How Does The Electoral College Work, And Is It Fair?
November 6, 20165:00
AM ET
Here's a little information that Americans have usually been
able to ignore.
It's about the Electoral College, a
uniquely American institution that's been with us from the beginning and that's
occasionally given us fits.
Typically, the Electoral College meets and does its thing a
month or so after the election, and few people even notice or care. Once in a
while, though, people do notice and do care — a lot.
Will 2016 be one of those years?
It's not something reasonable people would hope for, but it
cannot be ruled out.
First, the basics.
How It Works
Despite popular belief, the U.S. Constitution does not
provide for the popular election of the American president. It provides for
popular election of presidential electors. Each
candidate who qualifies for a given state's ballot must designate certain
individuals who will serve as his or her electors if that candidate wins the
popular vote in that state.
When each state certifies a winner
of its overall popular vote, that winner is entitled to send all his or
her electors to that state's Capitol, where they will officially record their
votes for their candidate. All the electors in all the states do it on the same
day, the first Monday after the second Wednesday of December. This year it is Dec.
19, which is the latest it can be, just as this year's Election Day is the
latest it can be.
In these proceedings in the
states, the winner of the statewide popular vote generally takes all the
Electoral College votes, a rule stretching back to 1824.
Two states, Maine and Nebraska, have instituted a different
system, giving two electoral votes to the statewide winner and one to the
winner of each of the state's congressional districts. This is allowed as the
Constitution enables individual states to determine the manner of their
elections. Other states have recently considered doing this as well.
Maine has two districts, so its vote can be split 3-1 (as it
appears likely to be this year). Nebraska has three districts, so it could
split 4-1 or 3-2. Nebraska had a 4-1 split in 2008, when its Omaha-based
district voted for Barack Obama while the other districts went easily for John
McCain.
Some states have also considered a rather more exotic idea:
casting the state's electoral votes for whoever wins the national popular vote.
This would serve to undercut the Electoral College's "indirect
democracy" and elevate the idea of a national choice,
regardless of state lines.
For the present, however, here is how the Electoral College
votes are apportioned to the states: Each state is assigned a number equal to
its Senate seats (always two) plus its seats in the House of Representatives.
What Unusual Things Could Happen
On Election Day?
That means the seven states with only enough population to
qualify for one House seat will get three votes each in the Electoral College.
California, with 53 seats in the House, gets 55 electoral votes, and Texas' 36
seats mean it gets 38 electoral votes.
And that's why, after the U.S. expanded to include 50
states, the Electoral College had 535 seats, the same as the total of members
of Congress (Senate and House). It now has 538, because in 1961 the 23rd
Amendment to the Constitution added three for the District of Columbia, which
had previously been without a voice in choosing the president (and which is
still without a vote in either the Senate or the House).
Is It Fair?
If any of this strikes you as unfair, you can join the
chorus of critics who have abhorred the Electoral College for generations.
Fault was found from the start with its essentially anti-democratic concept
that the people could not or should not be trusted to vote directly for a
national leader.
Rational as the "indirect method" may have been at
one time, it has come to seem anachronistic in the extreme. Were anyone to
propose that we start electing governors by a similar system they would be
ridiculed, or ignored.
The most egregious fault in the system is the prospect of a
nationwide popular vote winner actually losing in the Electoral College. It has
happened four times, most recently in 2000 when Al Gore got 48.4 percent of the
popular vote to 47.9 percent for George W. Bush (a margin of about 500,000
votes). After a struggle over the count in one state (Florida) that went all
the way to the Supreme Court, Bush was declared the winner with 271 votes in
the Electoral College — one more than the minimum for a majority.
It must also be said that the system of 50 separate
elections encourages candidates to concentrate their campaign time and
resources on a handful of so-called battleground states. These are generally
medium to large states where neither party has an overwhelming advantage. That
means some mega-states (California, Texas, New York, Illinois) are largely
neglected, while a few others (Florida, Pennsylvania, Ohio and North Carolina)
see more of the candidates and their surrogates than the rest of the country
combined. Small states, those with electoral votes in single digits, are often
left off the campaign itinerary altogether. This, despite the fact that each
citizen's vote is supposed to be worth as much as any other's.
What Happens In A Tie?
There is also the problem of
failure. The system can produce a tie (269-269). This has not happened, but a
casual glance at this year's electoral map and polling indicates such an
outcome is a distinct possibility.
What would happen then? It would mean no candidate had a
majority, a prospect that could also happen if a third candidate won at least
one state, depriving either of the major party candidates of a majority. This
came relatively close to happening in 1968.
An Electoral College that failed to produce a majority
winner would trigger a constitutional provision by which the president would be
chosen by the House of Representatives. That vote would be taken when the new
Congress convenes in January, and it would be a vote of the 50 state
delegations with each state having one vote. That's right, the
Wyoming delegation (one member) would have the same say as the 38-member Texas
contingent or the 53 members from California.
This, too, strikes many as unfair, not to mention flagrantly
undemocratic.
Suffice it to say that the Constitution, as written in 1787
and amended several times since, respects the rights of states as entities unto
themselves. Perhaps the framers did not envision population disparities between
the states reaching to 100 to 1 and beyond.
But they certainly understood at the time that Virginia and
Pennsylvania were far more populous than Delaware and Rhode Island. And they
clearly respected the rights of all the former Colonies to maintain their
identities. Hence the "Great Compromise" by which all states got two
seats in the Senate and the House was apportioned according to population. That
deal, fashioned by Roger Sherman and Oliver Ellsworth, two delegates from
Connecticut, was credited with getting the Constitution done and ratified.
The Electors Themselves
There is one other loose end that often raises eyebrows when
the Electoral College is discussed. It is the phenomenon of the "faithless
elector," the person who pledges to vote for a certain candidate but shows
up at the state Capitol and votes for someone else — a different candidate or a
person who was not even on the ballot.
Such surprises do not happen often. The last was in 1988,
when an elector pledged to Democrat Michael Dukakis voted instead for his
running mate, Lloyd Bentsen. It was a rather futile gesture that did not matter
to the outcome, except to demand an asterisk and an explanation.
But in a very close count, such as the hair's-breadth
showdown in 2000, a faithless elector or two might be enough to change the
outcome — or at least to throw the contest into the House.
As it was, the official tally that year was only 537 because
one elector did not vote at all. It did not change the outcome, but it showed
how subject the system is to breakdown.
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