Electoral College losing its degree…of importance.

How states are avoiding the constitutional requirements of the electoral college.

The 2016 election cycle has revitalized the movement to abolish the electoral college.  The election of Donald Trump is the second election within the last 16 years in which a president was elected without holding the popular vote.  The previous one was the election of George W. Bush in 2000.  Though doing away with this electoral system enshrined in our Constitution would be difficult, that has not dissuaded several states from trying an end run around the electoral college.  The most recent of these states is Connecticut and Virginia.  One bill in Virgina seeks to change how the state allocates its electoral votes; and multiple bills in Connecticut would enter the state into a compact with other states determining how electoral votes are cast.  These two measures highlight two ways in which several states have sought to disarm the electoral college without entirely abolishing it.

The ultimate goal for a democracy is a presidency won by the popular vote—not 538 electors.  Even some in Washington have expressed their hopes for an Electoral College alternative.  In a talk at Stanford Law this February, Justice Ginsburg discussed the Electoral College as one of a number of things she would like to change.  Even President Trump stated to Congressional leadership his interest in doing away with the electoral system; though, these intentions were short lived.  Outside Washington historically, a majority of Americans supported abolishing the electoral college.

The Electoral College has been around since the founding of the United States; it is a reflection of our republican form of government, where the voice of the states—as opposed to the voice of the individual citizen—is emphasized at the federal level.  For example, before the Constitution was amended, the people only elected U.S. Representatives, while state legislators elected Senators and members of the electoral college.  Now, electors are appointed by the political parties based on the results of the popular vote in the state.  In other words, when voting for President under the Electoral College system, you are voting for someone who will cast a vote on your state’s behalf.

There are 538 electors in the Electoral College.  Each state gets one elector per member of Congress representing that state, and the District of Columbia gets three.  In all but two of the states, the winner of the popular vote within the state receives all of the electoral votes of the state.  This is the “winner-take-all” aspect of the Electoral College. Maine and Nebraska, give two of their electors to the winner of the popular vote within the state and the remainder are allocated by popular vote within each congressional district.  In most states, the electors are required to cast their vote in accordance with the state’s popular vote.  But, sometimes a “faithless elector” will not cast the vote they were appointed to cast.  Though this happens often, it has never affected the outcome of an election.  Because electors are all but bound to the vote they were appointed to cast, we are able to project the winner of the Electoral College vote based on which candidate’s electors are chosen on election day.

The Electoral College is an archaic system that no longer reflects the relationship between the federal government and it’s citizens.

Those individuals supporting abolition of the Electoral College may do so for many reasons.  Most notabley, the College allows for scenarios where the President elected fails to win the national popular vote.  This has happened quite a few times in our country’s history.  There is a fear of “faithless electors” throwing an election as described above, but this has never happened before.  Due to that fact, the Electoral College perpetuates the two-party system in the United States.  Because of how campaigns strategize around the math of the Electoral College, the system tends to ignore non-swing-states like Massachusetts or Mississippi where the outcome of the state’s popular vote is all but certain.  In other words, the Electoral College is an archaic system that no longer reflects the relationship between the federal government and it’s citizens.

The Electoral College was not a half-baked idea thrown into the Consitution at the last minute.  The idea came with careful consideration and there are compelling arguments for why it continues to be the ideal system for our federal government.  Supporters say the system ensures that those not in the majority are heard, and that the system is there to ensure all political power is held in the populist centers.  Supporters fear that the abolition of the Electoral College would lead to concentrated campaigning in urban areas while the rural areas of the country are ignored.

When considering the recount in Florida in 2000, one’s imagination can run wild considering what a national recount would look like if the national popular vote was challenged.  Though it was listed as an argument against the Electoral College, the system’s encouragement of a two-party system is arguably a benefit due to the stability of the two-party system.  An additional benefit of encouraging the two party system is forcing candidates to appeal to the center of the political spectrum and not allowing the extreme of either from controlling.  Finally, keeping the Electoral College would preserve the system of federalism set forth in the constitution, maintain the role of the state in our form of government, and ensure against the perils of a direct democracy.

Since the Electoral College is established in the Constitution, entirely abolishing the system would be difficult.  In order to abolish the Electoral College, there would need to be a constitutional amendment that passes Congress by a 2/3 vote and is ratified by 38 states.  In short, there are some pretty major obstacles to a complete abolition of the system that leads some to believe the change is simply unrealistic.  That does not mean it has not been tried many times in the past.  In 1934, a vote to do away with the College failed in the Senate by just two votes.  In 1966 hearings were held in Congress to discuss abolishing the system.  Again, in 1979, the Senate held debates on an direct election alternative, but the measure failed just shy of the 2/3 threshhold.

The current attempts to fix the Electoral College are aimed at finding a way around it instead of getting rid of it all together. 

Recently, outgoing Senator from California, Barbara Boxer, introduced legislation to abolish the Electoral College.  The current attempts to fix the Electoral College are aimed at finding a way around it instead of getting rid of it all together.  For example, recent Connecticut legislation would make the state part of the National Popular Vote Interstate Compact, which would mean that Connecticut agrees to give its electoral votes to the winner of the national popular vote instead of Connecticut’s popular vote.  The Compact, allowed by the Constitution, is an agreement between the party states to allocate their votes in accordance with the national popular vote.  If enough states join the compact to make up a majority of the electoral votes (270 votes), then the Electoral College would always yield the same result as the national popular vote.

Currently, eleven states have joined the compact.  This route has also been proposed in Virginia.  Virginia is also considering another method to usurp the Electoral College.  A bill proposed in the legislature would require that Virginia allocate its electors according to the popular vote of each congressional district and not the popular vote of Virginia.  This method, also used by Maine and Nebraska, would eliminate the “winner-take-all” aspect of the Electoral College without entirely abolishing it.  Notwithstanding past failed attempts at somehow changing the Electoral College, current attempts and growing petitions make it clear that the opposition to the Electoral College remains strong.

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About Cody Davis (12 Articles)
Cody Davis is a third year law student and serves as a contributor for the Campbell Law Observer. He is originally from Archdale, NC. He received his bachelor's degree from N.C. State, majoring in Political Science and minoring in Criminology and Philosophy. In addition to pursuing a Juris Doctorate at Campbell University School of Law, Cody has simultaneously earned his Masters in Public Administration at NC State. He currently serves as the Assistant Director of the Campbell Law Pro Bono Council and has worked as a research assistant for Professor Bobbi Jo Boyd. He is currently interning at the Legislative Analysis Division of the North Carolina General Assembly.