In a 9–0 ruling this week, the Supreme Court decided that it is constitutional for states to penalize members of the Electoral College who break their pledges to support a candidate. This is the latest in a long line of constitutional amendments and interpretations that have served to alter and neuter the College, practically since its inception. It is a decision that again illustrates the redundancy of our current system of electing the president, and provides yet another reason to abolish the Electoral College outright in favor of a national popular vote.
The History of the Electoral College
To understand the case for replacing the Electoral College, one must understand the original case for instituting it. The system is mandated in the United States Constitution, under Article II, Section I. The relevant text, in this case excerpts from Clauses II and III, reads,
Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed;
In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice President.
The aforementioned electors were historically chosen in a number of ways, such as by a state’s legislature or by a popular vote in a state’s districts. It should be stressed that under this text, the only people voting in the presidential elections are the electors, of which there are a relatively small number. This was seen as the safest method, and the method that was most likely to leave the election in qualified hands. Alexander Hamilton, who would later become the country’s first Secretary of the Treasury, outlined this in Federalist № 68 writing,
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
One of the earliest revisions to this system came in 1804 with the ratification of the 12th Amendment, which changed how the vice president was elected. Rather than the vice president being the runner-up, the electors are to cast two separate ballots: one for the presidency and one for the vice presidency. This allows individuals to run specifically for the role of vice president, typically in conjunction with a presidential candidate. It is the system we are familiar with today.
Over the following years, however, the independence of the Electoral College was slowly restricted by states. Every state in the Union, save Maine and Nebraska, has enacted a system in which all of that state’s electors are bound to cast their vote for the winner of that state’s popular vote. How this typically works is a little complicated. Effectively, each political party chooses people to run as electors (of which 538 are elected nationally, including the three granted to the District of Columbia under the 23rd Amendment) and these individuals pledge to vote for that party’s candidate (which was affirmed to be constitutional in 1952 with the case of Ray v. Blair) if they win. When the general public votes in November, they are really voting for a party’s “slate” of electors rather than the presidential candidates themselves. The exceptions, again, are Maine and Nebraska, wherein electors are chosen by the popular vote on a district-by-district basis with each state’s two outstanding electors going to the winner of the respective state’s popular vote.
Chiafalo v. Washington
While Ray v. Blair affirmed the constitutionality of electoral pledges, the Supreme Court left open the discussion of whether these pledges could be enforced. That is, until Monday’s Supreme Court ruling. The case in question, Chiafalo v. Washington, centered around whether Washington state had the power to levy $1,000 fines against “rogue” or “faithless” electors: those who break their pledges (of which the state had three in the 2016 presidential election). Washington, like 31 of its fellow states and D.C., mandates electors to uphold their pledge. 15 of these states, including Washington state, fine or replace faithless electors. In a unanimous ruling, with the court’s opinion written by Justice Elena Kagan, it was determined that the constitution does not prohibit penalizing faithless electors.
This ruling marks another nail in the coffin for the Electoral College. A far cry from its original vision, the College has been reduced to an ineffectual and needless intermediary between the popular vote and the presidency. The country is left with a flawed system that fails to effectively represent both the will of the electors and the will of people.
Flaws of the Electoral College
The Electoral College is host to a great array of flaws. There is, perhaps, none greater than its repeated failure to align with the popular vote. There have been four recorded presidential elections in which a candidate has lost the popular vote to an opponent but still won the presidency by winning a majority of the Electoral College. The most recent instance was in 2016, when Donald Trump lost the popular vote by nearly three million votes but won the College by 74 votes. Another example can be seen in the election of 1888, when Benjamin Harrison won the Electoral College by 65 votes despite losing the popular vote by over 90,000 ballots. In fact, though it is unlikely, a candidate could win the Electoral College with only 23% of the popular vote. The fact that, under any circumstances, the candidate with the most votes and support can be prevented from winning the presidency is an insult to democracy. It is an insult to the very ideals laid out in our founding documents, that our government rules by “deriving their just powers from the consent of the governed,” as the Declaration of Independence claims.
Another flaw of the Electoral College arises in the disproportionate power its modern form grants residents of some states over others. Due to the Permanent Apportionment Act of 1929, which capped the number of seats in the House of Representatives at 435 thereby capping the number of electors, growth of the Electoral College to reflect the population has stagnated. The issue with this is demonstrated by FairVote’s breakdown of the 2008 Electoral College. Looking at that data, compare Texas and Wyoming. While each elector from Wyoming represented roughly 177,556 Americans, each elector from Texas represented 715,449. This means that a vote in Wyoming was nearly four times as powerful as one in Texas. That is an egregious disparity.
The Electoral College also creates the issue of “swing states,” or states that could vote either Democrat or Republican, having more influence over candidates than “spectator states,” or those states that are decidedly going to vote a certain way. With spectator states’ outcomes reliably predicted, turnout is often depressed. With swing states up for grabs, candidates devote the vast majority of their time and money to those states and neglect states with a clear allegiance. This leads to an absurd imbalance. In 2016, for example, data from FairVote shows that two-thirds of campaign events in the general presidential election were held in a mere six states. That leaves a disturbing amount of the country neglected and unheard. After all, if a state’s voting can be reliably foreseen, why bother catering to their interests? Especially if those interests run counter to those of a swing state.
The Case for A National Popular Vote
The Electoral College is broken. It often fails to give a voice to the American populace, and when it does it gives certain Americans louder voices than others. It is clear that a change is necessary.
The time for a national popular vote is long overdue. The original concerns that led to the compromise of the Electoral College are not relevant nor protected against in the modern age. Thanks to the rise of modern news and communication technology, Americans are more than able to make informed decisions at the ballot box. And any threat of a “democratic mob” is hardly realistic with the current population size. Further, even if these remained legitimate concerns, the Electoral College has been left powerless to prevent them by a patchwork of state laws and Supreme Court rulings.
A national popular vote would return a fair and equal say to every American. It would force candidates to consider and balance the interests of their potential constituents more equitably and it would restore faith in American democracy at a time when it is wanting. Further, earlier this year Pew Research Center reported that, “A majority of U.S. adults (58%) say the Constitution should be amended so the presidential candidate who receives the most votes nationwide wins.”
That, of course, raises another difficult issue. The Electoral College is enshrined in the United States Constitution, and it would therefore take a constitutional amendment to overturn it entirely. This would first require the proposed amendment to pass both the House of Representatives and the Senate with a two-thirds majority in each or be proposed by a constitutional convention called for by three-fourths of state legislatures. In both cases, it would then have to be ratified by three-fourths of state legislatures. As critical to American democracy as this change is, it is unlikely to happen anytime soon. Though President Trump was once opposed to the Electoral College, he has changed his tune now that it won him the presidency and his support for it reflects the popular Republican position. Seeing as how Democrats currently control only one chamber of the federal legislature and control both chambers of only 19 state legislatures, it is apparent that any hopes of a constitutional amendment in the short term are far-flung.
There may be a temporary compromise available, however. Enter the National Popular Vote Interstate Compact (NPVIC). The NPVIC is an agreement among states to grant all of their electors to the candidate who wins the national popular vote. It must be noted, however, that it is only binding when it is entered into by enough states to comprise at least 270 electoral votes, a majority. This would allow the states, wielding a majority of the Electoral College, to enact a popular vote system without adopting a constitutional amendment.
Currently, 14 states and D.C. have completed adoption of the NPVIC. All of these states but New York had a Democratic legislature and all but Hawaii had a Democratic governor. In total, these states comprise 187 electoral votes. In Colorado, though it did pass the legislature and was signed by the governor, the NPVIC is being put to a public referendum in November. If it passes, it would add another nine electoral votes. If the outstanding states that are controlled by Democrats (not including Colorado) were to pass the NPVIC as well, it would gain another 23 electoral votes. So in the current political field, the NPVIC could theoretically grow to encompass 219 electoral votes. Though that is still 51 votes short of the 270 necessary to put the compact into action, it is a gap that is far easier to resolve than that necessary for a constitutional amendment.
The Electoral College is an archaic and undemocratic system. It is based on mistrust of American citizens and thus fails to represent them. If America is to continue to be the world’s most vibrant and thriving democracy, a national popular vote is a necessary and beneficial step. It is a change that would ensure every American’s right to a voice in government. Though the road there may not be easy nor simple, it is imperative. It is imperative because, as President George Washington said in his farewell address, “The basis of our political systems is the right of the people to make and to alter their constitutions of government.”