On this day when the designated Electors meet in each state to cast the votes that will elect the next president, we focus on the threat the Electoral College (EC) poses to the health of our democracy.
Two of the last five presidential elections (2000 and 2016) were won by a candidate who lost the popular vote. And this year, when Biden easily won both the popular and electoral votes, Donald Trump’s campaign to nullify the election questioned the popular vote in individual states. So even though the EC did reflect the popular vote this time, Trump is trying to undermine it, state by state.
The Electoral College made sense to the 1787 Constitutional Convention made up of propertied White males who mistrusted the masses. They wanted to consult the voters (i.e., most White males), but they wanted Men of Substance to decide who would be president. But within a decade the EC had evolved to vote in line with the popular vote in each state. Since the Senate has two senators per state, regardless of population, and the number of votes is the whole number of representatives plus senators, small states have an advantage in the EC. That worked alright most of the time, giving the EC majority to the candidate with the most votes.
Abolishing the Electoral College would take a constitutional amendment (2/3 vote in both houses of Congress; ratification by 3/4 of states). This just won’t happen: Republicans dominate too many states.
But the EC now has a systematic bias toward the Republicans. The current party system lets Republicans winning in most (23) of the small and medium-sized states most of the time. With Texas, Florida and Ohio, they can win the EC without winning the national popular vote, as they did in 2016. They failed in 2020 by losing several states they had won in 2016: Arizona, Georgia, Michigan, Pennsylvania and Wisconsin. Trump’s post-election campaign has focused on trying to flip just those states.
If we elected the president simply by a popular vote, we would not have had minority presidents elected in 2000 and 2016, and we would not have had to go thought the agony of Trump’s 2020 campaign to nullify the popular votes in several states. Trump could still have made trouble, but he couldn’t have hoped to flip the election by intimidating state officials in a few states. He would have had to fight on a national scale to overturn a national popular vote.
The problem, of course, is that the EC cannot simply be abolished. It would take a constitutional amendment (2/3 vote in both houses of Congress; ratification by 3/4 of states). This just won’t happen: Republicans dominate too many states. Why would they vote to abolish an institution that favors them systematically? It would take the Republicans winning the popular vote and losing the EC to bring them on board for abolishing the EC.
There are work-arounds. Two states (Maine and Nebraska) allocate one electoral vote to each congressional district, and two statewide. Any state could do this. Any state could also stipulate legally that its electoral vote be allocated as closely as possible to proportionality. Thus, in my state of Pennsylvania, which is usually closely divided, the electoral vote would likely have been 10-10, rather than all 20 votes going to Biden. If all states did this, the national electoral vote would be closer to the popular vote.
The most likely work-around is the National Popular Vote Interstate Compact (NPVIS), whereby states agree to allocate all their electoral votes to the winner of the national popular vote. Already, 16 jurisdictions with 196 electoral votes have enacted this commitment into law. It would take effect when states with 270 electoral votes have enacted it. So it is now 74 electoral votes short.
This is a work-around, not an ideal. My main problem with it is that it perpetuates and nationalizes the winner-take-all feature of the EC, thereby officially forgetting about the large numbers of voters on the losing side. But it’s the most likely option now. We ought to get behind it and try to get that number up to 270!