Electoral College – Keep or Toss?

Posted on Categories Constitutional Law, Election Law, Political Processes & Rhetoric, President & Executive Branch, Public

electoral-college-2016By Mathew O’Neill

During the Twilight craze, the country was split between Team Edward and Team Jacob.  The battle was over Bella Swan’s heart.  Edward, a 200-year old vampire, was devastatingly handsome, kind, chivalrous, and his skin sparkled in the sun.  Jacob, a teenage werewolf, was brash, muscular, impulsive and fiercely protective of his tribe and Bella.  Oh, and Edward murdered a few thousand people but felt badly about it, while Jacob only killed vampires but had a bad mullet.  I was decidedly Team Jacob.

After the 2016 election, the country is split about the Electoral College.  There are again two camps: Team Keep and Team Toss.  Before going into the merits of each, some brief background.

As of this writing, Donald Trump won 56% to 44% in the Electoral College (290 to 232), while Hillary Clinton leads in the popular vote count 62,523,844 to 61,201,031.  So, while Trump romped to an 11-point Electoral route, he actually got clobbered by 1,322,813 votes.  What gives?  I thought this was a democracy.

This anomaly is the work of the venerated Electoral College.  The College was created in Article II, Section 1 of the Constitution, which states in part:

The executive Power shall be vested in a President of the United States of America.  He shall hold his Office during the Term of four Years, and, together with the Vice President chosen for the same Term, be elected, as follows:

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 representative to which the State may be entitled in 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 Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The 23rd Amendment granted at least three Electors to the District of Columbia, bringing to 538 the total number of current Electors: 435 Representatives, 100 Senators and the D.C. trio.

The Constitution does not direct how the states must “chuse” their Electors.  In colonial times, most states did not call for a popular election to select their Electors.  Instead, party bosses made those decisions.  Eventually the cigar-smoke cleared, and today all states and D.C. hold a general election for President and Vice President, and nearly every state (48 of 50) has chosen to award all of its Electors to the winner of that state’s popular votes.  Thus, because the margins in various states can differ (Clinton won California by 3.5 million votes; Trump won Florida by 20,000 votes), it is possible to win the Electoral College, and thus the keys to the White House and a cool plane, while at the same time lose the overall popular vote.

Which raises the question: is this acceptable?

Team Toss says “No!”

Twice in the past 16 years, the loser of the popular vote has been declared the winner and President of the United States.  This frustrates the core purpose of democracy, which is to allow the people to govern themselves.  Yes, back in the wig-wearing days, our forefathers did not give much credence to actual voting rights – under the Constitution only the House of Representative was actually elected, and only white men could vote.  But the Country has progressed, securing the right to elect all of our leaders, and extending the right to vote to all adult citizens regardless of gender, color or creed.  Now we must take the next step and amend the Constitution to ensure our President is chosen by all of our citizens.

The Electoral College system has effectively removed over thirty states from the Presidential election process.  Candidates spend all of their time in “battleground” states, ignoring states considered reliably red or reliably blue.  We have all heard the grumbling from our minority party friends in these states: “My vote doesn’t count.”  This creates a palpable political disaffection, one that further poisons our fractured system.  If all votes were counted equally, all citizens would be engaged, and the candidates would campaign all across the country.

The current “loser wins” system delegitimizes the office of the President.  If some voters in 2008 were so angry about the result that they questioned a President’s birthplace (a President who huuuuugely won both the Electoral College (365-173) and popular vote (69 million to 59 million)), imagine how angry some Clinton backers are to see her opponent waltz into the White House after coming in a distant second in the popular vote.

Finally, Team Toss points out, the Electoral College system creates a real possibility of a “rigged” election.  One Bernie Bro Elector from the State of Washington vowed he would refuse to cast his Electoral ballot for Clinton, even if she won his state (she did, by 500,000 votes).  We’ll see.  There is even a movement afoot by some angry Democrats (on Facebook, but still) to demand that on December 19, 2016, the Electors cast their ballots for Clinton because she won the popular vote.  Even a mediocre Hollywood screenwriter could come up with a script where some dark money overlords buy off the Electors of a key state to steal the Presidency.

In sum, it is time for this antiquated system to go!

Team Keep, meanwhile, says “Hold on, now.”

The Founders of the United States of America made their opinion very, very clear: we are not a pure democracy.  History teaches that pure democracies eventually devolve into mob rule, where the minority of the electorate is oppressed and inevitably rises up against the oppressors.  The Founders knew how to draft a Constitution that would elect the President by popular vote, but decided not to do that to create a buffer against potential mob rule.  They chose a representative democracy, and their wise choice should be respected.

The Electoral College ensures all states have a say in who is chosen President.  We are, after all, the United States of America, not just America.  If there were no Electoral College, the campaign would be fought only in the large cities and populous states, forsaking those residing in the great, vast states in the interior of the country.  The Founders’ intent could not be more clear on this point, by allocating two Electors to each state, regardless of population.

The existing system ensures certainty of the result of a Presidential election.  We all read the ridiculous assertions of a “rigged” election in the final weeks of the campaign.  Imagine, then, the cries of fraud if an election was decided by less than 100,000 out of 122 million votes.  The loser could demand a nationwide recount, to be completed in a nine-week period.  This would bring the country to a halt, clog the courts for years, and leave the transition of power of the world’s greatest country in chaos.  By reducing the winning equation from 125 million votes to 538 Electors (with any tie broken by the gerrymandered House), that frightening possibility is eliminated.

As a practical matter, amending the Constitution to change the Electoral College seems unattainable.  The so-called Every Vote Counts Amendment would require approval of two-thirds of the House and Senate and ratification by 38 states.  When the outrage builds after one party loses, why would the winning party go along with this?  And how likely is it that 38 states, many of which have just cast their Electors for the winning party, choose to upend the system?  It won’t happen.

Nor should people support the constitutionally subversive effort to have states with 270 Electoral votes sign a “compact” to vote all of their Electors for the popular vote winner.  So far, 10 states have signed the National Popular Vote Interstate Compact.  The problems with this idea are many, Team Keep notes, including, most fundamentally, that some fraction of the total states would unilaterally be determining how to elect the President.  The unrest from such a compact in action is not hard to imagine: what would be going on, right now, if a number of states that carried for Donald Trump were poised to instead cast their Electoral votes for Hillary Clinton?  In the words of Dr. Peter Venkman: “Human sacrifice, dogs and cats living together, mass hysteria.”

Finally, John King would have nothing to do on Election Night if we did not elect the President on a state-by-state basis.

* * *

Team Keep, in the end, resembles Team Edward.  Several hundred years wise, steady, and sharing the luminosity of the great Constitution of the United States of America.  Team Toss, meanwhile, resembles Team Jacob.  Sixteen years old, full of righteous anger, and ready to transform our electoral landscape at any November full moon.  Edward won out in the end, and so will the Electoral College.

2 thoughts on “Electoral College – Keep or Toss?”

  1. I believe the “winner takes all” electoral votes of a state is the key Issue. It renders the popular vote as meaningless before campaigns even start in the 30 states that are considered decidedly “Red” or “Blue”. In the more populated states (large electoral vote), Over 10 million peoples votes (if all voted)could be given to a candidate they did not vote for. That is why voter turnout is not 100% in every state. Citizens believe their vote doesn’t count. This creates that “palpable political disaffection” and I believe removes peoples “buy-in” to the American Democratic process. They lose their loyalty, respect, and care for this country. The current “winner takes all” electoral process has, over time” perpetuated divisiveness, distrust, disloyalty and apathy. Any organization where people perceive their beliefs, voice, vote and they themselves are irrelevant is doomed to fail. It is this perception that the electoral process has perpetuated in our country. Equality and participation of all has broadened in scope and meaning, but change has not followed in the electoral process. We need not throw out the added protections it provides, we just need to change how votes are allocated. My idea for how electoral votes should work is in a following comment.

  2. Changing or removing the Electoral College process from the Constitution is extreme and would likely be unattainable. The process needs to change to reflect the following issues/changes.
    1. The popular vote is vitally important
    2. A broadened scope and meaning of “equal rights”.
    3. The divisiveness, distrust, disloyalty and apathy perpetuated by peoples perception that the electoral process (among other factors) makes them irrelevant.
    4. Renew the meaning of “We the People” where every person is respected.
    5. Provide an incentive for states to need to make an effort to get the votes of all eligible voters.

    Here is what I see as the key elements of the changes.
    1. The Electoral College process is based on the winner of the popular vote.
    2. Any party can collect electoral votes.
    3. Electoral College voter numbers are kept the same as currently.
    4. The “winner takes all” electoral votes is scrapped
    5. Electoral votes are cast according to votes received by each Candidate.
    6. Each electoral vote is based on a fixed number of votes based on:
    1. A fixed number of votes determined by a fixed percentage (90% for example) of all eligible voters in their state divided by the number of electors.
    7. An electoral vote would be awarded every time that fixed number of votes is cast for a candidate.
    8. A partial electoral vote could be awarded to candidates based on percentage of total votes needed for an electoral vote. Could be limited to reaching each 25th percentile of votes. No electoral votes for total under the next percentile.
    9. Total numbers of electoral votes may be lower than the number of electors if number of people voting is low.
    10. All voters would be given a chance to vote. Beneficial for states to make sure everyone gets the chance to vote.
    This is just a rough concept of how the process could be changed. Any plan should be more reflective of the popular vote. Even with instant communication and computerized reporting, the Electoral College would still have, what I believe its intended purpose was, to bring in person verification of their states votes.

    Change is needed. The Dec. 19 Electoral College vote could be much sooner since it is still on the time schedule used when mail was delivered by horse and some of the electorate had to travel for weeks by horse and stagecoach, in wintry weather to vote.

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