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Electoral College
Electoral College

Electoral College

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The method by which the United States elects a president every four years. This mechanism was devised by the Founding Fathers as a compromise between large states (who felt they should have a greater say than the smaller states) and small states (who feared a straight proportional number would leave them too little influence). The College is outlined in Article II, Section 1 and in the Twelfth and Twenty-Third Amendments to the United States Constitution. It calls for each state to be designated a number of electors that is equal to the number of senators and representatives in each state. This varies from large states such as California, which has 55, to only 3 in smaller states like Wyoming and South Dakota. The District of Columbia is given the same number of electors as the least populated state.

These electors, currently 538, are the people who vote to choose who will be the next president. To win the presidency, a candidate must receive an absolute majority of votes, currently 270. If no candidate receives a majority, then the House of Representatives selects the president, with each state delegation getting one vote.

In the majority of states, the electors are directed how to vote based on which candidate wins the popular vote in the state. This is called a “winner-take-all” system. In Maine and Nebraska, however, the votes are divided by congressional district. Whomever wins the majority in the district gets an electoral vote. Whomever wins the whole state then receives two additional votes, representing the senatorial “at-large” districts.

At first, state legislatures dominated as the electoral method of choice. Between 1804 and 1820, both statewide and state legislature systems were commonly used, with a small but steady number of states using district-based methods. After 1824, states quickly began conforming to the norm of statewide selection of electors. (Data from pg. 18 of of Delaware’s 1966 lawsuit challenging the constitutionality of the “state unit-vote” system.)

Methods of Choosing Electors:

  • State Legislature: The legislature of each state chose the presidential electors of the state, giving the people at large no direct vote in presidential elections.
  • Districts: States were divided into districts, either using pre-existing congressional districts or creating new districts specifically for the presidential election. Voters elected one or multiple electors from their district.
  • Statewide: The current most common system–voters in a state vote for candidates, and all of that state’s electoral votes are cast by electors nominated by the candidate with the most statewide votes.
  • Hybrid: Some states used a combination of these methods, allocating some electors through the state legislature, some from districts, and/or some from a statewide general ticket. Nebraska and Maine currently use a hybrid of the district and statewide methods.
  • Other: Various alternate systems were experimented with, including electors from each county choosing the state’s electors and runoff elections.

Timeline:

  • 1789: George Washington is the overwhelmingly popular choice to become the first president; just three states allocate electors based on the winner of the statewide popular vote.
  • 1792: State legislatures emerge as the preferred method of selecting presidential electors. George Mason of Virginia defended this method at the Constitutional Convention by arguing that “It would be as unnatural to refer the choice of a proper character for a chief Magistrate to the people, as it would to refer a trial of colors to a blind man.”
  • 1800: Virginia, the state with the most electoral votes, switches to a statewide popular vote system. Winning candidate Thomas Jefferson said of the switch in his home state: “All agree that an election by districts would be best, if it could be general; but while 10 states choose either by their legislatures or by a general ticket, it is folly & worse than folly for the other 6 not to do it.” Indeed, Jefferson would have won the 1796 election if two of his strongholds had used winner-take-all. Not wanting to lose an advantage to Virginia, Massachusetts switches to a state legislature system in response, to ensure that all its electoral votes would go to John Adams.
  • 1804: The 12th amendment is ratified, requiring electors to cast a single vote for a presidential ticket rather than casting two votes for their two preferred candidates, with the top finisher becoming president and the runner-up becoming vice-president. The number of states using statewide and state legislature systems is equal for the first time.
  • 1812: The number of states using statewide models decreases and the number using state legislature systems increases, suggesting that the latter might ultimately win out. A substantial number of states continue to use a district-based model.
  • 1820: An equal number of states use statewide and state legislature methods for the second time. This is the last election in which state legislatures played a dominant role. By this point, political parties have become entrenched and the electors of the Electoral College can no longer realistically claim to be independent. After the election, James Madison proposes a constitutional amendment that would require states to use the district method, writing that “The district mode was mostly, if not exclusively in view when the Constitution was framed and adopted; & was exchanged for the general ticket & the legislative election, as the only expedient for baffling the policy of the particular States which had set the example.”
  • 1824: The tipping point election for presidential electoral systems, as twice as many states used the winner-take-all statewide method as used the state legislature method. The defeated Andrew Jackson joined James Madison’s pleas for a constitutional amendment requiring a uniform district election system, but to no avail. In every U.S. presidential election since, the statewide method has been predominant.
  • 1836: All but one state, South Carolina, uses the winner-take-all method based on the statewide popular vote to choose its electors. South Carolina continues to have its legislature choose electors until after the Civil War.
  • 1872: For the first time, every state holds a popular vote election for president, and all use the statewide winner-take-all rule. In 1876, Colorado is the last state to have its legislature choose its electors.
How the Electoral College Became Winner-Take-All

The election of 1824 is most famous for the “corrupt bargain,” a deal in the House of Representatives that gave John Quincy Adams the presidency despite his winning fewer popular and electoral votes than Andrew Jackson. But 1824 was also significant for another reason: it was the first election in which the majority of states used a statewide winner-take-all voting method for choosing their presidential electors.

It is a system that now seems like a fundamental part of the American democracy. Presidential candidates compete to win states, which is how they get votes in the Electoral College. The U.S. Constitution does not mandate that system, however. Instead, it is left up to the states to determine how they select their representatives in the Electoral College. For the first 13 presidential elections, spanning the first four decades of the history of the United States, states experimented with many different electoral systems.

The shift to statewide winner-take-all was not done for idealistic reasons. Rather, it was the product of partisan pragmatism, as state leaders wanted to maximize support for their preferred candidate. Once some states made this calculation, others had to follow, to avoid hurting their side. James Madison’s 1823 letter to George Hay, described in my earlier post, explains that few of the constitutional framers anticipated electors being chosen based on winner-take-all rules.

The graph below charts the use of each major method of choosing presidential electors during this formative period. An explanation of each system and a timeline of important developments in presidential elections follows.

At the Constitutional Convention in 1787, delegates put forth proposals for several different constitutional structures. The two primary plans, the Virginia Plan and the New Jersey Plan, placed a stark contrast between small states and large states. One part of the Virginia Plan called for Congress to elect the president. Seeking to keep a pure separation of powers, some delegates objected and electors chosen for the role was settled on.

Once the electoral college had been decided on, several delegates (Mason, Butler, Morris, Wilson, and Madison) openly recognized the institution’s ability to protect the electoral process from cabal, corruption, intrigue, and faction. The electoral college came into being in part because of James Wilson, who was an early promoter of the concept. Pierce Butler (Founding Father) also supported the system early in the convention, as he was looking for a way to protect the electoral process against corruption and foreign intrigue.

Federalist No. 68 goes into detail about the Electoral College.

Slavery

The issue of slavery was not a reason for the introduction of the Electoral College. After the results of the 2016 U.S. presidential election, the Race card was employed in an attempt to shame supporters of the college and the results of that election. The timeline of the convention proves that the Electoral College was not introduced to protect slavery. This conclusion is fallacious, but is held by many despite the facts. The college was a reaction to a proposal which was made as a part of the Virginia Plan, originally introduced on May 29, 1787. It was viewed as dangerous for the president to be elected by the Congress (the original mode of the Virginia Plan), so to keep the executive independent the college was devised. Three states – North Carolina, South Carolina and Georgia – voted against the idea of using electors to choose a president. These were the three most pro-slavery states.

As for AOC and others who claim the Electoral College is pro-slavery, it’s been fairly well established that the Electoral College helped end slavery rather than resulting from it. After Abraham Lincoln won with a paltry plurality of the popular vote and overwhelming majority of the electoral vote in 1860, the Southern states seceded in part because they worried the Electoral College was stacked against them.

Without the Electoral College, a nationwide popular vote determines the president and every voter in the election would be forced into a single group. Thus any vote stolen could impact the outcome, no matter where. However, the Electoral College can help protect an election from voter fraud to an extent due to its nature as a guiding tool for an indirect election. This means votes must be stolen in the right states in order to differently affect the outcome. If 20,000 votes for Donald Trump were stolen in California in 2016, there wouldn’t have been any difference since the margin by which Hillary won that state was roughly 4 million votes. But if 20,000 votes were stolen in Michigan, that could very well have changed the outcome, since Donald Trump won that state by only 13,080 votes.

The Electoral College balances power between larger and smaller states to prevent large populations within large states and cities from monopolizing elections, especially taken into account the substantial disparities in population, population density, resources, and needs. Considering that a vast majority of resources supplied to big cities come from rural and suburban areas throughout the U.S., it is also important to give fair representation to smaller states beyond state-by-state power balancing interests and also take into account of economical interests to allow the U.S. to best advance itself in terms of jobs and letting the market thrive.

So why did the framers choose such a complex system for electing the president of the United States?

The Electoral College is an essential institution that promotes:

  • Domestic tranquility; a national crisis would ensue if a close election required a recount, because in the absence of the Electoral College the recount would be done everywhere
  • Voter fraud limitations; if either a big city or a state is used as a tool to change the outcome of elections, any damage is limited to a single state and the impact is reduced nationally
  • Integration; if a few states like California or urban areas could dominate every single election, it would exclude voters in rural areas. This would have the effect of balkanizing our Nation geographically
  • Republicanism; democratic tyranny by the majority, which the Founders strongly opposed

The electoral procedure to select a President and Vice President is as follows:

  • Political parties and independent presidential candidates select their electors under rules established by state laws.
  • Political parties nominate presidential and vice presidential candidates, under rules established by each party.
  • On the Tuesday following the first Monday of November, people choose the electors of their state based on the Presidential preference announced by each candidate for elector. (Most states use a “short form ballot” where the name of the candidates for President and Vice President appear on the ballot instead of the names of the candidates for elector.)
  • On the Monday following the second Wednesday of December, electors of each state meet in their state capital to cast separate votes for the president and vice president. Many states have laws that require the electors to vote for the presidential and vice presidential candidates that they had promised to support, but in most cases the electors are highly loyal to their party and would be censured or expelled if they voted otherwise. (The term for an elector who does not vote as pledged is “faithless elector”; although there have been 150 such electors in history—including 16 in the 2016 election, five of whom voted against the losing candidate Hillary Clinton—no such protest vote has caused the would-be winner to lose.)
  • The ballots are than sealed and sent to the President of the Senate (the Vice President), who opens them on January 6.
  • Candidates who win the majority of ballots for president and vice president will then be declared the winners. If no one wins the majority of the ballots for president, then the House of Representatives makes the choice from among the top three contenders. In this situation, each state’s delegation has one vote and the majority of the states will have to elect the president. If there is no winner for vice president the senate will select between the top two contenders.
  • At noon, January 20, the new president and vice president will be sworn into office.

The 23rd Amendment gave the District of Columbia as many electoral votes as it would have were it a state (it has never had more than the minimum three electors). Although American territories can vote in primary elections, they cannot vote in the general election, and thus have no electors.

Nearly all the states vote on a winner-take-all basis, such that whoever wins a plurality of the votes in that state then receives all of the Electoral College votes for that state. The only two exceptions are Maine and Nebraska, which award two electoral votes to the statewide winner, while the winner of each congressional district gets the electoral vote for that district. Both states would therefore be able to split their share of votes between candidates; however, this has happened only one time: in 2008 Barack Obama won Nebraska’s second congressional district, therefore winning one of Nebraska’s five votes (John McCain won the other two districts and the statewide vote).

A proposed plan (preferred by many liberal-leaning states) which would effectively abolish the College would have states agreeing to allocate their electoral votes to the winner of the overall national popular vote (even when the state’s voters chose another candidate); the plan would not take effect until states comprising 270 electoral votes (a majority of the 538 needed) have agreed to it, and (as it is a proposed interstate compact) would still require Congressional approval.

In 1876, Samuel Tilden won the popular vote, but Rutherford B. Hayes won the elector vote. The election was marred by allegations of fraud and was settled only by an agreement to end Reconstruction (and essentially allow Democrats to suppress minority voting for nearly the next century).

In 1888, Grover Cleveland got a plurality of the popular vote (by a margin of 110,476) but Benjamin Harrison won the electoral college vote, and became president. In 1960, Richard Nixon got a plurality of the popular vote, unless you count votes for John F. Kennedy that actually went to electors that were pledged to vote for someone else.

In the 2000 election, Al Gore narrowly got a plurality of the popular vote, and George W. Bush narrowly won the electoral vote. After a careful (and still considered by liberals to be an incomplete) recount of the election results in Florida, George W. Bush was declared the 43rd President of the United States.

In the 2016 election, Hillary Clinton won the popular vote and Donald Trump won the electoral vote. Rather than trying to win according to the longstanding rules, Democrats, showing their disrespect for the Constitution, called for abolishing the Electoral College. Some Democrats even falsely claimed that the Electoral College was created to protect slavery, and liberals and establishmentarians of both parties claimed that it favored a certain political party over another. Republican Party members who opposed the Electoral College also did so because they believed it would force the GOP to adopt left-wing and globalist positions. Some more principled conservatives and conservative organizations, such as Prager University, defended the electoral college both before and after the election; however, some RINOs condemned it.

The NPV (National Popular Vote) anti-Electoral College supporters understand that their chances of actually amending the Constitution to abolish the Electoral College officially are practically nil. After all, they would need both houses of Congress, by two-thirds vote, to send an amendment to the states, and three-fourths of the states would have to ratify the proposal. Because they know that is unlikely to happen, the NPV movement argues that states can instead agree with other states to give their electoral votes to the winner of the national popular vote, regardless of who wins their state popular vote.

This is why Hans von Spakovsky, a senior legal fellow at The Heritage Foundation, called the NPV proposal an “end run” around the Constitution.

The compact has won in only 11 states — all Democratic “blue” states (the District of Columbia also favors the NPV, not surprisingly). The compact would not go into effect until enough states are in place to equal 270 votes — the minimum majority of the Electoral College vote. States that have passed the compact are California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, and Washington, plus the District of Columbia.

Clearly, Democrats from larger-population states are the base of the NPV support, and NPV leaders realize they need some Republican-leaning states to get past 270 electoral votes. Accordingly, one of the lobbyists that NPV uses to court Republican legislators is Ray Haynes, a former Republican member of the California Senate.

Haynes told the Daily Signal, “The Electoral College doesn’t protect small states. It’s not learned people discussing who should be president. That’s all horse manure.”3

The NPV compact is unconstitutional and bad public policy. It would undermine the protections of the Electoral College, elevating the importance of big urban centers like New York and Los Angeles while diminishing the influence of smaller states and rural areas. That was a major reason for establishing the Electoral College in the first place: to prevent elections from becoming contests where presidential candidates would simply campaign in big cities for votes.

Consequently, these 11 blue states have entered into what’s called the National Popular Vote Interstate Compact, under which they pledge to award their electoral votes to the popular vote winner. If enough states are in the compact to reach the needed 270 votes, they could end up deciding elections—and they’re only 98 electoral votes away from being able to do just that. This is an end run around amending the Constitution.

The NPV strikes directly at the Founders’ views of federalism and a representative republic that balances popular sovereignty with structural protections for state governments and minority interests. The Electoral College has provided orderly elections for more than 200 years, allowing a stable transfer of power of the leadership of the world’s greatest democracy. As former Federal Election Commission Chairman Bradley Smith says, “We tinker with our success at our peril.”5

Along with much of the foundation of the country, the Electoral College is under increasing attack from various opponents on the Left. Fortunately, a documentary titled Safeguard: An Electoral College Story was released in September 2020 by Save Our States (a project of the Oklahoma Council of Public Affairs), which explains the history of the system of electing our nation’s president, and offers a powerful defense of it.

The biggest problem we face is that people don’t know how the Electoral College works, and they’ve never thought through what the trade-offs are,” Trent England, executive director of Save Our States said. Perhaps the biggest misunderstanding about the Electoral College is based on the idea that the United States is a democracy. England noted, “The Constitution does not establish a democracy. The Constitution is about establishing self-government in a way that protects individual rights, which oftentimes is directly at odds with democracy if the majority of the people want in some particular moment to interfere with the rights of a minority.

Christian Adams, president of the Public Interest Legal Foundation, also defended the Electoral College. “Without the Electoral College, the presidency would be decided in Boston, New York, Chicago, Seattle, San Francisco and Los Angeles.4

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