Twice, in the five presidential elections since the year 2000, two candidates for the U.S. presidency, who won the popular vote, lost in the Electoral College.
In 2000, Albert Gore Jr won the popular vote against George W. Bush by 543,895 but failed in the Electoral College when the U.S. Supreme Court overruled the Florida Supreme Court’s decision to recount disputed ballots in several Florida counties. This decision gave Bush a narrow edge in the popular vote in the state and victory in the Electoral College: 271 to 266. This unprecedented and controversial U.S. Supreme Court intervention in the election of the president of the United States cast a harsh spotlight on the serious deficiencies in our system for electing presidents.
In 2016, Hillary Rodham Clinton, who won the popular vote by 2,868,686, lost the Electoral College: 304 for Donald J. Trump and 227 for Clinton. A shift of voting patterns in just a few states would have changed the electoral count in Clinton’s favor.
Likewise, according to a National Public Radio analysis of the voting patterns in 2020, a shift of just 44,000 votes in three states, Wisconsin, Georgia and Arizona, would have created a tie between Trump and Joseph R. Biden, causing the election to be decided in the U.S. House of Representatives where each state gets just one vote, making Wyoming, population c. 560,000, equal to California, population c. 39,200.000. In the 2020 election, Biden received the largest popular vote of any candidate in U.S. history, defeating Trump by over 7 million votes.
How did we get such a convoluted system! And Why?
Our founding fathers didn’t trust us – ‘We the People’ — to vote directly for the president. The framers of our Constitution feared the tyranny of the majority. They deliberately rejected the direct election of the president by popular vote because they did not trust voters to make good decisions. Accordingly, they set up a system designed to distribute power among certain class and economic interest groups and political institutions to protect established structures and moderate change. They also wanted an electoral system that protected them from a dictator or king.
The smaller states feared domination by the larger states such as Massachusetts, New York, Pennsylvania, and Virginia. The slave states feared domination by the anti-slave states. And, most states feared a federal government that would dominate the rights of the individual states to self-governance. To accommodate these strong centrifugal forces fearful of a powerful president at the head of a powerful federal government, the framers created a system of electors for electing the president of the United States. For convenience we refer to this system as the Electoral College, though that term never occurs in the Constitution. [See my WCTimes essay January 04, 2017 on the issues involved in the direct election of the president.]
The Electoral College
To protect individual states from federal domination, the Constitution grants each state the right and power to determine how the electors from their state are selected. [Limits to this power is still a matter of dispute: ArtII.S1.C2.3 State Discretion Over Selection of Electors.]
The number of electors from each state is equal to the number of U.S. senators and the number of U.S. representatives. Each state gets two U.S. senators regardless of its size or population. The number of representatives is determined by population. Thus, the state of Wyoming with far less than one million people has two U.S. senators, the same as the state of California with 39 million people The current number is 538 including 3 electors now assigned to the Federal District of Columbia.
Normally, the electors from each state vote for the candidate who receives the most votes in that state. However, the electors – even if they have vowed to support a particular candidate or to vote according to the popular vote in their state or congressional district – are not constitutionally bound to do so. Electors may vote for any person they judge best qualified to be president of the United States.
The Faithless Elector
In the 2016 presidential election, seven electors refused to vote in accordance with the popular vote of their state. Five electors refused to vote for Hillary Clinton, two refused to vote for Donald Trump. Three voted for Colin Powell; one each for John Kasich, Ron Paul, Bernie Sanders, and Faith Spotted Eagle. The two electors who refused to vote for Trump created a movement called the Hamilton Electors which tried to convince other electors to defect from Trump. In Baca v. Hickenlooper, a federal court ruled that states cannot penalize faithless electors “no matter the intent of the elector or the outcome of the state vote.” A U.S. Court of Appeals ruled that the attempt by the state of Colorado to negate the vote of the faithless elector “was unconstitutional since the founders were explicit about the constitutional rights of electors to vote independently. “
Today, there are groups urging people to get elected as electors so that they can vote against Kamala Harris, regardless of the popular vote in their states. To quote the 2019 Brookings report by Darrell M. West: “Based on this legal ruling and in a highly polarized political environment where people have strong feelings about various candidates, it is possible that future faithless electors could tip the presidency one way or another, thereby nullifying the popular vote.”
A Possible Fix
Amending the U.S. Constitution is a very difficult undertaking. The National Popular Vote Interstate Compact (NPVIC) has been formulated to construct a more efficient path to electoral reform. To date the Compact has been adopted by seventeen states and the District of Columbia, accounting for 209 electoral votes. According to the Compact the states and the District of Columbia agree to award all their electoral votes to whichever presidential ticket wins the total popular vote in the national election. In 2014, the State of Illinois became the third state to join the Compact.
The Electoral College as it currently functions gives undue power to the least populous states, penalizes the states with robust economies and diverse populations and interest groups, and undermines the respect of the people for lawful authority and their trust in government.
The Electoral College is vulnerable to the tyranny of a well-organized and disciplined minority determining the election of the president against the will of the majority of the citizens. The electoral system denies proper representational voice to citizens who reside in metropolitan areas, effectively disenfranchising people of low income, sexual minorities, and women who work for reproductive rights.
The Electoral College makes legal fictions of the principles of one person/one vote and equal representation so important to the foundations of the democratic processes of our Republic.
Please work to abolish this dysfunctional and nonrepresentational system.
September2024 © [email protected]
Published 15 September 2024 Windy City Times Media Group Chicago
https://windycitytimes.com/2024/09/15/opinion-its-time-to-abolish-the-electoral-college/
Nick Patricca is professor emeritus at Loyola University Chicago, member of PEN San Miguel MX Chapter, member TOSOS Theatre Collective, NYC.