trump won the popular vote in Florida in 2016 and received all of its 29 electoral votes. There are basically three modifications of this system that have been suggested. One is the district plan that is actually used by Maine and Nebraska today. Two of the state’s electors vote for the candidate who receives the most votes in the entire state and the other electors, representing the congressional districts in the state, vote for the candidate who receives the most votes in his/her congressional district. For example, in 2016 Clinton received three and Trump received one of the total of four electoral college votes from Maine. A second plan is based on proportional representation. Simply put, if candidate A receives 60 percent of the votes in a state, he/she will receive 60 percent of the state’s electoral votes and candidate B, who receives 40 percent of the state’s popular votes, will receive 40 percent of the state’s electoral votes. Both of these modifications would bring the electoral college votes more into alignment with the national popular vote and would not overstate the mandate to govern. The third modification (for more information see the National Popular Vote Interstate Compact) which already has the legislative support of 15 states and the District of Columbia is that the electors of each state will be required to vote for the candidate who wins the national popular vote rather than the state popular vote. This would completely eliminate the possibility of electing a president who did not receive a majority of the national popular vote. The final alternative to the electoral college system is a simple direct election. This would require a constitutional amendment. The arguments in favor of a direct election include: (1) Since all governors and virtually all elected positions in the United States are determined by a direct vote of the people, the election of the president should not be any different. (2) It is more democratic than the electoral college system. Some have suggested that in the case of more than 2 candidates running for president, the winner would have to receive at least a certain percentage of the vote (say 40 percent). Should the top candidate not receive the minimal percentage of the vote initially, there would be a runoff election between the two candidates that received the most votes, and (3) the direct election method will take states completely out of the presidential election equation and guarantee that the one person one vote principle will be upheld. Criticisms of the direct election method include the following: (1) The fear of fraud or numerous nationwide recounts that may give the perception of an illegitimate election and (2) the candidates will focus primarily on populous urban/suburban areas to the neglect of the remainder of the country. The current research on voter fraud concerning direct election finds that fraud is rare and is vastly over-stated. Recounts are also very rare. From 2000 to 2015, in a study of more than 4687 state wide direct elections, a total of 27 or .057 percent resulted in a recount (FairVote). It is extremely important to note a distinction between the electoral college system and its proposed modifications and a direct popular vote. In effect, it is the states and the District of Columbia that select the president in the current electoral college system and its proposed modifications. In fact, there is no requirement in the Constitution that the people actually vote for the president in an election. It is truly a federal (federalism) system. If the people select the president in a simple direct election, states would no longer have a say in a direct election. It is a true national election. I note that in a May, 2020 survey by the Pew Research Center, 58 percent of the people in the country preferred the direct election of the president over the continued use of the electoral college system. Not surprisingly, an overwhelming majority of Democrats support a direct election while a majority of Republicans are in favor of keeping the electoral college system. For more information see National Popular Vote Interstate Compact, fivethirtyeight.com (Nate Silver), 270towin.com, FairVote, Larry Sabato at centerforpolitics.com at UVa, Brennan Center “The Myth of Voter Fraud,” or any introduction to American government college text. Also see the US Constitution (Article 2, section 1, clauses 2, 3, and 4) and the 12th Amendment.