Donald Trump’s election as President of the United States last week marks the second time in 16 years that the winner of the Electoral College did not receive the most votes overall. Naturally, many Democrats and independents staunchly opposed to Trump took to social media to denounce the Electoral College as arcane and in need of abolition. But just what exactly is the Electoral College, what is its history, and is it effective?
Let us explore:
What is the Electoral College?
The Electoral College is composed of 538 electors who meet the December after a presidential election. A candidate needs an absolute majority of votes to win the election. In our case, 270 votes are required to be president.
Each state is allocated a certain number of electors based on that state’s representation in the Congress. Therefore, each state must have a minimum of 3 electors, because each state has 2 Senators and at least 1 member of the House of Representatives. The District of Columbia, while not a state, is allocated as many votes as the state with the least number of electoral votes has via the 23rd amendment. The Territories of the United States, however, do not have representation in the electoral college.
Every ten years, the electoral votes are reallocated based on whether a state lost or gain population since the last census. Current Federal law caps the members of the House of Representatives at 435. This means that states which see no change or lose population risk losing a district in their state and thereby losing some representation in the Electoral College.
Contrary to popular belief, voters in presidential elections actually cast voters for the “electors” who meet in December. Most states have a “winner take all” system for allocating electors. If Candidate A wins more votes than Candidate B or C in that state, he or she is entitled to all of the electors from that state. However, Nebraska and Maine are different. Nebraska has 5 electoral votes, with the winner of the statewide popular election being awarded 2 votes, and the rest of the votes being allocated separately based on who wins each of Nebraska’s 3 congressional districts. The same process is used in Maine, with 3 of the state’s 5 votes going to the winner of the popular vote.
If no candidate wins 270 electoral votes, the Constitution provides that the election is to be decided by the House of Representatives, where again, an absolute majority is needed in order to win.
The Constitution prohibits Senators, members of the House of Representatives, and executive appointees from being Electors. Electors are not bound to vote for the candidate who wins their state. While some states have laws that punish these so-called “faithless electors,” those who break their pledge to vote for the winner of their state, there has yet to be a Supreme Court ruling on the constitutionality of these laws.
Faithless electors are rare, but they do happen. In 2000, for example, an elector from the District of Columbia, which Al Gore won, abstained from voting. Another famous example is from the 1972 election in which an elector who had originally pledged to vote for Richard Nixon and Spiro Agnew ended up voting for the Libertarian Party’s candidates, John Hospers and Tonie Nathan. This elector’s vote for Nathan is the first time a vote for a female candidate had ever been cast in the electoral college.
Is the Electoral College Effective?
Let us consider overall success of the Electoral College. And by that I mean, is the winner in the Electoral College the winner of the of the popular vote? The answer is, most of the time, yes. There have only been 5 elections in which the candidate receiving the most votes nationwide did not become President of the United States: 2016, 2000, 1888, 1876, and 1824.
The year 1824 is remembered for being host to a particularly nasty campaign season. John Quincy Adams was elected by the House of Representatives even though Andrew Jackson had won both the popular vote and more electors than any other candidate. In 1876, the Democratic Party candidate, Samuel Tilden, was ahead by 19 electoral votes over Republican Rutherford B. Hayes, when issues surrounding certain southern electors surfaced, a deal was struck that saw the end of Reconstruction in the South, and a Republican once again.
Interestingly, the 1888 election is the reason Grover Cleveland is both the 22nd and 24th President of the United States. Having angered Party bosses in New York during his first term, Cleveland would lose his home state but still carry the popular vote over Benjamin Harrison. Cleveland would return to the Presidency 4-years later, winning both the Electoral College and the popular vote.
The election in 2000 was not decided by the House of Representatives because the Supreme Court ordered that recounting in Florida be stopped as the recount could not be fairly concluded by the time of the state imposed deadline. Florida’s electoral votes were thereby declared for George Bush who then had enough to surpass the 270-vote threshold.
The Electoral College is a device unlike anything in the world, so why does it exist in the first place?
In order to understand the need for and the importance of the Electoral College, it is necessary to make a few things clear. First, the United States of America is not a democracy. In our Constitutional Republic, through a process called “federalism,” legislation is passed not by a direct vote of the people but through their democratically elected representatives both at the state and federal level.
Under the Constitution, after the federal government, the states retain much of the power to make decisions about our government and not a vote of the electorate at large. The original constitution made this concept more obvious. For example, Senators were chosen by the various State legislatures for 6-year terms, but this is no longer the case because of the 17th amendment.
Another example of this concept has to do with ratification of constitutional amendments. The constitution lists 2 ways an amendment may be adopted: A proposed amendment is passed either at a “convention of states, which first must be called by 2/3rds of the state legislatures (this method has never been used) or by a 2/3 vote in both houses of Congress and is then ratified by 3/4ths of the state legislatures. Each state’s ratification carries equal weight in terms of achieving the necessary 3/4ths approval. Speaking specifically to republicanism, a unanimous Supreme Court held in Hawke v. Smith that it is unconstitutional for a state legislature to submit consideration of a proposed amendment to the general public for ratification or rejection.
We can see how even though major changes have been made to the constitution over time, the fundamental principles of republicanism survive today.
Alexander Hamilton said of this method for choosing the President in Federalist No. 68 that it, “unites in an eminent degree all the advantages of the union of which was to be desired.” But what exactly did the Founders desire when crafting the electoral college? Federalist No. 68 lists three desires.
The first desire was to prevent corruption. In many western governments, the executive is appointed by and subject to the legislature. The Founders worried that election of the executive in this manner would give the legislature too much control over the president, and that the various congressman might trade away their votes for President in exchange for some personally lucrative legislation in the future.
Secondly, the Founders wanted to make the President wholly accountable to the people. Unlike the Prime Ministers in other countries, the President cannot be removed from office on a vote of no-confidence. Instead, the President receives his or her governing authority by winning over a majority of the electors of the states.
All of this cumulates in the third desire: the desire to keep unqualified candidates from accidentally ascending to the Presidency.
“This process of election” writes Hamilton, “affords a moral certainty that the office of the President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”
Remember, the Constitution was designed to pursue the goals of federalism and republicanism. The Founders foresaw multiple people running for the Presidency every 4 years, many of them regional candidates with little chances of winning. It was highly probable, then, that no candidate would receive the majority of the popular vote. In this way, the electoral college suppresses those fears because, as we know, the Electoral College requires a candidate to receive an absolute majority of the electoral votes, and if that is impossible, he or she must receive an absolute majority of the votes in the House of Representatives.
The Electoral College, combined with the cap on the number of seats in the House of Representatives, ensures that a candidate cannot win the confidence of just a few states and ascend to the Presidency. It also ensures that the President of the United States is not whoever can get just one more vote than any other candidate that decided to run that year. The President is whomever commands an absolute majority of the electors chosen by the people of the 50 states and the District of Columbia. The electors carry with them a tradition of respect for the individuality of the states and a dedication to the principle that the United States should be united in its decisions, and not automatically subject to the whims of an unsure, or even an overly confident, electorate.