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Posted: 11:48 a.m. Wednesday, Nov. 7, 2012

The Electoral College – Why Don’t We Use Popular Vote?

By Adam Goldfein

The main purpose of the Electoral College as the framers of our Constitution envisioned was twofold:

  1. It insulated the election from a potentially ill-informed general population, who did not have adequate information about the person they were choosing.
  2. It prevented populous large states from ignoring and overriding the interests of smaller states

The first function is all but gone and the second function is being heavily debated against by those in favor of a direct popular election.

The Electoral College currently is a system by which each state gets a certain amount of electors which cast votes for a presidential candidate. Candidates need 270 out of 538 Electoral votes in order to win the Presidency. The way the amount of electors is determined is so that larger states get more overall, but smaller states get more electors per resident. This strikes a balance where smaller states have more leverage than they would under a direct popular vote.

How the electors are selected is left up to the states. Currently, 48 states determine the electors by direct popular vote in the state, with a winner take all system. Only Maine and Nebraska do not have winner take all systems. The electors are chosen by who they are expected to vote for. For example, a vote for Mitt Romney in Georgia is actually a vote for a series of electors who are expected to vote for Mitt Romney. Laws that require electors to pledge which candidate they will elect exist in 26 states, and additionally Virginia has an advisory law using the language “Shall be expected” in reference to an elector’s vote. In the rest of the states, it is legal for an elector to choose a candidate other than the one they are expected to (called “faithless electors”), although this rarely happens and has never directly affected the outcome of an election.

The choice to let each state determine how they choose their electors was a deliberate choice by the framers of the Constitution.  There were three ideas being considered at the time. One idea was to have Congress choose the president. However, people felt this would be a very divisive issue which would polarize Congress and make it difficult to work. A second idea was to have State legislatures select the president. The fear was that this would make a president beholden to State legislatures which would erode federal authority. They also considered having a direct popular vote determine the president. The reason they decided against this was that they did not think the general population would be able to get enough information about a candidate to make an informed decision, especially about candidates in other states. Additionally, they believed that there would be a tendency to vote for candidates from their state or region. It could be that a candidate would win without a true majority (over 50% of all votes), and elections would be determined by large populous states.

The solution they came up with was the Electoral College. Each state was allotted a number of electors equal to the number of its U.S. Senators (two) plus the number of its U.S. House Representatives. This means a minimum of three electors for a state. The manner of choosing the electors was, and still is, left to the individual States, thus respecting the rights of states who were very suspicious of a central national government. Members of Congress and Federal employees were prohibited from serving as electors to maintain a separation of powers. Electors were required to cast two votes in order to prevent states from simply choosing local favorites. The idea was that the second choice would end up winning overall. The winner of the most electoral votes would become the president, but only if it was an absolute majority (over 50%). If it was not, then the choice would be made by the U.S. House of Representatives out of a pool of the top 5 candidates. In the House, each state would cast only one vote with an absolute majority being required to elect a president. The vice president would go to whoever remaining had the most electoral votes. If that too was tied, the Senate would break the tie.

A problem with the system arose with the advent of political parties. In 1800, Thomas Jefferson and Aaron Burr, both of the Democratic-Republican Party, received the same amount of electoral votes. The tie was eventually resolved by the House in favor of Jefferson, but not until 36 tries and serious political dealing occurred. As a result, States adopted the 12th Amendment in 1804.

The 12th Amendment requires that each Elector cast one vote for president and a separate vote for vice president. Electors had to choose at least one of these votes to go to someone outside of their state. Additionally, in the event of a tie the House would choose from the top three presidential contenders and top two vice presidential candidates. The other parts of the Electoral College remained in place and continue to this day, with minor statutory changes.

The problems and controversy that arose out of the 2000 election are nothing new. In 1824, President John Q. Adams won against Andrew Jackson despite losing the popular vote, the first time this happened. It should be noted that during this time, six of the 24 states appointed Electoral College members through the State Legislature.

In 1876, one of the most controversial elections in U.S. history occurred. Samuel Tilden, a Democrat, won the popular vote by over 3%. However, some Republicans contested 20 electoral votes which were close. A commission was created out of seven Democrats, seven Republicans, and one independent to determine the winner. They agreed that the results of the committee would be binding unless overturned by both the House and the Senate.

The independent on the commission was elected as a Senator and resigned from his position. He was replaced by a Republican. The commission voted strictly along party lines and gave all 20 contested votes to Republican Rutherford B. Hayes. The Republican Senate upheld the decision. The Democrats threatened to filibuster, but eventually agreed to a resolution that would withdraw federal troops from the south, ending reconstruction and the enforcement of equal voting rights for blacks.

Again in 1888, a candidate became President without the popular vote. Grover Cleveland won the popular vote but Benjamin Harrison won the Presidency with narrow victories in the states he carried and heavy losses in the states he lost.

This brings us to 2000 and the incident of the hanging chads in Florida. George Bush officially won by 537 votes in Florida, but only after a recount and a 5-4 Supreme Court decision. This gave him the Electoral College victory despite not carrying the popular vote.

Several states are pushing for a National Popular Vote. California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Vermont, Washington, and the District of Columbia all have laws stating that their electoral votes will automatically go to the person who wins the National Popular Vote. These laws only take effect, however, when enough states sign on to have the 270 electoral votes needed to win. This brings into question the constitutionality of such laws, as they essentially allow a few large states to circumvent the amendment process in order to abolish the Electoral College. In such a strategy, only 11 states would need to sign on in order for the laws to take effect, but based on the Electoral College numbers of the states already on board, it will take more than that. Larger states have more reason to sign on, because they are the most adversely affected by the Electoral College in terms of voting power per person.

A major benefit to the Electoral College is its ability to reduce voter fraud. Because most states heavily favor one candidate, significant fraud would have to occur in order to change the outcome in these states. This allows anti-fraud resources to be concentrated in “battleground” states. A direct National Election would require nationwide fraud detection and it would be much harder to detect all instances.

One drawback of the Electoral College is that it results in candidates focusing their attention in a few “battleground” states. States that are already “in the bag” are generally ignored, leaving their interests on the backburner. However, the primary system somewhat alleviates this tendency by forcing candidates to campaign in states that are solidly dominated by one party, and in doing so address the issues facing those states.

Additional Resource

The United States Constitution and Amendments

Cornell University Law School, 12th Amendment

How the Electoral College Works

The U.S. Constitution, The Electoral College

Why Was the Electoral College Created?

Controversial Elections

The Peach Pundit, Georgia’s Romney Electors Named

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