Electoral College: Who Decides?

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No other part of our election system is as important as the Electoral College. No other part of our election system has come under fire through the years since its establishment than the Electoral College. The furor over its existence ebbs and flows through cycles. But in recent presidential elections that were decided by the voting results of the Electoral College which totals were different than the results of the American popular vote have put discussions about ending the Electoral College front and center again.

It IS controversial. And that controversy in large part is the result of American voters not understanding its structure, its purpose, and its controversy. Those Americans that are confused pretty much all subscribe to the thinking “Why even have it at all, especially when in 2000 the Bush 43 election and then in the 2016 Trump election its results (and ultimately the presidency and vice presidency) were decided by other than popular vote totals of ALL Americans?”

So in all the confusion and misunderstanding, we thought it best to delve into ALL the details of the Electoral College so everyone can participate in educated discourse about its value, its history, and its impact on the country going forward.

Let’s take a look, after which in our Summary we will share OUR conclusions.

The Electoral College

The Electoral College members for each state are voted on by the state’s residents on voting day. In some states, the electors’ names are printed on the ballots directly under the presidential candidates’ names or grouped by party somewhere else on the ballot. In other states, the names of electoral college nominees are not even listed on the ballot.

When you vote for a presidential and vice-presidential candidate on the ballot, you are really voting for the electors of the political party (or unaffiliated candidate) by which they were nominated. Take the North Carolina General Statute § 163-209, for example: “A vote for the candidates for President and Vice-President named on the ballot is a vote for the electors.”

This is the case for 48 states. It’s known as the winner-take-all system, where all electors go with the candidate who wins the popular vote regardless of how close the vote is. So if the Democratic candidate narrowly wins the popular vote in Texas, for instance, 38 Democratic electors (38 being the total number of electoral votes in the state) will represent Texas as a voting block.

The other system, known as the congressional district method, is observed in Maine and Nebraska. In these states, the vote is split between the electoral vote which goes to the winner of the statewide popular vote and the congressional district vote. The state is divided into congressional districts, each with one electoral vote. The winner of the popular vote in each district is awarded an electoral vote. Potentially, this could result in a divided electoral vote but so far it has not happened in either state.

Most of the time, electors cast their votes for the candidate who has received the most votes in the state he or she represents, or for the candidate affiliated with his or her political party. However, there have been times when electors have voted contrary to the people’s decision. When electors cast their vote without following the popular vote or their party vote, they are known as faithless electors.

In response to faithless electors’ actions, at least two dozen states have created laws to enforce an elector’s pledge to his or her party vote or the popular vote. Some states even assess a misdemeanor charge and a fine. For example, the state of North Carolina fines faithless electors $10,000. However, a number of scholars believe such state-level laws would not survive constitutional challenge; of the 158 faithless electors, none have ever been punished.

In most presidential elections, the candidate who wins the popular vote will also receive the majority of the electoral votes, but this is not always the case. Some electors abstain from voting, while others vote differently than they pledged to vote. Despite 11th hour changes within the Electoral College, only five candidates in U.S. history have won an election by losing the popular vote and winning (or deadlocking) the electoral vote:

  • 1824: John Quincy Adams, the son of former President John Adams, received some 38,000 fewer votes than Andrew Jackson, but neither candidate won a majority of the Electoral College. Adams was awarded the presidency when the election was thrown to the House of Representatives.
  • 1876: Nearly unanimous support from small states gave Rutherford B. Hayes a one-vote margin in the Electoral College, despite the fact that he lost the popular vote to Samuel J. Tilden by 264,000 votes. Hayes carried five out of the six smallest states (excluding Delaware). These five states plus Colorado gave Hayes 22 electoral votes with only 109,000 popular votes. At the time, Colorado had just been admitted to the Union and decided to appoint electors instead of holding elections. So, Hayes won Colorado’s three electoral votes with zero popular votes. It was the only time in U.S. history that small state support has decided an election.
  • 1888: Benjamin Harrison lost the popular vote by 95,713 votes to Grover Cleveland, but won the electoral vote by 65. In this instance, some say the Electoral College worked the way it is designed to work by preventing a candidate from winning an election based on support from one region of the country. The South overwhelmingly supported Cleveland, and he won by more than 425,000 votes in six southern states. However, in the rest of the country, he lost by more than 300,000 votes [source: U.S. National Archives and Records Administration].
  • In 2000, Al Gore received 50,992,335 votes nationwide and George W. Bush received 50,455,156 votes. The race was so close in Florida that ineffectively punched ballots (known as “hanging chads”) required a manual recount because the voter intent couldn’t be deciphered by machine. Eventually, Bush was awarded the state of Florida by the U.S. Supreme Court and had a total of 271 electoral votes, which beat Gore’s 266 electoral votes.
  • 2016: Hillary Clinton won the popular vote by 2.8 million over Donald Trump, the largest margin by a presidential loser in U.S. history. But Trump won 306 electoral votes to Clinton’s 232. He won all the Great Lakes states that traditionally vote Democrat, plus four big battleground states (including Florida and Michigan) by less than 1 percentage point. Clinton had bigger leads in fewer, but more populous states, like California.

Today, a candidate must receive 270 of the 538 votes to win the election. In cases where no candidate wins a majority of electoral votes, the decision is thrown to the House of Representatives by virtue of the 12th Amendment. The House then selects the president by majority vote with each state delegation receiving one vote to cast for the three candidates who received the most electoral votes.

Who Decides an Impasse?

When there’s an impasse in the Electoral College, the decision goes to the House of Representatives which has happened twice. In 1801, Thomas Jefferson and Aaron Burr, both Democrat-Republicans, received the same number of electoral votes, even though Burr was running as a vice presidential candidate. After 36 successive votes in the House, Jefferson was finally elected president. In 1825, Andrew Jackson received the popular vote over John Quincy Adams, but neither man received the electoral vote majority to claim the presidency. Adams won the House vote on the first ballot.

The Electoral College Debate

Proponents of the Electoral College say the system serves its purpose, despite the fact that the candidate who wins the popular vote doesn’t always win the election. The Electoral College is a block, or weighed, a voting system designed to give more power to the states with more votes, but allows for small states to swing an election, as happened in 1876. Under this system, each state is assigned a specific number of votes proportional to its population, so that each state’s power is representative of its population. So, while winning the popular vote may not ensure a candidate’s victory, a candidate must gain popular support of a particular state to win the votes in that state. The goal of any candidate is to put together the right combination of states to earn 270 electoral votes.

As the 2000 election approached, some observers thought that Bush, the son of a former president, could win the popular vote, but that his opponent, Gore, could win the Electoral College vote because Gore was leading in certain big states, such as California, New York, and Pennsylvania. In the end, Gore secured the popular vote, but Bush won by securing the majority of votes in the Electoral College.

Since then, a push to reform the Electoral College has been gaining steam. As of December 2016, California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, Washington and the District of Columbia have passed legislation that mandates electoral votes go to the presidential candidate who wins the national popular vote. In addition, 12 other states have passed a reform bill through one house. Still, more states are introducing an Electoral College reform bill or discussing it in committee. “This National Popular Vote law” would take effect only when it’s been passed by enough states to have a total number of electoral votes of 270.

To many, aligning the electoral vote with the popular vote seems like a valid solution. Others believe there must be a better way to select a president than by popular vote alone. Otherwise, small states or states with sparse populations won’t be equally represented. While the future of the Electoral College may be uncertain, one thing isn’t up for grabs: It’s likely to be a controversial subject well into the future.

Summary

Let’s get real: the above details the purpose, construction of, the reasons for support and the reasons for change that many in the U.S. hold. But it all boils down to 1 thing and 1 thing only:

Why was it established way back then? Let’s face it: our forefathers were pretty sharp. Most of them (or their parents) escaped oppressive governments in Europe. Most of those European governments were dominated by the political processes from large cities, like London, Paris, Barcelona, Rome, and Berlin. Our early settlers had lived in and through a political process with similarities to ours today: domination on the most part by residents (and voters) who live in big cities, many are coastal. Our forefathers and their families fought the overwhelming political control of folks who lived in those large metropolitan areas that in many ways could not even relate to residents and voters who lived in rural parts of those European countries — called “Fly-over America” in today’s United States. It wasn’t fair in Europe and our forefathers knew it wouldn’t be fair in the U.S. The Electoral College was the best solution they could surmise to implement and maintain election fairness for non-metropolitan citizens: those in the 18th Century’s rural America and today’s America’s “Fly-over” citizens.

Of course, those same forefathers included a way for us to change or even cancel the Electoral College: with a Constitutional Amendment to do so. Of course, doing that is difficult and takes a long time — and purposely does. They knew that using the Constitution as the “foundation” of our legal structure and requiring its amending to be intricate would prevent politicians from simply making changes at the whim of political cries. There are two ways to amend it:

Method 1: Congress Proposes an Amendment

An amendment to the Constitution may be proposed by any member of the House of Representatives or the Senate and will be considered under the standard legislative process in the form of a joint resolution. In addition, as ensured by the First Amendment, all American citizens are free to petition Congress or their state legislatures to amend the Constitution. To be approved, the amending resolution must be passed by a two-thirds supermajority vote in both the House and the Senate. Given no official role in the amendment process by Article V, the President of the United States is not required to sign or otherwise approve the amending resolution. Presidents, however, typically express their opinion of proposed amendments and may attempt to persuade Congress to vote for or against them.

States Ratify the Amendment

If approved by Congress, the proposed amendment is sent to the governors of all 50 states for their approval, called “ratification.” Congress will have specified one of two ways by which the states should consider ratification:

  • The governor submits the amendment to the state legislature for its consideration; or
  • The governor convenes a state ratifying convention.

If the amendment is ratified by three-fourths (currently 38) of the state legislatures or ratifying conventions, it becomes part of the Constitution.

 Method 2: The States Demand a Constitutional Convention

Under the second method of amending the Constitution prescribed by Article V, if two-thirds (currently 34) of the state legislatures vote to demand it, Congress is required to convene a full constitutional convention. Just as in the Constitutional Convention of 1787, delegates from every state would attend this so-called “Article V Convention” for the purpose of proposing one or more amendments.

Though this more momentous method has never been used, the number of states voting to demand a constitutional amending convention has come close to the required two-thirds on several occasions. Indeed, the mere threat of being forced to surrender its control of the constitutional amendment process to the states has often prompted Congress to preemptively propose amendments itself.

Obviously, either method is tough to do. In most Americans’ minds, our hope is that our legislators in Washington D.C. simply go to work to resolve even the controversial issues that are those that prompt cries to eliminate the Electoral College. Our concern is that far too many people making those cries do NOT understand its structure and purpose, and have simply been told: “the Electoral College thwarts the will of the majority of the People!”

No! the Electoral College “protects” the voices of all Americans who do NOT live and vote in large cities and metropolitan areas!

Once again, when understood, the reasoning for the Electoral College becomes crystal clear. And remember this: “Just because you think something is wrong doesn’t mean it’s wrong. And just because you think something is right doesn’t mean it is right.”

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