Can’t We Just Get Rid of the Electoral College?

First of all, why are we asking this question? Why would anyone want to abolish the Electoral College? After all, it has been a key part of the way we elect our president since the founding of the country. (If you’d like a quick reminder of how the Electoral College operates, take a look at the website of the National Archives. More detailed background is available at History, Art & Archives, a website of the House of Representatives.)

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Counting the Electoral College votes in 1880

The reason we raise the question is that 2020 is a presidential election year, and, according to recent opinion polls, most Americans would like to choose the president by popular vote—the way we elect other officials—rather than go through the Electoral College. In fact, every poll taken since 1944 has indicated that a majority of those asked would prefer to get rid of the Electoral College.

On top of that, more amendments that have been proposed to the Constitution address the Electoral College than any other topic. Sometimes, they’ve received significant political support. Most dramatically, in 1969, the House of Representatives, with the support of President Richard Nixon, passed an amendment by a bipartisan vote to eliminate it. The vote, with 339 in favor and only 70 opposed, was far more than the two-thirds necessary to get a proposed amendment through the House. It died in the Senate the next year, however, because both Democratic and Republican opponents filibustered the proposed amendment. Although fifty-four senators—a majority—voted to stop the filibuster, this was not enough, given Senate rules.

As we explain in Chapter 12 of Fault Lines in the Constitution, there are many reasons that the Electoral College is so unpopular.

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Above all, the number of votes that the candidate for our highest office wins is unrelated to who actually becomes president. In 2016, Hillary Rodham Clinton received almost three million more votes than did Donald Trump. But her tally didn’t matter because Trump won more than 270 electoral votes, which is the necessary minimum. The same thing happened in the 2000 election as well as in 1888, 1876, and 1824.

Furthermore, with the exception of Maine and Nebraska, states’ votes are allocated on a winner-take-all basis. This means that all of a state’s electoral votes go to the candidate who gets the most popular votes, even if the victory is very slim. (Full disclosure: as we wrote in a previous blog post, Will Suing Governors Change the Electoral College?, Sanford Levinson is a named plaintiff in a Texas case that argues that winner-take-all is unconstitutional. So far, no judge has agreed.)

Other ways that this institution causes mischief include the following:

  • Since every state gets two electors (one for each of their two senators), small states carry more weight than their population warrants. Put them all together, and they can skew an election. For example, in 2016, 39 million people lived in California, which had fifty-five electors. The twenty-one smallest states plus Washington, DC, had a combined population of only 37 million people but they had a total of ninety-five electors. Fewer voters but more clout.
  • Battleground states, whose outcome is uncertain, get more attention from candidates during presidential campaigns than states whose electoral vote is predictable.ConRidElectoralCollege2
  • Voter turnout can be lower in non-battleground states because voters realize that their views are irrelevant.

Since the Electoral College causes so many problems and since most people don’t like it, why is it still around? The reason is that our Constitution is extremely hard to amend. Here’s the process, as laid out in Article V:

  • Two-thirds of the members of both the House and the Senate must approve a proposed amendment. OR,
  • Two-thirds of both houses of the states (that is, the forty-nine states with bicameral legislatures and Nebraska, which has a unicameral) must call for a constitutional convention. THEN,
  • Three-quarters of the states—either by their legislatures or, if Congress allows it, in ratifying conventions—must ratify the amendment.

The first ten amendments were ratified in 1791, just two years after the Constitution was adopted. Since then, only seventeen amendments have been added—and none since 1992. Currently, the Equal Rights Amendment, approved by Congress in 1972, is under consideration; its future is uncertain. In short, this institution is firmly baked into the Constitution.

In Fault Lines in the Constitution, we discuss ways to defang, rather than abolish, the Electoral College. These include eliminating winner-take-all and adopting the National Popular Vote plan. These approaches, too, have limitations.

While a majority of Americans want to eliminate the Electoral College, this view is not unanimous. As of March 2019, 72 percent of Democrats wanted to take this step while only 30 percent of Republicans agreed. A commentator on our previous post about this issue wrote, “The electoral college works because it does a decent (not perfect) job of balancing the power between small population states and large ones.” A basic reason for why we can’t get rid of the Electoral College relates to the fundamental question the Framers dealt with in 1787: are we a government of the people or are we a collection of state governments?

 

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