Who Should Elect the
The Case Against the Electoral College
by CAROLYN JEFFERSON-JENKINS
National Civic Review, Summer 2001, volume 90, issue 2, page 173
We the people do not directly elect the president of the United States; the electoral college does. This election method may satisfy some people, but a desire for change is in the air. In Congress, in state legislatures, in newspapers, in magazines, and on television, the issue of electoral college reform is being widely discussed.
The crux of the problem--for which every thinking citizen should have an informed answer--is this: What method of electing the president best serves the people of the United States in the twenty-first century? The electoral college, a curious vestige of the eighteenth century, violates the principle of one person, one vote. The time has come to abolish it.
When the founders set up that system, democracy was practiced differently from today Women could not vote; African Americans could not vote; people without property could not vote. The men who wrote the Constitution were deeply mistrustful of popular opinion. Hence they set up the electoral college, theoretically composed of wise and prudent men who could be trusted with the job of picking a president. U.S. senators weren't chosen directly by the people, either; state legislatures did that.
But in the two centuries since, the franchise has greatly expanded. Blacks won the constitutional right to vote in 1870, women in 1920, and eighteen-year-olds in 1971. Senate races yielded to direct election early in the twentieth century. Today, with universal public education, newspapers, radio, television, and the Internet, citizens can see and hear candidates in a way unimaginable in 1787. The idea that the people aren't qualified to choose their president directly does not hold up. The course of American history has been inexorably toward greater fairness, uniformity, and inclusiveness in our democracy. Yet the system for electing the most important representative of the American people is stuck in a time warp.
Among the arguments advanced in favor of keeping the electoral college are that it protects the interests of the states, especially small states; that it's a key part of our federal system; and that minorities and others in large urban areas would lose influence without it. The argument for abolishing it, in favor of direct election of the president, is that the electoral college violates the fundamental principle of one person, one vote. I explore these arguments in detail in this article. But the important fact to stress at the outset is that simple fairness demands change. We need to trust the voters in a way that the founders, two centuries ago, did not.
The Electoral College Method
Before judgment can be made as to whether or not the electoral college method of electing the president should be changed, its merits and deficiencies must be identified and evaluated. For a thorough assessment, it is necessary to know something about the circumstances under which the system was established, what sort of change has occurred since its inception, and how the system operates now.
Article II, Section 1, of the Constitution states that the president shall be chosen by a group of electors appointed in each state, in a manner prescribed by the state legislatures, equal to the number of senators and representatives of each state in Congress. It assigns the counting of electoral votes to Congress and provides for the election of a president by the House of Representatives and of a vice president by the Senate in case either one does not receive the votes of a majority of the electoral college. Currently the magic number for a majority of electors is 270.
The idea of a strong, elected executive for a nation was completely revolutionary in 1787, when the Constitution was written. The United States of America was held together by loose Articles of Confederation that included no provision for any executive department. Crown-appointed colonial governors had been succeeded by weak executives chosen by strong state legislatures. Fear of monarchy was still very much alive.
Only indirectly do we the people choose the president of the United States every four years. The choosing process has developed into a mixture of procedures born of a complicated ancestry: the Constitution, state laws, political parties, rules and customs, political expediency and mere tradition.
The first three and most visible steps in the process are (1) campaigns by presidential candidates in state primaries and caucuses for delegates to the national party conventions, (2) selection of nominees for president by national conventions in the summer of a presidential election year, and (3) conduct of campaigns by nominees for the people's votes in the general election. But well before Election Day in November, the less visible parts of the process get under way
First, political parties in each state nominate, by convention, committee, primary, or in some instances petition, groups of presidential electors, equal to the number of senators and representatives each state has in Congress (the District of Columbia gets three). Presidential electors as a group have come to be known as the electoral college, even though it never meets as a national body.
Then, on Election Day--the first Tuesday after the first Monday in November of a presidential election year--the people in each state select, by a simple plurality the group of presidential electors pledged to one of the candidates. The people do not vote to choose a president but rather to choose electors who will choose one.
In the period between election of the electors and their casting of electoral votes, bargaining for electoral votes can take place because under the Constitution the electors are free agents. Within each state, the winning group of presidential electors meets in the state capital on the first Monday following the second Wednesday in December. Each elector normally casts one vote for the presidential nominee of his or her party. Almost always, electors vote automatically rather than independently--in some states by custom and in others by party pledge or state law.
In every state except two (Maine and Nebraska, which allot their electors proportionally by congressional district), all of a state's electoral votes are cast for the winner of the popular vote. Ballots cast for the losing candidate aren't counted at all in the electoral sweepstakes. This winner-take-all system serves to disenfranchise those who voted for the candidate who lost their state.
Results of the mid-December voting in each state are sent to the Congress. On January 6, in the presence of the Senate and the House, the electoral vote total for each presidential nominee is enumerated and officially announced. If one nominee receives the votes of a majority of the presidential electors--270 votes out of 538--a president has been elected. If no nominee receives the votes of a majority of the electors, the House of Representatives chooses the president from among the three top presidential vote getters in the electoral college.
To win, a nominee must get a majority of the votes cast. Each state delegation in the House has only one vote; but if the delegation is evenly divided, it loses the vote. Since a quorum for this election is "a member or member from two-thirds of the states," it is possible that thirty-four members of the House of Representatives could constitute the body to decide on a president.
First submitted in Congress in 1797, reform of the electoral college system is the most frequently proposed constitutional reform. More than a thousand bills--many of them constitutional amendments--have been introduced in Congress to change how we elect our presidents. Why has success for any kind of reform been so elusive?
It is difficult to amend the U.S. Constitution. In the case of reforming the electoral college system it has been impossible for members of the jurisdictional committees of Congress, let alone all of Congress, to agree on a method. The right combination of pressure, people, politics, and priorities that must exist to get a constitutional amendment through Congress has not yet occurred.
Major Policy Questions: Choices to Be Made
Electoral college reform is a complex, multifaceted subject, involving judgment concerning political principles as well as decisions about practical measures and the likely effect of any proposed revision. Using the electoral college to elect the president is a state-related intermediate step between the act of voting by the people and actual election of the president. A preliminary question for consideration is whether, in the matter of electing the president, one is willing to accept any alteration in the relationships among the people of the United States, the states, and the national government from how the Constitution designated these relationships in 1787.
If one is dissatisfied with the status quo but unwilling to consider any alteration in these relationships, then one must consider reform in terms of modification within the existing system. For those who desire substantial change, the principal choice is whether or not there should be a state-related step. In other words, should the electoral vote be retained, or should some other technique be designed to involve voters directly? If one chooses to retain the electoral vote, then one must make other choices about its allocation and counting and whether there should be electors to cast the electoral votes. The basic alternative to a process with a state-related step is direct popular vote. This alternative means that states, as units, would have no direct role in a presidential election. They would have only an indirect role, that of setting voting qualifications and administering the election itself.
This discussion of electoral college reform considers three major policy questions. First, how should federalism, states' rights, and the popular will relate to electing the president? Second, what should the roles of the federal government and the states be regarding voting qualifications and actual conduct of a presidential election? Third, what effect on political parties does direct popular election of the president have?
Federalism, States' Rights, and the Popular Will. Awareness of how indirectly the people of this country elect their president comes as a shock to most people. Less well known is the fact that a popular vote for the president, direct or indirect, is not embedded in the Constitution and therefore theoretically could disappear in any state, or all states, at any time. Just last December, the Florida legislature was prepared to nullify the popular vote, the outcome of which was still in contention, and name its own slate of electors--although it stopped short of taking that step. That the states now "appoint" their presidential electors by a statewide popular vote is political happenstance.
In the minds of some, there is a question of whether our form of government as a federal republic is safeguarded by having the electoral college. According to this view, the fact that this country is a federation of states, and that the Constitution assigns certain powers to the federal government while others remain with the states, is of more importance than direct election of the president based on the principle of one person, one vote. Others believe that a decisive role for the states was appropriate for a fledgling federal government in 1787, but perhaps a different balance is needed in the twenty-first century to preserve the freedoms outlined two hundred years earlier.
Another question pertaining to federalism is whether there is still a basic conflict in this country between the interests of large and small states. Some people believe that although there were substantial differences when the Constitution was written, in this century the interests of the people of a small state as far as electing a president are concerned parallel those of the people of a more populous state. Others believe that a basic conflict still exists--and they use that conviction in arguing for keeping a state-related step in electing a president.
The One-Person, One-Vote Principle. The one-person, one-vote concept of political equality set out in the U.S. Supreme Court case Gray v. Sanders is often cited by those who believe that an intermediate state-related step--with or without a winner-take-all method of allocating electoral votes--creates inequality among voters in a presidential election.
One person, one vote is the guiding principle of our representative democracy Through decades of struggle, this principle has now been established for elective offices across the land. The Constitution originally provided for the Senate to be elected by state legislatures. The Seventeenth Amendment, ratified in 1913, codified direct election by the people of the states. Reynolds v. Sims (1964) required that state legislatures follow the principle of one person, one vote. Other cases required application of this principle to other elected offices, including the House of Representatives.
The Winner-Take-All System. The winner-take-all system, in which all of a state's electoral votes go to the winner of the popular vote, disenfranchises those who voted for other candidates in that state. Their votes simply don't count. This fact lessens voter turnout and affects how campaigns are run. If one or the other major party is traditionally victorious in a particular state, there is arguably less motivation for a citizen in that state to vote, no matter which candidate he or she might support. If that party customarily wins, why bother to vote? If it customarily loses, again, why vote? Supporters of third-party candidates face even more daunting prospects. The campaign focus on swing states with a large number of electoral votes may also exert a depressive effect on voter turnout as many other states receive only minimal attention at best from the major-party candidates.
Lose the Popular Vote, Win the Presidency. Finally, the fact that votes for the losing candidates in each state don't count, can--and as recently as Election 2000 has--resulted in the victory of a president who lost the nationwide popular vote.
This can happen only if there is a state-related step in the election process. Therefore, the only reform proposal that prevents this outcome is direct election of the president. Whether the possibility of a nonplurality president should be a great concern is frequently debated. Some people feel the country does not unite behind such a president and the national stability is therefore endangered. Others are convinced that a slight margin of the popular vote one way or another won't harm the nation's political health.
The Federal Role in National Elections
The choices to be made in regard to the federal role in a national election concern setting voter qualifications for the presidential election and the conduct of the election, especially counting the votes and setting standards for a vote challenge. These considerations come to the fore when a direct popular election is under discussion.
Conduct of the Election and Counting of Votes. Since the federal government has no existing election machinery, it is likely that states would continue to conduct presidential elections if the country decided on a system of direct popular election. As far as counting the votes is concerned, U.S. Supreme Court decisions and civil rights legislation have established the federal right to intervene in the states' conduct of a federal election in matters relating to fraud. But recourse through the courts does not satisfy some advocates of the direct popular vote, who desire a uniform and nationally policed system for a presidential election. Opponents of such a system, such as the American Jewish Congress, contend that oversight of the voting process by the federal government is inconsistent with federalism. Others believe that a constitutional amendment setting up a uniform and nationally policed system for presidential elections would be a natural next step in developing the principle of one person, one vote. St ill others don't agree that the federal government has to assume a comprehensive role in conducting a presidential election.
Opponents of the direct popular vote for president stress the possibility of endless delays caused by multiple recounts. Advocates of the popular vote, on the other hand, declare that there can be equal uncertainty under the current system if recounts are needed in large, pivotal states, such as Florida in 2000. Some people believe the federal government should set standards for acceptable reasons for contesting a vote and for resolving challenges, including a specific time limit for resolution.
Voter Qualifications. The principal controversy regarding voter qualification raised by the prospect of direct popular election of the president concerns who should set the standards, the federal government or the states.
In Article I, Section 4 of the Constitution, responsibility for prescribing the time, place, and manner of holding an election for senators and representatives is given to the legislature of each state, "but the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators."
Since the Constitution also gives legislatures the power to decide how presidential electors are chosen, to date they have set the qualifications for voting in a presidential election. A number of resolutions have been introduced in Congress, however, to amend the Constitution by setting federal qualifications of various kinds, such as age and residency.
Effects on Political Parties of Direct Popular Election of the President
Partly because political parties were not yet in existence when the Constitution was written, their development has had a profound effect on the presidential election process. Methods of nominating presidential candidates and campaigning for election owe their present form to the ways in which political parties have evolved. Conversely, the electoral college system has had a profound effect on the two-party system. Any change in the method of election would leave a deep mark on our major political parties, on splinter parties and their possible proliferation, on how candidates are nominated, and on how they campaign. Most political observers want to see the two-party system preserved no matter what reforms are adopted. Proponents of the direct popular vote say this system would not encourage proliferation of splinter parties.
Direct Election Is the Most Representative System
In the summer of 1968, the League of Women Voters began a study of the electoral college to determine whether changes needed to be made in the method of electing the president. The results of this study are the foundation for our position that direct popular election of the president is the best method for a system of representative government that is responsive to the will of the people. Leagues in more than one thousand communities across the country participated in the study and came to the same conclusion.
Since 1970, the league has supported amending the Constitution to abolish the electoral college and establish direct popular vote for the president and vice president of the United States. Political developments since the 1970s have only underscored the need to eliminate the electoral college system. The downward trend in voter participation, coupled with increased cynicism and skepticism among the public as to the ability of elected leaders to provide meaningful representation, were all warning signs prior to the startling developments of Election 2000.
We no longer need to imagine what it would be like to have one candidate win the popular vote and another candidate win the presidency Such an outcome has happened in the past, in 1824, 1876, and 1888. In Election 2000, history repeated itself. Like Rutherford B. Hayes more than a century earlier, George W Bush lost the popular vote but won the White House. We all saw the public confusion--and the outrage among voters who felt that Al Gore, who won the popular tally by more than five hundred thousand votes, shouldn't have ended up as the loser.
Now let's go one step further. Consider a close race for president in which no candidate earns the necessary electoral college votes to win. This has happened twice before in our nation's history, in the elections of 1800 and 1824, when the House of Representatives chose Thomas Jefferson and John Quincy Adams, respectively The league believes both of these men were fine presidents, but we are deeply troubled by the prospect that some future winner of the popular vote could lose the election in a House dominated by one or another political party
In the twentieth century, we only narrowly avoided a series of constitutional crises in which the electoral college system--or the House of Representatives--could have overruled the popular vote:
Three Reasons the Current System Is Unfair
In testimony before Congress in 1997, the League of Women Voters pointed out that apart from the public outcry that would be caused by circumvention of the popular will, there are a number of other serious flaws in the electoral college system. The electoral college system is fundamentally unfair to voters. In a nation where voting rights are grounded in the one-person, one-vote principle, the electoral college is a hopeless anachronism.
First, a citizen's individual vote has more weight if he or she lives in a state with a small population than if the citizen lives in a state with a large population. Moreover, the electoral vote does not reflect the volume of voter participation within a state. If only a few voters go to the polls, all the electoral votes of the state are still cast. Finally, the electoral college system is flawed because the Constitution does not bind presidential electors to vote for the candidates to whom they have been pledged. For example, in 1972, 1976, 1988, and 2000, individual electors who were pledged to one of the top two vote-getters cast blank ballots or voted for also-rans. "Faithless electors" in a close race could cause a crisis of confidence in our electoral system.
For all these reasons, the league believes that the presidential election method should incorporate the one-person, one-vote principle. The president should be directly elected by the people he or she will represent, just as other federally elected officials are in this country. Direct election is the most representative system. It is the only system that guarantees the president will have received the most popular votes. It also encourages voter participation by giving voters a direct and equal role in electing the president. Of course, a direct popular vote does not preclude the possibility of a close three-way race in which no candidate receives a majority of the votes. The league believes that if no candidate receives more than 40 percent of the popular vote, then a national runoff election should be held.
Any substantial change in the method of electing the president and vice president must be accomplished through amending the U.S. Constitution, which requires a two-thirds vote of both the U.S. Senate and the U.S. House of Representatives followed by ratification by the legislatures of three-fourths of the states. But what if amending the Constitution proves politically impossible? Reforming the electoral college can be done without changing the Constitution. Until there is a constitutional amendment to abolish the electoral college, the league supports prompt establishment of clear rules and procedures for the House and Senate to handle their responsibilities in electing the president and vice president if no one receives a majority in the electoral college.
Other proposals short of a constitutional amendment could make it more likely that the electoral vote reflects the popular vote. States could act, on their own, to make a variety of changes. Some reformers warn, however, that state-by-state actions might give us a crazy quilt of election laws that make things even more complicated. They argue that either all the states should do the same thing, or things are better left as they are.
States could, if they wanted, make these changes:
Carolyn Jefferson-Jenkins is the president of the League of Women Voters of the United States.