Office Hours: The Electoral College

Like many features of the American constitutional system, the Electoral College is grounded in a theory of representation of states rather than representation of voters or individuals. The framers held a mistrust of direct democracy, and they wanted to keep the presidential election separate from the elections that staffed the legislative branch. 

There were also implications regarding race and slavery. The North had a population advantage over the South, so direct election by popular vote was a threat to southern power. The Three-Fifths Clause of the Constitution, which said any person who was not free would be counted as three-fifths of a free individual for the purposes of determining congressional representation, also had the effect of inflating white southerners’ power in the Electoral College. Small population states likewise preferred the Electoral College to direct the popular vote. Thus, the Electoral College was a way to ratify the Constitution and bring the southern slaveholding states into the fold. In part, it was just a political compromise based on the politics of the late 18th century.

We have 538 electors to the Electoral College. Each state gets a number of votes equal to its number of congressional representatives plus its two senators. The only exception is Washington, D.C., which gets three Electoral College votes thanks to the 23rd Amendment of the Constitution.

In 49 out of 51 jurisdictions, the Electoral College awards 100% of its votes to the plurality winner of the state. Maine and Nebraska award two electoral votes to the state popular vote winner and give one electoral vote to the popular vote winner in each congressional district. Electors tend to be professional partisans, usually elected officials at the state level. In 35 states, the electors who are sent to vote in the Electoral College are bound to represent the will of the popular vote of their state. So occasionally an elector can go rogue and vote for whomever they want. In 2016, for the first time in more than 100 years, there were multiple faithless electors. Five of them were Clinton electors and voted for other candidates.

“ The Electoral College was a way to ratify the Constitution and bring the southern slaveholding states into the fold. In part, it was just a political compromise based on the politics of the late 18th century. ”

Electors show up to their state capitals in the second week of December. They cast their votes and then states send the results to Congress, which counts the votes at a joint session in the first week of January. That’s what happened on Jan. 6, 2021. The vice president’s role in that accounting process is purely ceremonial. As recently as 2000,  Al Gore presided over his own loss.

More states tilt Republican right now because the Republican Party is favored by more rural voters and the Democratic Party is favored by voters in more densely populated metropolitan areas. However, as recently as 2004, John Kerry lost the popular vote by about two points, and if 60,000 votes in Ohio flipped from Bush to Kerry, he would have carried Ohio and won the Electoral College while losing the popular vote.

The most recent occasion when the Electoral College was almost abolished or significantly reformed was following the election of 1968, which was a three-way race between Richard Nixon, Hubert Humphrey and George Wallace, who was a third-party Dixiecrat independent candidate. Nixon only beat Humphrey in the popular vote by less than 1%, but he won the Electoral College 301 to 191, with Wallace pulling 46 from southern states. The disparity between this very narrow popular vote victory and the landslide in the Electoral College instigated a movement to amend the Constitution. The House voted overwhelmingly in favor of this change. Richard Nixon signaled that he would support it, but it failed to overcome a filibuster in the Senate.

There are people who think that abolishing the Electoral College would be unfair to more sparsely populated rural voters, because if you had a national popular vote as the way of winning the election then candidates would disproportionately campaign in large cities and ignore rural interests.

Now there is something called the National Popular Vote Interstate Compact, which is a movement by 16 states—including Maryland—and D.C., which have passed legislation that says if enough states whose Electoral College voters total 270—a majority in the Electoral College—pass a law pledging to commit their electors to vote for the national popular vote winner, their state will do the same. So in theory, if all 50 states adopted that law, then whoever won the popular vote would win every Electoral College vote. But there are some doubts about whether that would pass constitutional muster.

The Electoral College probably isn’t going anywhere anytime soon. There’s no way to get around the politics right now.