The view from a flyover state: Is the Electoral College doing what it was intended to do?
The case for the Electoral College, and why others say it is time for a change
SALT LAKE CITY — Interest in that confusing, hard-to-explain, easily misunderstood constitutional creation known as the Electoral College rises every four years as the nation watches the presidential election unfold.
A giant map of the states on the TV screen turns red and blue as vote tallies roll in and the candidates inch toward the magic number of 270 electoral votes needed to secure the presidency. Sometimes the one with the most popular votes doesn’t win.
Candidates in two of the previous five presidential elections — George W. Bush in 2000 and Donald Trump four years ago — have won the White House without winning the national popular vote. That had happened in only three times in the previous 200 years.
For a time it looked like it could happen again in 2020.
In the latest count, Democratic former Vice President Joe Biden has 5.2 million more popular votes than Trump, and has surpassed 270 electoral votes with projected wins in key battleground states. Trump has refused to concede, is seeking recounts in an election he says was “rigged,” and has filed lawsuits to contest the results in some states.
Trump’s 2016 win brought a wave of complaints about the electoral system, including that it is antiquated, undemocratic and unfair.
Some Democratic presidential candidates favored or were open to the idea of abolishing the college in favor of the popular vote, though Biden was not among them. Republicans are less inclined to change a system that favors federalism and has elected two GOP presidents who lost the popular vote in the past 20 years.
“Each time you have a presidential election in which someone becomes president without securing the popular vote, those people who supported the candidate who was not elected tend to get more upset. They had four years to sort of foment over this. I think that’s one of the reasons why you see it coming increasingly under attack today,” said Utah Republican Sen. Mike Lee.
But those who created the Electoral College would not be alarmed if a presidential candidate won the popular vote but still lost the election for not getting enough electoral votes, Lee said.
“The founders would see such an outcome as a feature of our constitutional republic and not a bug that needs to be fixed,” he wrote in a plea for constitutional conservatives to join his defense of the college.
Princeton University history professor Kevin Kruse argues the growing margin between the popular vote winner and the winner of the Electoral College signals time for a change.
In 2000, Al Gore won the popular vote by half a million votes; in 2016, Hillary Clinton won it by nearly 3 million votes.
“At this rate, we’re on a course for an election soon in which one candidate wins the popular vote by a staggering margin — 8, 9 or perhaps 10 million votes — but is denied the presidency due to the archaic mechanisms of the Electoral College,” Kruse wrote in an opinion piece for MSNBC. “If that happens, the engine will explode, and perhaps our democracy will, too.”
Allen Guelzo, senior research scholar in the Council of the Humanities and director of the Initiative on Politics and Statesmanship in the James Madison Program at Princeton, said that criticisms of the Electoral College as undemocratic or unnecessary or invented to protect slavery are misguided.
The college was designed by the framers deliberately, like the rest of the Constitution, to counteract the worst human impulses and protect the nation from the dangers inherent in democracy, Guelzo wrote in an essay for the American Enterprise Institute.
“The Electoral College is neither antiquated nor toxic; it is an institution that helps preserve our constitutional system, and it deserves a full-throated defense,” he wrote.
If conservatives, voters in small states, and supporters of the Constitution don’t start to fight back to protect the Electoral College, the nation could face a situation where the only states that matter for presidential elections are California, New York, Texas and Florida, Lee said.
Although the term “flyover country” didn’t exist in 1787, the founders would have understood the concept, he said.
“Whatever word they might have used to describe that phenomenon was clearly something they were concerned about. In other words, they wanted to make sure that the small states had a legitimate shot at making a difference in the selection of the president,” Lee said.
Without the Electoral College, it could be argued that the presidential election should be driven by a handful of large media markets, he said. At minimum, he said, presidential candidates would go for big states and bombard large population centers.
States like Utah, Montana and Maine, he said, would become an “afterthought, if that,” in presidential races.
“The case for keeping it is the same as the case was for inserting it into the Constitution to begin with,” Lee said.
Alex Keyssar, a Harvard history and social policy professor whose latest book is titled, “Why Do We Still Have the Electoral College?” disagrees.
He said the notion that presidential candidates pay attention to small states because of the Electoral College is empirically untrue, referencing data that shows the number of visits and advertising dollars spent in small states.
“Candidates do not pay attention to small states unless they happen to be swing states,” he said. At least one small state, Nevada, came into play this year.
“This year’s election has been a weird election, right?” Keyssar said. “The Electoral College has been kind of a cliffhanger but it was a blowout in the popular vote.”
How it works
The Electoral College came about because the framers of the Constitution were very uncertain about how the fledgling nation should choose its chief executive.
There were some who wanted Congress to pick the president, but that raised separation of powers issues. Others favored a national popular vote, but detractors thought it would be unwieldy and that voters wouldn’t know the candidates.
“They went around and around,” Keyssar said.
In the end, a committee in 1787 created what has come to be known as the Electoral College, though that name is not found in the Constitution.
The system is a replica of Congress in that it has the same number of representatives and senators though it never legislates and dissolves after it meets, Keyssar said. It also imported the compromises on representation between large states and small states and slave states and free states, he said.
Keyssar said the framers took a “bit of a flier” on the idea, though a “considered” flier.
“They had very little idea about how it would work,” he said.
The Electoral College consists of a total of 538 members, one for each U.S. senator and representative, and three representing the District of Columbia. Each state has a number of electoral votes equal to the combined total of its congressional delegation, and each state legislature is free to determine how it chooses its electors.
In all but two states, electoral votes are winner-take-all, meaning the candidate who wins the popular vote takes all of the state’s electoral votes. Nebraska and Maine split their electoral votes by awarding one vote to the winner in each congressional district and two votes to the winner of the statewide popular vote.
On Dec. 14, electors will meet in each state and cast their ballots for president and vice president. The ballots are then immediately transmitted to the president of the U.S. Senate, which is the vice president, and will be counted in a joint session of Congress on Jan. 6, 2021.
The Electoral College is seen as an unfair institution by some, denying the presidency to the popular vote winner, a circumstance sometimes called an electoral “inversion,” according to an article in Proceedings of the National Academy of Sciences.
Some argue that it is biased in favor of small states on the grounds that their electoral allotments always include two votes representing the two senators that the state elects regardless of its population. Others claim that the bias actually favors more populous states because the winner-take-all feature gives them excess pivotal power, the article said.
Attempts to reform or abolish the Electoral College began almost immediately after its inception and have continued to this day.
After a tie in the acrimonious 1800 presidential election between Thomas Jefferson and Aaron Burr, states in 1804 ratified the 12th Amendment, which provides for separate votes for president and vice president and specifies that those individuals must be from different states.
There have been more constitutional amendments introduced in Congress on this subject than on any other, now numbering between 900 and 1,000, Keyssar said. He claims the Electoral College has endured for three reasons: the complexity of the system, political partisanship and the legacy of slavery.
The system is designed to balance its different features. One piece of it can’t be changed or removed without upsetting another.
For example, he said, if there were a tie or no candidate attained a majority of electoral votes, the election immediately reverts to the U.S. House, where each state has one vote regardless of size.
“That’s the real concession to the small states,” Keyssar said.
There has been widespread agreement the past 150 years that the “contingent” election provision is undemocratic and unfair, he said. But if that were taken away, something else would have to be changed as a compromise, he said.
“Even though everybody agrees that this thing should go, you can’t just tinker with that piece and leave the rest of it intact,” he said.
Keyssar also pointed to slavery. He said it gave white Southerners disproportionate influence in the choice of presidents, an edge that could and did affect the outcome of elections.
Though slavery was abolished after the Civil War, Blacks were disenfranchised by white state governments in the South in the 1880s. It created a situation were the South had representation in Congress and the Electoral College disproportionate to the number of citizens who could actually vote, according to Keyssar.
Southern whites had much more power per capita and per state than people in other states and had no incentive to support a national popular vote, he said.
Historians disagree on how big of a role slavery played in designing the presidential election system.
All of the states practiced slavery as the Constitution — which counted slaves as three-fifths of a person in order to determine the number of representatives each state would get — was being ratified, Guelzo said.
“If the three-fifths provision operated to give slave-holding states extra leverage in the Electoral College, it gave that leverage to every state, North and South alike,” he wrote. “The three-fifths clause gave no advantage to slave states until the Northern states, one by one, abolished slavery.”
Popular vote compact
Polls show Americans are divided over the Electoral College.
A March 2019 poll by Politico and Morning Consult found that 50% of respondents wanted a direct popular vote, 34% did not, and 16% didn’t have a preference. An NBC News/Wall Street Journal survey in May 2019 showed 53% of Americans support a move to a popular vote, while 43% wanted to keep the Electoral College.
The upcoming fourth edition of “After the People Vote,” edited by John Fortier, will include a section on public opinion on the college and proposals for amending the system.
“Truthfully, it’s not been popular. It’s definitely a minority position that would prefer it. If we were starting all over again, many people would say the national popular vote is more natural,” said Fortier, senior fellow at the Bipartisan Policy Center and a member of the American Enterprise Institute’s election watch team.
California-based National Popular Vote operates on the idea of one person, one vote.
“Why should a voter in Boca Raton be more important than a voter in pick anytown Utah?” said Pat Rosenstiel, National Popular Vote senior consultant.
The National Popular Vote Interstate Compact aims to use a national popular vote to elect the president. States in the compact pledge to award their electoral votes to the winner of the national popular vote.
The compact has been passed by 15 mostly Democratic leaning states and the District of Columbia, containing 196 electoral votes. It would take effect if states possessing another 74 electoral votes sign on, totaling 270 or a majority of the 538 available votes.
Colorado voters this past election approved a proposition to stay in the compact after Democratic lawmakers pushed it through its legislature last year.
Republican state legislators in Utah have floated the proposal a couple of times the past decade, but it has not gained traction. Two Republican U.S. senators from Utah, Jake Garn and the late Bob Bennett, were advocates for a national popular vote.
Rosenstiel said there’s too much focus on abolishing or eliminating the Electoral College. Most of the focus, he said, should be on how to have a national popular vote for president in 2024.
“There was not a national popular vote for president in 2016. There was not a national popular vote for president in 2020. It was a campaign based on a battleground system,” he said.
Thirty-five states were ignored in the presidential campaign and voters in those states don’t feel valued, Rosenstiel said, adding that the candidates targeted 15 battleground states where they made promises that weren’t relevant to flyover states.
“This current system is crushing under its own weight. It’s chaotic. It’s immoral. It leads to false crises in American democracy. That’s what you’re seeing right now,” Rosenstiel said.
Having a national popular vote doesn’t require a constitutional change because the Constitution permits states to determine who they choose as their presidential electors, he said.
Rosenstiel said the biggest fallacy about the Electoral College is that everybody wrongly believes that the winner-take-all system is part of the Constitution. In fact, state legislatures adopted the method over the years starting with Virginia more than 200 years ago.
States vote differently
Fortier said National Public Vote is a “little bit of an end run” around the Electoral College.
“It’s still a popular election. It’s just that people vote popularly through their states. The same is true in Congress. We don’t have anybody who represents a district that cuts across state lines. We are voting through our states,” Fortier said.
Fortier, who is “broadly in favor” of keeping the current system, said a national popular vote sounds good on paper but the country would have to move to a more federal system of voting.
“We vote very differently in Oregon than we vote in Massachusetts,” he said. “A simple point is if you wanted to reform the Electoral College, get rid of it, you’d probably have to go change a lot of those differences.”
States, he said, would have to change their rules for mail-in or in-person balloting and poll opening and closing times to be uniform. The Electoral College keeps elections from being run out of Washington and under whatever administration is in power, he said.
Lee also noted that if states can pass a law to join the National Popular Vote compact, they could also vote to repeal it.
Keyssar said he admires the progress the National Popular Vote compact has made, but doesn’t see it as a stable, long-term solution.
He favors a constitutional amendment for a national popular vote. He said he could live with an Electoral College system that apportions electors based on the percentage of votes a presidential candidate gets in each state.
“That would bring the electoral vote in much closer alignment with the national popular vote. It would eliminate the problems with winner-take-all,” he said.
Among what critics say are problems with the Electoral College is the “faithless elector” problem, those electors who cast their ballot in opposition to the state’s popular vote. In 2016, seven electors deviated from their states’ popular vote, the highest in any modern election.
A 10th Circuit Court of Appeals ruling found that Colorado’s decision to remove an elector’s vote was unconstitutional because the Constitution provides no express role for the states after appointment of its presidential electors. Once appointed, they are free to vote as they choose, according to the court.
But a Washington State Supreme Court upheld a state election law that said an elector who did not vote for the candidate he pledged to support could be fined up to $1,000.
The U.S. Supreme Court resolved the issue in a unanimous decision in July, ruling that states have the power to require presidential electors to vote for the winner of the state’s popular vote, including enacting laws to punish those who do not comply.
“The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee — and the state voters’ choice — for president,” according to the opinion delivered by Justice Elena Kagan.
Guelzo maintains that there are some “unsought” benefits in the Electoral College, unsought in the sense that they were not part of the original rationale for the system. He argues that it forces candidates to appeal to a wide range of voters and also discourages voter fraud.
“There is little incentive for political parties to play registration or ballot-box-stuffing games in Montana, Idaho or Kansas — they simply won’t get much bang for their buck in terms of the electoral totals of those states,” Guelzo wrote “But if presidential elections were based on national totals, then fraud could be conducted everywhere and still count.”
As a federal republic composed of 50 states, there’s more than just an abstract, theoretical harm that comes from making some states flyover country, Lee said.
“You want something in place to make sure that the value of each state government, the sovereignty of each state government is represented in whoever is going to serve as the chief executive officer of the federal government over the next four years,” he said.
Lee said doing away with the Electoral College would have a “deleterious” effect on federalism.
“I certainly don’t think it would strengthen it,” he said.
Guelzo goes even further.
“Abolishing the Electoral College now might satisfy an irritated yearning for direct democracy, but it would also mean dismantling federalism,” Guelzo wrote.
After that, he said, there would be no sense in having a Senate or states, except as administrative departments of the central government.
Lee said the National Popular Vote compact has been more successful than he would have expected.
“Do you really want to open the door to a system that could, and ultimately we would have to assume, lead to a president getting elected with overwhelming support from five or six of the most heavily populated states but who might be wildly unpopular in every other state?” he asked.
“I don’t think it would necessarily turn out like that today, but it’s not that difficult to imagine circumstances that could be very different, and I just don’t know if we want to light that fire.”