by Diane Rufino, February 1, 2023
The Electoral College will dominate the airwaves and the headlines on Election Day Tuesday. But what exactly is the Electoral College?
The Electoral College is made up of 538 electors who cast votes to decide the President and Vice President of the United States. The number 538 equals the number of House representatives (435) plus the number of senators (100) plus an additional 3 electors for the District of Columbia. When Americans cast their ballots on Election Day, they are actually voting for a slate of electors appointed by their state’s political parties who are pledged to support that party’s candidate. Each state is different, but for most, the candidate who receives a majority of electoral votes carries that particular state and the candidate who receives a majority of electoral votes at least 270) nationwide wins the presidency.
It was the 23rd amendment, ratified and added to the Constitution in 1961, that gave the District of Columbia its 3 electors to bring the number from 535 to 538.
What is an elector? An elector is a person who is certified to represent their state’s vote in the Electoral College. cast their votes in the Electoral College. Each political party either nominates slates of potential electors at their state party conventions or they choose the electors by a vote of the party’s central committee. In Nebraska and Maine, electoral votes are assigned by proportional representation, meaning that the top vote-getter in those states wins two electoral votes (for the two Senators) while the remaining electoral votes are allocated congressional district by congressional district. These rules make it possible for both candidates to receive electoral votes from Nebraska and Maine, unlike the winner-take-all system in the other 48 states.
Each state’s electors meet on the Monday following the second Wednesday of December. They cast their votes then, and those votes are sent to the President of the Senate who reads them before both houses of Congress on January 6.
Many often ask: Why the Electoral College? It was a system born out of debate in 1787. At the time of the Philadelphia convention, no other country in the world directly elected its chief executive, so the delegates were wading into uncharted territory. Further complicating the task was a deep-rooted distrust of executive power. After all, the fledgling nation had just fought its way out from under a tyrannical king and overreaching colonial governors. They didn’t want another despot on their hands.
One group of delegates felt strongly that Congress shouldn’t have anything to do with picking the president. Too much opportunity for chummy corruption between the executive and legislative branches. Another group was dead set against letting the people elect the president by a straight popular vote. First, they thought 18th-century voters lacked the resources to be fully informed about the candidates, especially in rural outposts. Second, they feared a headstrong “democratic mob” steering the country astray (mobocracy). And third, a populist president appealing directly to the people could command dangerous amounts of power.
Out of those drawn-out debates came a compromise based on the idea of electoral intermediaries. These intermediaries wouldn’t be picked by Congress or elected by the people. Instead, the states would each appoint independent “electors” who would cast the actual ballots for the presidency. With this system, the rights of smaller states would be ensured.
How We Got the Electoral College –
The Electoral College is outlined in Article II, Section 1, of the U.S. Constitution. It is the formal body that elects the President and Vice President of the United States.
Back in 1787, when the delegates to the Constitutional Convention were trying to figure out how the President should be chosen, some wanted the Congress to choose, and others wanted a popular election. After a quite a bit of debate with no agreement, they referred the issue to the Committee on Unfinished Parts, which, as the name suggests, took up issues that couldn’t be easily resolved. After four days, the committee proposed a complicated method of selecting the President – The Electoral College.
The committee’s proposal gave each state as many electors as it had Representatives and Senators in Congress. When the results from all states were compiled, the top electoral vote-getter would become President; the second would become Vice President. Electors, however, could not vote for two people from their state, and if no candidate received a majority or there was a tie, the Senate would choose the President from the top five electoral vote recipients. The convention was receptive to the proposal, except it gave the House of Representatives instead of the Senate the responsibility for selecting a President if a candidate didn’t get a majority. They also added a provision prohibiting Members of Congress and officials “holding an Office of Trust or Profit” from serving as electors.
Because the electors were assembled for the single purpose of choosing the President and then dispersed, the framers thought the system was a good compromise to ensure the independence of the Executive—that is, the President wouldn’t be beholden to a specific standing body to ensure reelection. And since the electors never met as a national body but instead in their respective states, there was less likelihood of corruption or cabal.
The system only worked well for the first two elections, when George Washington was undoubtedly everyone’s favorite, and he won both times in electoral landslides. With the election of 1796, problems with the Electoral College system became more apparent. In the election, John Adams, a Federalist, received the highest number of electoral votes, and the second highest went to his rival, Thomas Jefferson, a Democratic-Republican. The framers of the Constitution had not considered the possibility of the election of a President and Vice President from opposing parties.
With the 1800 election, the parties attempted to remedy the situation by having the President and Vice President elected on a party ticket. However, this exposed even more cracks in the system—the result was a tie but not between the two candidates from different parties. Two candidates from the same party received the same number of votes: Thomas Jefferson and Aaron Burr—both on the Democratic-Republican ticket. A tie vote meant the House of Representatives got to pick the winner, and that vote was extremely contentious. After 36 ballots, the House selected Jefferson and at that point, Congress decided a change in the system was needed.
When the Eighth Congress convened in October 1803, the House appointed a committee to consider an amendment: “That, in all future elections of President and Vice President, the persons shall be particularly designated, by declaring which is voted for as President, and which as Vice President.”
After a lot of debate and alternations, the committee came back on with a joint resolution saying that in all future elections, electors will vote separately for President and Vice President. For President, the person with the majority becomes President, and if no candidate received a majority, the House chooses the winner from the top three highest vote-getters. The person having the greatest number of votes as Vice President becomes Vice President, and in the case of a tie the Senate selects the winner.
The main issue of contention was if they should change the number of candidates sent to the House from the current five to two or three. Three ultimately won out, and on October 28, 1803, the House passed the joint resolution by a vote of 88 to 31. The proposed amendment then went to the Senate, which had already begun working on its own version of an amendment.
In the Senate, like the House, debate focused on the number of candidates that would go to the House in the case no candidate received a majority of electoral votes. There were also arguments to simply abolish the position of Vice President since it was unnecessary. Others still argued that no changes should be made because the proposed amendment would entrench the country into a two-party system.
Ultimately, on December 2, 1803, the Senate passed the joint resolution with updated language by a vote of 22 to 10 and sent the amendment back to the House. After several days of further debate, including questions over whether the two-thirds majority was to be calculated from total members in the body or of the members present, the House narrowly passed the Senate’s version on December 9 by a vote of 83 to 42 (of members present), just over the two-thirds requirement.
The final text outlined an updated Electoral College system. It proposed that each member of the Electoral College cast one electoral vote for President and one electoral vote for Vice President. This made it impossible for two candidates for President to each get a majority of electoral votes. Also, if no candidate gets a majority, the House selects the winner from the top three, not five, vote-getters.
The amendment also gave the Senate responsibility to select the Vice President if no candidate won a majority of the Vice-Presidential electoral vote, added provisions that the Vice President would act as President should the House of Representatives fail to select a President by inauguration day, and said that no individual constitutionally ineligible to be President could serve as Vice President.
States were quick to take up the amendment, and on June 15, 1804, with New Hampshire’s ratification, 13 of 17 states (three-fourths) had ratified it to become the 12th Amendment to the U.S. Constitution.
The 12th Amendment reads:
“The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;–the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.–]The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
The debate on amending the Electoral College did not end there. Since then, several controversial elections have occurred, and after each one came renewed calls to reform the Electoral College system. Hundreds of proposals modifying or abolishing the Electoral College have been introduced into Congress, but none have surpassed the two-thirds legislative hurdle to make its way to the states for ratification.
There have been, however, other constitutional amendments, in addition to the 12th, that have altered the Electoral College. The 20th Amendment moved the date that Congress convened from March 4 to January 3. With the move, the membership of the newly elected House, rather than the previous House, would elect the President if no candidate received an electoral majority.
The Problem
Many Americans are disgusted and skeptical of our elections. They have very little trust in their results. They immediately assume that fraud and manipulations have been involved. These disgruntled Americans don’t believe that progressives and liberals concentrated in big cities should be able to determine the overall state election results. Big city politics is not the same as rural politics. In New York, the 5 liberal boroughs of New York City dominate the state. In Pennsylvania, liberal Philadelphia and Pittsburg dominate the state. In Illinois, ultra-liberal Chicago dominates the state. The politics of liberal cities such as Los Angeles, San Francisco, Berkeley, and Oakland dominate the state of California. In Oregon, Portland dominates and in Washington, Seattle dominates. States like New Jersey, Massachusetts, Vermont, Maine, District of Columbia, Connecticut, Rhode Island, Delaware, and Maryland are simply straight Democrat. For anyone who reads the news, you will know the election problems and allegations made in Maricopa County, Arizona.
If the population of the big cities were spread out all across the state, it would seem more likely that the votes would be diluted and elections would appear to be more fair. But we all know that will never be possible. To be honest, rural folks are happy such progressives and liberals do not live among them in any large proportion. Their beliefs and their values are not the same. Country folk enjoy the conservative values that have sustained them for many generations.
And we certainly can’t diminish the votes of the big liberal cities. That would offend the constitutional principle of “One Person, One Vote.” Every single legal American has the right to vote and has the right to cast his or her ballot at election time. This principle, inherent in the 14th amendment’s Equal Protection Clause, refers to the rule that one person’s voting power ought to be roughly equivalent to another person’s within the same state. Although the simple idea that those elected to legislatures represent people (and nothing else) is not part of the written text of the Constitution, it has been engrained in our basic understanding that each person who casts a vote is equal to every other voter. It is essential to the core theory of a democracy, that the people rule, and do so with equal political authority. It’s a government of the people, representative of all those, equally, who vote.
Thus, the equality principle has come to be known as the “One Person, One Vote,” principle enshrined in the Equal Protection Clause. Of course, that equality principle can be defeated, in various ways. A redistricting map can be “gerrymandered” in a way that makes one’s political party an advantage or disadvantage at election time or makes one’s race or where one lives an advantage of disadvantage in the voting booth. It describes the intentional manipulation of district boundaries to discriminate against a group of voters on the basis of their political views or race. And it can be defeated if, in the ten-year interval between the taking of the census, there are large shifts in a state’s population, so that districts that once seemed equal in voting strength become “mal-apportioned.”
The term “gerrymandering” dates back to 1812 when Massachusetts Governor Elbridge Gerry signed into law a redistricting plan that included a district many thought looked like a salamander, leading opponents to nickname the district after him. While the term has become synonymous with redistricting abuses, it actually covers a wide variety of sins, not all of which are related.
For example, one form of gerrymandering involves drawing districts in order to protect incumbents. Likewise, sometimes districts are drawn to ensure a favored candidate can successfully run for office. These types of gerrymanders – which often occur through bipartisan collusion between political parties – can be harmful to democracy by pre-determining outcomes and depriving voters of a meaningful choice at the polls.
“Extreme gerrymandering” is the worse and most insidious form of gerrymandering. Extreme partisan gerrymanders not only deliver political results, but also result in maps that are deeply unrepresentative. John Adams famously wrote in 1788 that the House of Representatives – and by extension state legislatures – should be a “exact portrait” and “miniature” of the people as a whole. That certainly doesn’t happen when district boundaries are manipulated in this way.
Sadly, and unfortunately, the actual way to achieve a “One Person, One Vote” at the ballot has never been spelled out by the Supreme Court. But the states, who have the inherent sovereign authority to regulate elections and voting, have that same responsibility. And who knows, maybe in the coming years, after enough of an outcry against fraudulent elections, they will step it up and do that. It would be the smart and proper thing to do.
Sadly, the notion of “One Person, One Vote” can have a different meaning to different groups of people, and this is important when it comes to drawing district maps for elections. (1) First, it can mean that, when a new election district map is drawn up, each district gets its equal share of the state’s total population – that is, an equal share based on the actual number of ALL the people living in the state. (2) Second, it can mean that each district is to get an equal share of those who are REGISTERED to vote in the state. (3) And third, it can mean that each district is to get an equal share of those OF VOTING AGE, whether they are registered to vote, or not.
In each of these three situations, the districts represent equal collections of people; it’s just that they differ in who “the people” are in the metric. For the first, “the people” includes everyone – including people who can’t vote, like children, non-citizens, and convicted criminals. For the second, “the people” includes those who take the trouble to sign up to vote. And, for the third, “the people” includes everyone who could vote, if they chose to made the effort and be responsible patriotic citizens.
The most relevant Supreme Court case dealing with the rule in the context of voting laws and gerrymandering is Reynolds v. Sims, 377 U.S. 533 (1964). In that case, the Court held that states need to redistrict in order to have state legislative districts with roughly equal populations: “The Equal Protection Clause requires substantially equal legislative representation for all citizens in a State regardless of where they reside.” In Bush v. Gore (2000), the Supreme Court found that the Florida government violated the Equal Protection Clause (ie, “One Person, One Vote”) in ordering a partial recount of the 2000 ballot returns. In a most recent case, Evenwel v. Abbott, 578 U.S. __ (2016), the Supreme Court held that when drawing legislative districts, state legislatures may use the total population of areas within the state, rather than being restricted to using the voting-eligible populations (that is, the first scenario mentioned above). The Court reasoned that the “One Person, One Vote” principle of the Equal Protection Clause allows a state to design its legislative districts based on total population. Justice Ruth Bader Ginsburg delivered the unanimous decision and the opinion for the six-justice majority. The Court held that constitutional history, judicial precedent, and consistent state practice all demonstrate that apportioning legislative districts based on total population is permissible under the Equal Protection Clause. Based on the wording of the 14th Amendment and the legislative debates surrounding its adoption, the legislature at the time clearly intended for representation to be apportioned in the House based on total population, and it would be illogical to prohibit the states from doing the same within their own legislatures.
What then is the solution? Whatever the proposals are or will be, it is clear that they must respect the “One Person, One Vote” principle (every person must have an equal voice at the ballot box), they must be transparent (the very least owed to the American people), and they must easily have the ability to be audited for honesty and integrity.
Conservatives wish to keep the electoral college system while liberals want to change or eliminate it. As we have seen over our lifetimes, the Electoral College has some profound effects on the way campaigns are run and elections are won. The Electoral College artificially divides the country into “safe states” and “swing states.” Safe states are states where one of the two major parties has a large advantage and their candidate is likely to win that state’s electoral votes regardless of the candidate running for President. Swing states are more politically divided and could potentially go either way in a presidential election. Swing states end up being the primary battleground for candidates because whichever candidate performs better in swing states is likely to prevail in the election. That’s why candidates spend approximately 90% of their time campaigning in about a dozen swing states.
The following electoral maps show how the states played out over the past 20 years. The first map shows the breakdown of electoral votes in 2000 and the second, in 2020.
The Electoral College also makes it possible for a candidate to win the presidential election while losing the popular vote. This has happened five times in our nation’s history – 1824 (John Quincy Adams), 1876 (Rutherford B. Hayes), 1888 (Benjamin Harrison), 2000 (George Bush), and 2016 (Donald Trump) – and it is likely to happen again in the near future. Though Americans’ support for the Electoral College has changed over time, liberals have begun pushing to eliminate it and institute a national popular vote option.
The more serious problem with the Electoral College is that it compels states to allocate electoral votes on a winner-take-all basis, giving swing states their dominant role and enabling the culture of minority rule now metastasized in the Republican Party.
Winner-take-all is not in the Constitution and was not part of the founders’ intent.
What could the alternative to National Popular Vote be? Nebraska- or Maine-style allocation of electors by district might work, provided that there are prohibitions against fraud and election manipulations.
The supposed “best alternative” is a constitutional amendment – termed “The Top-2 Proportional Allocation Amendment” – proposed by Election Reformers offering something for both sides. It would maintain the Electoral College but amend it as follows: Republicans want to keep the small-state advantage and the state-based, rather than national, calculation of results. Democrats want results that reflect the popular vote. Both priorities can be achieved by the Top-Two Proportional Amendment, which makes states allocate their electoral votes proportionally to the top two vote-getters in the state and replaces human electors with electoral votes expressed in decimal form.
Here is how the Top-2 Proportional Allocation Amendment would work:
— It would eliminate the “winner-take-all” approach (which 46 of the 50 states use, which causes most of the problems in election outcomes, and which is not in the Constitution) and instead, would require states to allocate their electoral votes proportionally to the top two vote-getters in the state.
— The proportional calculation is carried out to the right of the decimal point – this means fractional electoral votes are available in every state for every candidate, creating a true national campaign.
— It would significantly reduce the impact of a “spoiler candidate.”
— Elections would remain state-based; that is, there would be no pooling of results across state lines. Additionally, states would be able to easily add in ranked choice voting or other innovations as they see fit.
— There would be no change in the formula for number of electors per state. (The disproportionate impact of voters in small states can be reduced separately by increasing the size of the House of Representatives).
— It would fix “black swan” problems (which are unpredictable, often catastrophic, events with severe consequences (such as a presidential election being “Thrown to the House” or a COVID pandemic).
Election Reformers offer four reasons why this is the best idea:
(1) The president would nearly always be the popular vote winner.
(2) With shares of electoral votes available in every state, candidates will have incentive to campaign nationwide.
(3) The “spoiler” problem would largely be fixed. (The 1 percent in Michigan four years ago for Jill Stein probably swung 16 electoral votes; with top-two, her impact would have been .05 of an electoral vote.)
(4) State results would finally reflect our true voter preferences, replacing the image of warring red and blue with different shades of purple.
Diane’s Solution
Electors should be allocated according to the popular vote. For example, if 60% of the popular vote is Republican and 40% is Democrat, then the electors should be allocated the same way – 60% will cast their vote for the Republican candidate and 40% will cast their vote for the Democrat candidate. This seems to be the most equitable solution; it is fair and most closely aligns with the votes of the people.
It may sound borderline crazy to talk about something requiring broad-based national agreement but when will the skepticism over fair and honest election stop? It has to stop. The American people can no longer have confidence in election results. They immediately suspect collusion, manipulations, and fraud, which as we all know now, are prevalent. More importantly, the democracy-distorting impact of the Electoral College is increasing, and it is not just an every-four-year problem. Allowing this institution to continue in its current form is not an option. Our Founding Fathers could never imagined that American citizenry would become so divided and political elitists so blindingly ambitious and manipulative.
Take the current situation in Arizona. Kari Lake, a former FOX News TV anchor, ran as a GOP candidate in 2022 race for Arizona’s Governor. She has recently filed her second lawsuit against Secretary of State Katie Hobbs and Maricopa County officials, claiming that thousands of illegal votes cast had “far exceeded” the 17,117-vote margin of victory for Hobbs. Lake alleged the following (which were all confirmed by The Gateway Pundit):
— That approximately 30,000-50,000 people were denied a vote on November 8.
— That Maricopa County Recorder Stephen Richer, who oversaw early voting, founded and operated the Pro-Democracy Republicans PAC, a dark-money PAC aimed at eliminating candidates with a MAGA agenda.
— That Maricopa County Chairman Bill Gates, who oversaw the election on Election Day, openly rooted against Trump-Endorsed candidates, calling their win in the primaries a “catastrophe” and saying, “I think they are electable, which is frightening.”
— That Katie Hobbs threatened to sue any county that did not certify this election and hand her the Governorship.
Many Americans have not been silent in accusing political parties of manipulating the 2020 presidential election and then in the 2022 midterm elections. Demands for audits, forensic state audits have been made and lawsuits have been eagerly and angrily filed. The people are losing faith in the system of our elections, and we’re slowly moving to a situation where nobody feels like their vote counts.
We must remain diligent in pursuing honest elections and we must not give up. The most popular solution among the people is for a return to same-day voting and paper ballots. I personally would love to see Election Day recognized as a national holiday which would therefore end the necessity for early-voting, which, as we all know, presents the greatest opportunity for voter fraud, election fraud, and election manipulations.
Without the sacred right to vote, and without honest and transparent elections, there is no America.
References:
Annalisa Pesek, “Fighting for Fair Elections,” The New American, January 2023 edition. Referenced at: https://thenewamerican.com/magazine/tna3902/
Jessie Kratz, “Amending the Electoral College: The 12th Amendment,” Government Archives, October 27, 2020. Referenced at: https://prologue.blogs.archives.gov/2020/10/27/amending-the-electoral-college-the-12th-amendment/
Kevin Johnson, “Distorted U.S. Democracy Underscores Urgency of Electoral College Reform, The Fulcrum, November 12, 2020. Referenced at: https://thefulcrum.us/election-dissection/electoral-college-reform
Marc Shulman, “Changing the Electoral College,” History Central. Referenced at: https://historycentral.com/elections/Changing.html
“What Is The Electoral College? How It Works and Why It Matters,” Huffpost. Referenced at: https://www.huffpost.com/entry/what-is-the-electoral-college_n_2078970
“Why The Electoral College Needs Fixing,” Citizens Take Action. Referenced at: https://citizenstakeaction.org/how-to-fix-the-electoral-college/
Election Reformers Network – https://electionreformers.org/the-proportional-allocation-solution/
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