Time to go to the Electoral College

A long while back, in the series entitled “Everything You Know is Wrong,” I covered that unique American institution, the Electoral College. We are about to experience a very close popular election, so close that some models have it coming out with the electoral college results being 270-268 or even 269-269 (and I’ll cover what that means, too, heaven forbid!). So it’s time for a refresher: why did the founders create it, how has it worked historically, what does it do today, how will it play out in this year’s election, and finally why we should keep it (anyway).

First off, there is no such thing as the “electoral college” in the US Constitution. What?!?! The document solely refers to electors, and the tradition of referring to the system as the “electoral college” is just that: a tradition. The system is simple: states names slates of electors, who gather and submit their state’s electoral votes (based on the total number of federal senators and representatives) for a candidate. The candidate which gets a simple majority (currently 270 electoral votes), wins. So if Virginia has eleven representatives and two senators, they have thirteen electoral votes. The state names thirteen people as electors, and they gather and vote as directed in the Constitution.

During the drafting of the Constitution, there was a serious and prolonged debate about how to choose the President. One group wanted the Congress (in total) to select the President. Another group wanted a direct election of all voters. There were significantly more people among the drafters who feared direct democracy, and much of the document is written to diffuse power and prevent simple majority rule. But all those working on the document saw the power of a presidency elected by the voters (even if only wealthy landowners were voting at that time).

The compromise was to create the electors, which numerically represented the Congress but were chosen from the people. In fact, current office holders were proscribed from being electors. The concept was a group of intelligent, responsible men (they were always men, back then), who would represent “cool heads” should a demagogue arise to whip up a democratic majority, or a foreign power use money to bribe votes. The decision on how to select the electors was left totally to the states, in line with the feeling at the time that the country was the United STATES (note the emphasis).

There is a recent popular myth that the electoral college was designed to support slavery, which is based on the idea that slaves were counted as 3/5 of a person for the purposes of proportional representation. This confuses several things. The electors are based on proportional representation, but not because of slavery. The big worry among the states was that Virginia and New York, the most powerful and populous states at the time, would gang up to share the presidency to the exclusion of all others. Basing electors on congressional representation gave small states a slightly greater influence, especially as more small states joined the nation. But the issue was always big versus small, not slave versus free.

The founders’ vision for the electors never came to pass. They never sat in judgment after the election, keeping things from getting out of control. And since states controlled how they select the electors, for a long time the state government simply appointed them. There was not then (and is not now, believe it or not) any requirement for the state to actually hold a vote of the people. States could (and New York did until late in the 18th century) simply choose who the electors were, knowing full well who those electors would then choose for President!

The original electoral college system’s flaws because quickly apparent. The candidate getting the most votes became President, the candidates getting the second most votes became Vice President. Really. It was even worse, as the electors had two votes and were supposed to vote with these for both offices (President and Vice President). The nascent parties schemed to have their leader get the most votes, their other preferred candidate the second most. And there were incidents of horse-trading votes, missed communication (via horseback, remember), and other political shenanigans. Remember, this was before parties were really significant, and the founders’ thinking was such candidates would still work together.

The especially heated 1796 Adams-Jefferson race left the rivals as President and Vice President, demonstrating what could go wrong. In the 1804 race, the results were reversed, and all concerned knew something had to change. Congress passed and the President signed the Twelfth Amendment, giving the electors a single vote toward a party “ticket” comprising a Presidential and a Vice Presidential candidate, which is roughly what the system still is today.

Electors have at times refused to vote per the winner of the popular vote in their state, and some states have passed laws to mandate the vote, although the constitutionality of these laws is undetermined. The Supreme Court had held that while states hold the right to determine the slates of electors, they can’t bait-n-switch the results. If they start out an election directing the electors to enforce the popular vote result in that state, the state government cannot later choose just to appoint its own electors. Most states have a winner take all approach, giving the popular vote victor in that state all its electoral spoils. Two states, Nebraska and Maine, divvy up one elector to a single voting district, the rest to the winner of the state popular vote.

The net effect of the electoral college system is to give smaller states a little more power in Presidential politics. But it is wrong to overstate this effect. In the end, a state like California determines more electoral votes (54) than the fifteen smallest states combined (AK, HI, ID, MT, WY, ND, SD, NE, WV, DC, DE, RI, VT, NH, ME = 51). Looking at that list, it would be damn near impossible to get those entities to agree on anything.

Some people criticize the electoral college because they feel their vote doesn’t count. For example, a Republican voter in California or a Democratic voter in Texas has little chance of seeing their preferred candidate win the state’s electors. Every election has numerous states that vote reliably one way or the other, and a group of swing states where the election turns. Which states are swing states change over time; when I lived in Virginia, it went from reliably red to purple (swing) to light blue, then blue, now almost back to purple. The swing states this year are Wisconsin, Michigan, Pennsylvania, Nevada, Arizona, North Carolina, and Georgia. And in those states, there are reliably blue cities and red rural counties, so the vote actually comes down to a small number of voters in a small number of states (as it did in 2016 and 2020).

One effect of the electoral college winner-take-all system is that it often makes the winner’s advantage look bigger than it was. In the 1960 election, Kennedy beat Nixon electorally 303-219, but the popular vote was only 49.7 to 49.5%! And of course since the popular vote only matters within a state, a candidate can run up huge totals in the national popular vote and still lose the electoral college (Gore in 2000, Clinton in 2016). As they say in software, this is a feature, not a bug in the system. While the vote is close in all the swing states, it’s quite possible this year they all fall the same way, making a close popular vote look like a large electoral victory.

If Vice President Harris wins Wisconsin, Michigan, and Pennsylvania (often called the “blue-wall,” as they usually vote for the Democratic party candidate) and former President Trump takes Nevada, Arizona, Georgia, and North Carolina, the entire electoral decision comes down to the outlier districts in Maine and Nebraska which allocate votes directly. This is where the 270-268 or 269 tie becomes possible. What happens in the event of a tie? The vote for the President goes to the new House of Representatives which will be sworn in on January 3rd (before the Presidential inauguration). In the House, the states vote as units (fifty votes, nothing for the District of Columbia). Although there is no set rule currently, the obvious method is for each state’s representative to caucus and vote, with the majority deciding the state’s singular vote. The states can only vote for one of the candidates who received the three most electoral votes (in reality, it means just the Democratic or Republican nominees, as there are no third parties who will capture a state’s electors this time).

While Republicans “control” more state delegations in the House currently, remember that all Representatives are up for re-election, and how individual member would vote within their state caucus is entirely up to them. When such a contingent election happened in US history, there was a lot of deal-making and behind-the-scenes subterfuge.

As to the Vice Presidency, the same process goes on in the Senate. Except there each state has two Senators, so they vote as individuals, not as a state caucus. A simple majority selects the Vice President. But right now the Senate is split: there are forty-nine Republicans, forty-seven Democrats, and four independents. Three of the independents caucus with the Democrats, and the Vice President breaks ties, so Democrats currently control the Senate. But one-third of Senators are up for re-election, and like the House, the new Senate with a to-be-determined majority will conduct the vote. Interestingly, if the House has not settled on a President by March 4th, and the Senate has selected a Vice President, that Vice President becomes acting President until the House finishes its determination.

Among the strange possibilities?

• Vice President Harris runs up huge vote totals in deep-blue New York and California, but narrowly loses all the swing states and the Presidency to a Donald Trump electoral wave (the reverse is unlikely).
• The candidates virtually tie in the national popular vote (as many polls now indicate) but Harris narrowly wins all the swing states and large electoral majority.
• An electoral tie would result in Democrats trying to coax individual Republican Representatives (especially traditional Republicans and non-MAGA types) to toss the vote by the states in the House to Harris (they would only need a few states). Imagine the intrigue when career politicians know their votes have an immensely high value, they can vote as they like, and the result would end Trump’s stranglehold on the party. Making it even stranger and more fraught, the House Members would be up against the clock if the new Senate was deadlocked fifty-fifty, since sitting Vice President Harris might be the deciding vote (this part is unclear and untested, so a chance to get the Supreme Court involved, too!) for Vice President Walz, and if the House didn’t decide first, he would become President for a time! And if no one is selected by the House and Senate in time, the Speaker of the House becomes acting President, although who might that be next year is anybody’s guess! Imagine for a moment a grand electoral bargain, where House Republican members agree to vote for President Harris if she agrees to select JD Vance as the Vice President winner!

If you think that last one was implausible, let me introduce you to the election of 1876 and the “corrupt bargain.” That year, Democrat Samuel Tilden got 184 electoral votes, but needed 185 for a simple majority. His Republican opponent, Rutherford Hayes, got 165 electoral votes, and twenty electoral votes (from Florida, Louisiana, Oregon, and South Carolina) were disputed and therefore not counted (yes, it happened before, and no, it can’t happen this time, as after our last Presidential election, Congress changed the counting process to exclude contested electors from the total, meaning the number of electors needed for a majority is decreased by the number of electors disputed. It could still make a mess, but it helps address the problem.)

Since there is only about a page of rules in the Constitution about what happens when there is not an electoral majority, the Congress is free to determine its own methods. It established a commission to work out a compromise. That group comprised eight Republicans and seven Democrats, who predictably voted on party lines to give all disputed electoral votes to Hayes, meaning he won the Presidency 185-184. The rules Congress chose for the commission were that its results were final, unless both houses of Congress rejected them. The Senate, controlled by Republicans, did not reject the results (predictably), but Democrats controlled the House and tried desperately to filibuster or delay a vote in hope the result could be forestalled. Eventually they gave in, and threats that opponents would march on Washington were deterred by President US Grant’s promise to call out the army. Rutherford B. Hayes joined the list as twenty-ninth President of the United States and most people have never heard of Samuel Tilden, but that’s not the end of the story.

As you were reading that story, you probably asked yourself, “why did the Democrats agree to a Republican-majority commission? Why agree that both houses needed to disapprove, making the commission’s results almost certain?” While there is no written documentary evidence, many of those involved at the time talk about a “compromise” (later dubbed the “Corrupt Bargain”) between southern Democrats and the Hayes campaign, under which the rules would lead to Hayes becoming President while the southerners would receive several things: a cabinet-level official, the removal of federal troops in the South, no more interference with southern cultural (i.e., racist) policies, and a new southern rail line to the Pacific, among other things.

Hayes became President and all those things happened, including the state governments of Florida, South Carolina, and Louisiana switching to the Democratic party once federal protections were removed. As I said, there is no document proving this theory, and some of the compromises mentioned were already things of which Hayes was supportive. But the theory of a “corrupt Bargain” best explains what happened.

So the electoral college doesn’t function as the founders intended (never has), works against a straight democratic process for the Presidency, and has been the subject of political intrigue throughout our history. There is a movement afoot (the National Popular Vote Interstate Compact) to have enough state governments agree to change their electoral slates to match the winner of the national popular vote in case the electoral outcome does not represent that democratic majority. As such, it attempts to end-run the electoral college system, but it will fail, simply because the Supreme Court has already held the states cannot change how they select their electors mid-election. It doesn’t stop the folks from trying, but don’t get your hopes up.

Why keep the electoral college system? Because despite all that history and anti-democracy, it works. Consider a hypothetical under a direct, popular vote system for President. It takes somewhere in the neighborhood 0f seventy-five million votes to win the Presidency. Americans are increasingly associative migrating, that is, moving to areas where like-minded voters live. It is why you can find cities where no one knows a Trump supporter, and large farmlands where there is nary a Harris-Walz sign. Most of the Californians fleeing (literally) the Golden State are its GOP twenty percent, and they are moving to the reddest of red states, even when they choose blue-bubble cities in those states.

Under a popular vote system, a Democratic candidate could focus all his campaign and policies on the twenty largest cities and the states of New York/New England and California/Washington/Oregon in order to easily reach that total. No need to visit anywhere else, campaign anywhere else, consider anything else. Simply promise things to those cities/states/voters, focus your attention on mobilizing that base and getting it to polls (virtually or really), win the election and reward your supporters. Rinse & repeat. Likely? Maybe not. Willing to risk it? No. I don’t think even a partisan Democrat thinks that’s a better system of Presidential selection.

There may be alternatives or small changes to improve the electoral college system, and the country should always review and consider them. But if the problem is you’re not winning, the solution needn’t be to change the rules of the game. All systems can be gamed (as I demonstrated), so any proposal must demonstrate it is hands-down superior. And that’s a tall order against an electoral system which has itself evolved to meet the nation’s needs.