The Electoral College: We Can’t Live with It; We Can’t Live Without It

The main value of the Electoral College today is that it generates clear winners when the popular vote is unclear. One might fairly ask how the popular vote for president in 2016 was not clear – Hillary Clinton received over 500,000 more votes than Donald Trump in the most current count, after all. And that’s true enough. But majority rule is not about who gets the most votes, it’s about who receives a majority of the votes. And Hillary Clinton did not receive a majority of the popular vote.

In a majoritarian system, receiving 47.8 percent of the vote is not all that more-morally compelling than receiving 47.3 percent of the vote. A majority of voters cast their votes against Clinton. As they did Trump as well.

There is, however, a majority vote in the Electoral College, which makes Trump’s election constitutionally non-problematic. As a majority in the Electoral College made, say, Bill Clinton’s election as President constitutionally non-problematic. And as the College made Abraham Lincoln’s election constitutionally non-problematic as well. (Not that Trump is any Abraham Lincoln.)

To be sure, the number of Electoral College electors per state set by the Constitution does overweight the number of electors in less populous states. The weight of a resident of Wyoming in the Electoral College is over 3.5 times greater than the weight of a resident of California. But the one-person one-vote offense of the Electoral College results from adding Senate representation with House representation. Residents of Wyoming have over 60 times the per capita representation in the U.S. Senate than do residents of California. The Electoral College looks to be a model of equalitarianism by comparison.

To be sure, it is impossible to imagine that the Electoral College would be adopted today if Americans were handed a constitutional blank slate. (Although I shudder to think what might result if that were to happen.) But the difficulties of amending the Constitution even with a strong consensus are daunting. And despite strong elite opposition to the Electoral College, it hasn’t taken on much energy as an object of popular reform.

But the constitutionally-required allocation of votes across the states, with smaller states receiving a disproportionate share of votes in the Electoral College relative to population, is not the reason that Trump won the Electoral College. The reason for this is the non-constitutionally required policy implemented in almost all of the states of allocating their state’s electoral votes on a winner-take-all basis. So a candidate winning 50.1 percent of the vote in these states nonetheless receives 100 percent of the Electoral College electors from those states.

The manner of how states appoint their electors is delegated by the Constitution to the states. (Exactly what that means is a topic in its own right.) States could easily decide to appoint their electors on the basis of popular vote, with some selected rounding criteria. But doing so decreases the impact the respective state would have on the outcome of the Electoral College vote. Majority-party partisans in each state presumably want to maximize, not reduce, the contribution of their states’ electors to their party’s presidential nominee. Indeed, as more states adopt the reform of allowing their electoral votes to be split, the incentives for the remaining states to keep a winner-take-all system would only increase. So it’s highly unlikely many states will voluntarily change their system, the policies adopted in Maine and Nebraska notwithstanding. And the Constitution does not allow Congress to force states to change their systems.

But even if states were to adopt this reform on their own, while it would smooth over the one-person, one-vote problem, it would only amplify the majority-rule problem. Creating a system in which the Electoral College better mirrors the popular vote only increases the probability that no presidential candidate received a majority of Electoral College votes.

For example, in the most recent election, if electoral votes were proportionate to the popular vote (with rounding), Gary Johnson presumably would have received two electoral votes in California, and Judith Stein would have received one of California’s electoral votes. A few more states in which third-party candidates receive at least one electoral vote, and, voilà, there is no Electoral College majority for Clinton.

In that case the most recent election would have been thrown into the House of Representatives, and with Republicans predominating in 30 of the 50 state delegations, it is almost certain that Clinton still would not win the election.

To be sure, there are more wide-ranging reforms that could be had, but those require constitutional change, which is difficult in any circumstance. So what is there to do besides amble on with an Electoral College that we can’t seem to live with, and that we can’t seem to live without.

Reader Discussion

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on November 14, 2016 at 10:11:38 am

As always, readers might benefit from a few facts.

First the electoral college is made up to represent Congress including Washington, D.C., or the 435 state representatives plus 3 electors for D.C. and 100 senators (2/state) for a total of 538 electors, which means 270 vs 268 for a two-vote majority of 50.19%.

Second, California's population of 38.3 million is 66 times that of Wyoming at 0.583 million. The assignment of two senators per state and staggered six year terms is part of the design: representative republican government intended to lessen the harm of temporal democracy.

Third, U.S. population grew so fast that maintaining the ratio 30,000 citizens per representative had to be constrained. A limit of 435 representatives is managed by equal proportions after each state is assigned 1 representative. After each census, the other 385 seats are assigned one at a time according to state population but adjusting to the number of seats already assigned. Thus, California would be assigned seat 51, but the computations for seat 52 account for the fact that California already has two seats. Texas gets seat 52, but 53 also goes to California, because even with its 2-seat status its apportionment number exceeds all others. Through this process, California has 697,000 citizens per Representative vs 194,000 in Wyoming.

IMO, the 2016 presidential election showed the brilliance of the amendable rule of law that was drafted in 1787 in Philadelphia. Over the last fifty years, the progressive movement toward the religion of "minority rights regardless of minority behavior" had become divergent. This country's inexorable march toward civic justice had regressed: The fraction of the population that works toward fidelity to the-indisputable-facts-of-reality (The Facts) regardless of private hopes respecting heartfelt concerns and preferences, was losing.

The Trump team secretly found a way to tap into the nation's distribution of civic morality, using the Electoral College. They boldly executed the plan, counting on a civic people's good will. The people now have the hope for return to the path toward fidelity to The Facts, self, immediate family, extended family, the people, the earth, and the universe, respectively and collectively. We must be cautious not to return to competition for dominant opinion, but to collaborate on The Facts for civic morality, leaving religious morality for addressing private concerns.

The march toward civic morality began on September 17, 1787, 229 years ago. Completion cannot be expected in 4-8 years. If Trump's leadership gets us back on the path, the people may celebrate.

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Phil Beaver
on November 15, 2016 at 13:23:41 pm

Phil, Ole Buddy!

I have to give you credit for this:

"The Trump team secretly found a way to tap into the nation’s distribution of civic morality, using the Electoral College."

The Electoral College bit is arguable; however, at root, it may very well be that the "civic morality" of the American people having been trampled upon by the Progressive zealots, has once again been reaffirmed by the people over the objections of their moral and intellectual "betters."

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on November 15, 2016 at 13:54:45 pm

The National Popular Vote bill is 61% of the way to guaranteeing the majority of Electoral College votes and the presidency in 2020 to the candidate who receives the most popular votes in the country, by changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

All voters would be valued equally in presidential elections, no matter where they live.

Every vote, everywhere, for every candidate, would be politically relevant and equal in every presidential election.
No more distorting and divisive red and blue state maps of predictable outcomes.
No more handful of 'battleground' states (where the two major political parties happen to have similar levels of support among voters) where voters and policies are more important than those of the voters in 38+ predictable states that have just been 'spectators' and ignored after the conventions.

The bill would take effect when enacted by states with a majority of the electoral votes—270 of 538.
All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes in all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.

The bill was approved this year by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
Since 2006, the bill has passed 34 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Maine (4), Michigan (16), Nevada (6), New Mexico (5), North Carolina (15), and Oklahoma (7), and both houses in Colorado (9).
The bill has been enacted by 11 small, medium, and large jurisdictions with 165 electoral votes – 61% of the way to guaranteeing the presidency to the candidate with the most popular votes in the country


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on November 15, 2016 at 17:07:52 pm

Too many people neglect the preamble to the constitution for the USA. My paraphrase follows:

People in their states who are wiling to trust and commit to the goals stated herein hereby establish and authorize a nation.

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Phil Beaver
on November 15, 2016 at 18:32:56 pm

And thus we shall see the end of the States as States.

What should one expect from a generation of people who have not the slightest inkling of the intended structure of this Republic and WHY that structure is the best assurance of the peoples liberty.

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on November 15, 2016 at 19:32:05 pm

That means a lot to me, gabe. I just hope Trump agrees with our perceptions. Even if so, I cannot hold him to a perfect performance.

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Phil Beaver
on November 16, 2016 at 10:14:02 am

The EC is archaic nonsense, and actually increases the risk of voter fraud. Long gone are the days when people lived in the same state their whole lives and voted the way their state voted. The EC is getting a lot of props right now from right wingers who erroneously believe that it helps rural voters. Translations: white supremacists. The EC actually doesn't help any one group although it does overweight the vote of people who live in small states. It does prevent the rise of third parties; it also means campaigning only takes place in swing states. The swing states change from one election to the next as the population shifts.

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on November 16, 2016 at 10:48:07 am

" rural voters. Translations: white supremacists."

Hillary would call them "deplorables."

As soon as "Anon" is disclosed, the Electoral College will know another loser.

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Phil Beaver
on November 18, 2016 at 09:24:01 am

And now an opinion from alexander Hamilton:

The Founders who set up the Electoral College anticipated the current complaints.
Alexander Hamilton’s rebuttal 228 years ago works as well today as it did then: “if the manner of it be not perfect, it is at least excellent.”

And how the NFL mirrors the Electoral College!


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on February 05, 2018 at 17:21:31 pm

> The swing states change from one election to the next as the population shifts.

Not so much. Florida, Michigan, Ohio, Pennsylvania, Arizona, Colorado (but heading blue), ... The usual suspects. Maybe from quarter century to quarter century.

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Paul Dineen

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.