The Electoral College: A Vital Feature of Federalism or Just Plain Undemocratic?

Dec 12, 2016

UPDATED & REVISED DECEMBER 16. 

 

On Monday, December 19, barring any extraordinary developments, electors will meet in each state and officially cast their votes for the President and Vice President.  

Generally, the event attracts little attention, but this time around, the Electoral College is under intense scrutiny.   For the second time in 16 years, the winner of the electoral vote lost the popular vote. That's been a recipe for discontent, particularly among the losing party, which has been Democratic both times (Al Gore in 2000; Hillary Clinton in 2016).  Meanwhile, electors have been under fierce pressure from anti-Trump forces to upend his election.  

So far, one Texas elector has publicly said he will not vote for President-elect Donald Trump -- the lone Republican to sign onto a letter from ten electors, including all four Democrats from N.H., demanding that U.S. intelligence officials brief Electoral College members on reports that Russia intervened on behalf of  Trump's effort to win the Presidency.  Trump has dismissed the findings. 

We recently looked at the roots of the Electoral College system, including efforts to reform it.  

Political parties choose electors with party loyalty in mind. Only a handful of so-called “faithless electors” have voted against their party.  And though some states impose a small punishment – fines or misdemeanors – for these reversals, it’s rarely enforced.  Twenty-one states do not require electors to be faithful. Still, the possibility of a full-scale revolt is virtually nil, according to many political experts.  

One-person one-vote is a tidy slogan and a relevant principle for some purposes in defining congressional districts for instance. But it is crazy to let a government slogan define our government structure and process. Having the President elected by the states works well and has worked for a couple of centuries. We should be very careful. -- Exchange Listener, Robin

As Andy Smith, associate professor of practice in political science at UNH, said recently on The Exchange, the College is rooted in some of this country's earliest notions.

"The founders were very concerned about corruption in the chief executive. They were coming from a period when they overthrew a dictator in King George,” he said.  

“It was designed to reduce the likelihood that public opinion or public frenzy would be the cause of choosing the president and there would be this buffer system,” he said.  “They wanted to make sure anyone who held that office was a very competent thoughtful person who was not going to be politically corrupt.”

Based on the principal of Federalism, each state gets electors based on the number of senators (an automatic two for every state) and representatives (based on population). N.H. has four electors.  

So, does the Electoral College give small states like New Hampshire an unfair advantage because each automatically gets two senators?

"It does allow for the smaller states to essentially have a little bit more of a voice," said Lara Brown, associate professor and director of the political management at George Washington University.  “When we think about the overall distribution of votes, there is obviously a big difference between California having 55 electoral votes -- 53 of them owing to population and two owing to Senate allocations -- whereas New Hampshire only has 4. So we still have a system that is, like Congress in many ways, essentially tilted toward population. But the states do have some weighted say and they are important in this process.”

Vermont and other states left out in the political cold?

Chris Pearson, Senator-elect from Vermont, is on the board of National Popular Vote, an organization promoting a version of the popular vote.  

"New Hampshire with just four electors is an epicenter because it’s a battleground state,” he said. “It could go red or blue. So the candidates come -- they court you, they alter their positions to win your vote, and they are routinely not doing anything like that in 35 plus states.”

But battlegrounds do shift, said Lara Brown. “In the 1800s, New York was a battleground state for an entire century. In the next election, Wisconsin and Michigan will be battlegrounds.”

Pearson said presidential candidates routinely ignore as many as 40 states, as with the recent campaign.  If he wants to get involved in a Presidential election, Pearson drives to New Hampshire.

“That does not make sense. And it is very damaging for people's faith in the Democratic process, and it's very damaging for down ballot races and voter participation. And there are also benefits that you guys in swing states see when a President is in office. You get more No Child Left Behind waivers, you get more disaster declarations, you even get more visits from cabinet members.”

But blaming the Electoral College is misplaced, said Andy Smith. It's the entrenched two-party system that's to blame.

“There's nothing in the Constitution at all about political parties so the current system we have -- with political parties having a much greater control than ever expected -- is really driving a lot of the system,” he said.

Alternatives to Winner Take All?

In all states, with the exception of Maine and Nebraska, legislatures have determined that all of the electors go to the winner of the popular vote of that state.

So, a candidate who wins by a mere 51 percent gets all the electoral votes. Awarding the votes proportionally, "would force the parties to campaign in more places because they would be searching for that one or two extra electoral votes that would come from winning, say 60 percent, as opposed to 51 percent,” said Lara Brown.

States can vote to change how they allocate electors, Smith said, but that’s a steep order.  “If there's one thing that parties fear, it's change and uncertainty. And any sort of change to the Electoral College system is something that both parties would be very, very cautious about.”

Still, Maine and Nebraska have voted for change. In both states, Congressional districts award an electoral vote to district winners.

Brown said the ranked system, along the lines of what Maine just adopted, is worth considering. Voters would rank their preferences – first, second, third, etc. The candidates with the fewest first-place votes would be eliminated and their votes distributed to the top two, until there’s winner.

National Popular Vote?

As Brown explains it, a straightforward national popular vote could invite all sorts of problems – if a nationwide recount were necessary, for instance.  Containing recounts to individual states (as with Florida in 2000) prevents electoral chaos, she suggested.

Pearson’s organization has its own plan for changing the system, and nine states and the District of Columbia have so far signed on, though all so far are blue states.

Under the measure, a state awards its electoral votes to the winner of the national popular vote. But the measure is triggered only if states totaling 270 electoral votes have joined.  The effort is still a good deal short of that goal.

“Along the way we make every vote equal. Most people think that one person one vote has something to it.” Pearson said. “We make every vote matter in every state in every presidential election. And we guarantee that the candidate that gets the most votes wins the election.”

Would this be challenged in Court? Will congress have to approve?

Here’s how Pearson sees it: “Our bill is an interstate contract. The Constitution says when states enter into contracts, Congress has to agree. The case law for 125 years has been very clear that Congress plays no role in interstate compacts that don’t impinge on federal powers. And because our agreement is exclusively a state power we don’t believe Congress should play a role.”

If enough states signed on, the plan would likely face a court challenge, with the Supreme Court eventually weighing in.