The Electoral College

Transcript

The Electoral College is a lot like figure skating. People only care about it every four years.

Unlike figure skating, people tend to have a lot of opinions on the subject.

Learn more about the past, present, and possible future of the Electoral College on this episode of Everything Everywhere Daily.

The Electoral College is a uniquely American institution that has one and only one purpose: to select the President of the United States.

What we have today is a result of several hundred years of compromise, tradition, and historical accident to create our current system.

For the few of you who unaware of what the Electoral College is, it is the body that meets every four years to elect the president. Contrary to popular belief, the people do not and have never, voted directly for the president of the United States.

The people vote for electors and these electors then vote for the president.

The real election of the president doesn’t take place on the first Tuesday of November, rather it takes place on the first Monday after the second Wednesday in December when the electors meet to cast their vote.

So why do we do this? Why don’t we just plain old elect the president?

To understand this we need to go back to the Constitutional Convention of 1787.

At no point during the debates of how to select a president, was the idea of a popular election ever seriously floated. Not only would it have been pragmatically difficult to have such an election for frontier communities in the late 18th century, but the framers were extremely concerned with mob rule and majoritarianism.

The initial plan was for Congress to directly elect the president.

The concern was that if Congress elected the president, then there would be too much quid pro quo between the legislative and executive branches. Members of Congress would only vote if they could get guarantees from their candidate that they would support certain policies.

The framers wanted the branches to be very independent of each other as a check and to reduce corruption.

The compromise was to create a parallel body that mirrored Congress but wasn’t itself Congress. This is why there are exactly as many electors as there are members of Congress, regardless of what that number might be.

Sitting members of congress are expressly forbidden from serving as electors.

Because the electors meet only once and for only one purpose, they wouldn’t be in a position to place conditions on the president the way the Congress would.

This process of electing people who elect someone is called indirect election, and it actually is extremely common around the world. In fact, most democracies elect their head of government via indirect election.

In every parliamentary system of government, this is how the prime minister is chosen. You elect representatives who then elect the leader of the government.

To this extent, the Electoral College is no different than a parliament. It is just a means of indirect election of a leader. The only difference is that the Electoral College assembles only one time to do this one thing.

In the initial system, the President was the person who got the most elector votes, and the vice president was whoever came in second.

They quickly learned that this was a terrible idea. You wound up with a president of one party, John Adams, and a vice president from another party, Thomas Jefferson, who didn’t get along. The 12th amendment fixed this problem.

The other thing is that the electoral college wasn’t being adopted the way the original framers thought it would or should be.

Alexander Hamilton and John Madison thought that people would actually be electing electors who were knowledgable people who would go and debate issues and select a good person for president.

That is never how it worked. Almost from the start, states began selecting slates of electors who all supported the same person. There was no debate or discussion. They were chosen because of who they went in supporting.

Also, Hamilton and Madison assumed that electors would be chosen on a district by district basis, not as a single slate for an entire state. Today, only two states, Maine and Nebraska, select their electors the way Hamilton and Madison intended.

Initially, most states didn’t even have popular voting for president. If you remember back to my episode on the election of 1824, Andrew Jackson is often listed as having won the popular vote, but six states, including the largest state, New York, didn’t even have a popular vote.

It wasn’t until after the Civil War that every state used the popular vote to select electors. In theory, states still have the right to select electors via the legislature instead of through a popular vote.

So, what is the controversy?

The problem people have with the electoral college is pretty simple. It allows for the president to be elected without winning a plurality of the popular vote.

This has happened 5 times in US history: 1876, 1888, 1960, 2000, and 2016. For the record, I do not include the election of 1824 on this list and I do include the election of 1960, and I have done episodes on both of these elections which I explain why. Please go and listen to those shows if you haven’t already.

There have been 58 presidential elections in US history, so the disconnect between the popular vote and the electoral college is currently 9%. That isn’t bad, but it isn’t great either.

I don’t think most people would strenuously object to the idea of the person who gets the most votes winning.

However, there are reasons we might want to keep the electoral college around in some form.

The biggest one is that an election in a country with 330 million people could be a potential nightmare in a very close election. In a case like the 2000 election, the problems were able to be isolated to one state, Florida, and one county. There very well might have been other states with hanging chad problems in the 2000 election, but they just didn’t matter because they didn’t affect the outcome for their state.

To this extent, the Electoral College serves as a firewall between the states. In every election, there will always be some problems with ballots and voting. In the vast majority of cases, the problems are so small relative to the results that it doesn’t matter.

In a direct popular vote, every precinct in the country would be under the same level of scrutiny in a very close election. Instead of a few lawsuits, there could potentially be thousands, and resolving an election could be a potential nightmare.

Also, because there has never been a truly direct national election in American history, we have never had to set up a national system of rules and procedures for elections. Each state and locality is free to set up their own system. In a truly national election a uniform system of voting and registration for everyone.

Moreover, as I mentioned above, pretty much every democracy in the world has a system of indirect election. The idea of a minority government isn’t unique to the United States. It happens all the time in parliamentary systems.

That being said, if we could improve the Electoral College such that it would dramatically minimize the possibility of a popular vote winner losing, then we could have the best of both worlds. If the current system results in minority presidents 10% of the time, perhaps we could improve that to just 1%.

There are several plans floating around for changes to the Electoral College.

The first of which is the obvious eliminating it entirely. This is possible, but it would require a constitutional amendment. A constitutional amendment needs ¾ of all the states to approve it, and it is highly unlikely that this would happen given that most states benefit under the current system. You’d be asking the majority of states to fall on their sword to benefit California, Texas, and Florida, and that just probably isn’t going to happen.

The next idea which is floating around is the National Popular Vote Interstate Compact. This is just an agreement between states that everyone will select electors who will vote for whoever wins the popular vote.

The problem with this will be enforceability. The moment there is an election where one state can swing the outcome by having electors vote in the way their citizens actually voted, it wouldn’t be difficult to see a state legislature break with the compact, and there wouldn’t really be any penalty to doing so.

Currently, only 16 states have signed on and it is doubtful that they would get enough states to make this enforceable. To me, it seems like a giant court case in the making.

The other solutions would involve changing the Electoral College by changing congress. Because the Electoral College is just a mirror of congress, if you change congress, you change the electoral college at the same time.

One proposal would involve changing the membership of the Senate. This could involve giving larger states more senators, which would require a constitutional amendment is unlikely to happen. The other would be to just create more states. If you break up larger states like California and Texas into smaller units, the number of senators would increase and the number of citizens per elector would go down what are currently large states.

There have been plans floated to break California up into as many as 5 states, and Texas has always had this right as part of their admission to the Union.

The nice part about his is that it wouldn’t require a constitutional amendment. However, busting up states is not a trivial thing to do, and it is taking a sledgehammer to go after a fly.

Changing the House would be infinitely easier. Unlike the Senate, the size of the house is not set by the constitution. In fact, through the first half of the history of the United States, the size of the house of Representatives was increased after every census.

However, that stopped in 1911.

The Apportionment act of 1911 set the number of seats in the House of Representatives to 433, plus two more when Arizona and New Mexico joined the union in 1912, bringing the total to 435 where it is today.

The odd thing is, when Arizona and New Mexico were admitted the house increased by 2, the senate increased by 4, and when Alaska and Hawaii were admitted in the 50s, the senate again increased by 4, and the house didn’t increase at all.

Since 1911, the population of the United States has tripled, but the size of the House of Representatives hasn’t budged. If you can increase the size of the house, it dilutes the strength of the senate in electoral college voting.

Currently, the United States has far and away more people represented by a single legislator than any other country in the world. This is directly a result of not increasing the size of the house with population growth.

There are two major ideas for increasing the size of the house.

The first of which is the Wyoming Rule. This would set the number of people that any member of the house represents to be equal to the size of the smallest state. Today that would be Wyoming.

Under the Wyoming Rule, after the 2010 census, the house would have had 547 members. While this rule sounds fair and appealing, there is one big problem with it. Over the last 100 years, as the population has tripled, the size of the house would have shrunk. This is because the ratio of the population of the largest state to the smallest state has actually shrunk.

In 1900, the largest state, New York, was 111x bigger than the smallest state, Nevada. Today, California is only 66x bigger than Wyoming, and that ratio keeps going down.

Shrinking the size of the house with respect to population growth doesn’t really make sense.

The other proposal is the Cube Root Rule. This is based on the fact that many legislatures around the world tend to have sizes that approximate the cube root of the population. As the population increases, the size of the legislature increases, but at a slower rate.

Under the cube root rule, there would be 693 members of congress or 593 members of the house. Most of the new representatives would go to larger states, and correspondingly, they would get more electoral votes. The smallest state would still only have one representative.

The nice part about this plan, it that it would be super simple to implement, not require a constitutional amendment, you wouldn’t have to redraw the maps, and would result in more closer representation across the board for everyone, all the time.

So, I’d say if you want to change the Electoral College, the easiest way is to just change the size of the house of representatives.

Before I close the show I should talk about the issue of faithless electors.

Because you actually vote for electors and not the president, there isn’t really anything stopping an elector from deviating from the candidate they pledged to vote for.

This happens quite frequently, but it has never affected the outcome of an election.

Faithless electors do allow for some flexibility. For example, in 1872 one of the two major candidates, Horace Greely, died four days after the general election took place. The electors pledged to Greely were able to change their vote to vice president or other candidates from the same party. Likewise in 1912, one of the vice-presidential candidates died before the election, and electors were able to modify their vote.

The vast majority of faithless electors in the last 50 years were pledged to losing candidates and used the opportunity to make a protest vote because their pledged candidate wasn’t going to win.

33 states have enacted laws to prevent faithless electors either through fines for electors or outright invalidating ballots which are unfaithful. In two 2020 Supreme Court cases, the court ruled unanimously that states have the right to enforce faithless elector laws.

With the recent decisions and more state adoption faithless elector laws, we just might have seen the end of this particular feature of the electoral college.