As everyone knows by now, President-elect Donald Trump expects 306 electoral votes when the electors cast their votes. Since 270 is a majority of the electoral college, he will be the next president. And as everyone knows, there’s been a lot of heated talk about the electoral college in the aftermath of the election, particularly because Hillary Clinton won the popular vote by more than a million votes. Here is Harvard Law School professor Laurence Tribe recently:
Electors can't do their constitutional job as Hamilton envisioned it w/out still hidden info re DJT's ties to Russia & other huge conflicts
— Laurence Tribe (@tribelaw) November 17, 2016
My own view, for what it is worth, is that it’s a mistake to hope for some sort of electoral college miracle that results in something other than Mr. Trump’s election, that any change to the written rules and unwritten expectations about how the college works must be prospective only if they are to be legitimate, and that it’s a mistake to blame the electoral college system for the outcome of this election. I don’t think Donald Trump is right about much, but I think he is right to say that he would have conducted the campaign differently if the goal had been to win the popular vote. No doubt the same is true for Hillary Clinton. So it’s impossible to say what would have happened without the electoral college. I should also say more generally that in my view the problems revealed by the recent election are not really structural but cultural. I’ll consider doing a post on small-r republican virtues at some point to give some views on that.
With all this said, I think foreign readers particularly may appreciate a summary of the electoral college system, its rationale, its effects, and prospects for improvements.
How Do We Elect The President?
While there are a nearly infinite variety of state and local elected officials, at the federal level there are only three: Representatives, Senators, and the President and Vice President.[efn_note]I’m going to ignore the Vice President in this post.[/efn_note] Since the ratification of the Constitution, the members of the House of Representatives have always been elected directly by the people, ideally on a “one person, one vote” basis.[efn_note]But note that even the smallest states are entitled to one representative, and in light of Department of Commerce v. House of Representatives, 525 U.S. 326 (1999), the census figures used to apportion representatives must be based on the “actual enumeration” rather than on figures derived using statistical methods that are likely more accurate.[/efn_note] At first, senators were elected by the legislatures of each state, but since the ratification of the Seventeenth Amendment in 1913, the Senate, too, has been popularly elected, with each state sending two senators to the Senate.
The President is different. He or she is elected by electors “appointed” (to use the Constitution’s word) by each state. Here is the Constitutional provision on presidential electors:
Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
In every state (as far as I know), the legislature has provided for election of the presidential electors by the people. Whether the names of the electors appear on the ballot is another question. In Massachusetts, for example, when I vote for President I am actually voting for a slate of electors pledged to a particular candidate, but the electors’ names don’t appear on the ballot: the candidates’ names do.
Because we vote for slates of electors, the system operates on a “winner take all” basis.[efn_note]Except in Maine and Nebraska—let’s leave that aside.[/efn_note] So if I win 100% of the vote in Massachusetts, or 50.1% of the vote in Massachusetts, I will receive all 11 of the Commonwealth’s electoral votes, and if I win 0% of the vote or 49.9%, I will receive no electoral votes.
The electors who are chosen in each state meet on a specified day, following the election, and cast their votes for President. In many states, the law requires them to vote for the candidate to whom they are pledged, though it is unclear whether those laws are enforceable. All the votes are then sent to Congress, which counts them when it reconvenes in January. The candidate with a majority of the electoral votes wins.[efn_note]I leave aside the case when no candidate has a majority.[/efn_note]
This is the system we have inherited.
The Electoral College and the Popular Vote
Let’s do a little math to illustrate how a candidate who loses the popular vote can win the Presidency.
Imagine that the United States had only three states, one Blue state, one Red state, and one swing state. Suppose the Blue state had a population of 40 and the other two states each had a population of 30. And assume for the moment that electors are allocated purely on the basis of population. In this simplified example, it’s possible for the Blue candidate to win 68% of the vote and still lose the election.
|State||Population||Popular vote for the Blue candidate||Electoral vote for the Blue candidate|
Now let’s add the wrinkle we mentioned before: electors are allocated not strictly on the basis of population, but on the basis of the number of representatives and senators each state has in Congress. Each state has equal representation in the Senate. So now let’s imagine that the United States has six states: one large Blue state with a population of 57 (and 59 electoral votes) and five small Red states, each with a population of 10 (and 12 electoral votes). If the Blue candidate wins all the votes in the Blue state and the Red candidate wins all the votes in the Red states, the Red candidate wins the election with 46% of the popular vote.
|State||Population||Popular vote for the Red candidate||Electoral vote for the Red candidate|
|Red State #1||10||10||12|
|Red State #2||10||10||12|
|Red State #3||10||10||12|
|Red State #4||10||10||12|
|Red State #5||10||10||12|
Now, I’ve used figures that make it easy to illustrate these points, but the illustrations do reflect two real features of the system. First, it doesn’t do a candidate any good to run up a big margin in a big state, since you can win all the electoral votes in that state by winning 50.1% of the vote. Instead, you’re going to devote your efforts to those states where it’s possible but not certain that you’ll get over the 50% hurdle. Second, small states (and the District of Columbia) have a disproportionate influence because they have more electors than they would if electors were allocated purely on the basis of population.
Why Do We Elect The President This Way?
In Federalist 68, Publius (that is, Alexander Hamilton) explains that the electoral college system was designed to balance two goals: “that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided,” and
that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
So the original plan was to have the best of both worlds: democratic legitimacy (the electors are popularly elected, or at least elected by the people’s representatives), and the judgment of the political elite. However, as Justice Jackson noted in Ray v. Blair, 343 U.S. 214 (1952) (Jackson, J. dissenting):
No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices. Certainly under that plan no state law could control the elector in performance of his federal duty, any more than it could a United States Senator who also is chosen by, and represents, the State.
This arrangement miscarried. Electors, although often personally eminent, independent, and respectable, officially became voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire:
They always voted at their Party’s call / And never thought of thinking for themselves at all.
Hamilton thought his system would produce only the most outstanding results:
The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.
At least since the “judgment of the political elite” piece of the equation was taken away, it hasn’t always worked out this way.
Something else was at work, too. Here is a part of James Madison’s notes of the speech he gave to the Constitutional Convention on July 25, 1787, favoring “election by the people or rather by the qualified part of them, at large,” rather than election by chosen electors:
The second difficulty arose from the disproportion of qualified voters in the N. & S. States, and the disadvantages which this mode would throw on the latter. The answer to this objection was 1. that this disproportion would be continually decreasing under the influence of the Republican laws introduced in the S. States, and the more rapid increase of their population. 2. That local considerations must give way to the general interest. As an individual from the S. States he was willing to make the sacrifice.
What is this about? I think it is about slavery. Madison makes this clear in a speech a few days earlier:
The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections.
As Professor Amar writes (America’s Constitution: A Biography, p. 157), “No other Southerner answered Madison’s call for regional sacrifice.” In other words, one reason we have the system we have is that the Southern states sought, in 1789, to preserve their voting power. And this is reflected in the final text of the Constitution, which counted African American slaves for purposes of apportionment of representatives (and thus of presidential electors) even though slaves could not vote. (Infamously, the Constitution treated each slave as three-fifth of a person for purposes of counting!)
These are the historical reasons for the system we have.
How Does The Electoral College Distort Our Politics?
In a very simplified sense, we should expect that in a system where decisions are made by majority vote, the winning candidate would be the candidate who is preferred by the “median voter.” So if we suppose that voters vary from one another only along one axis (liberals on the left, centrists in the middle, conservatives on the right), and if there are 101 voters in total, the candidate who wins should be the candidate preferred by the voter who is more conservative than 50 of his or her fellow voters, and more liberal than 50 of his or her fellow voters. Oversimplified, trite, but useful as a way of thinking through some issues. I am just going to assert, without really being sure that I could justify the assertion, that our two-party system, which forces rational voters into a binary choice that we can describe as falling along a single axis (even if we say some positions are “liberal” or “conservative” because they are held by Democrats or Republicans, rather than vice versa) is one of the great political strengths of our politics, because it mostly produces centrists who are at least broadly acceptable to most citizens. (Some people disagree and think that centrism and moderation themselves are the problem, and that’s a respectable view, too, I guess).[efn_note]I am ignoring complications such as the possibility that voters are not arrayed more or less evenly along the ideological spectrum.[/efn_note]
But the electoral college has the potential to mess this up, particularly if what we read is true and Americans are, more and more, self-sorting into Democratic and Republican enclaves. If we look at the first example I gave above, with one large Blue state, and two smaller states, one Red and one swing state, we see that the result of the election does not reflect the will of the median voter. If we take it as given that the Blue state is voting Blue and the Red state is voting Red come what may, then the election reflects the will of the median voter in the swing state, which may be closer or farther from the will of the median voter in the country as a whole, and which in any case is determined with reference to only 30% of the voters in the country (using the figures from my example).
Can Anything Be Done?
To restate my view, I don’t think anything can or should be done instantly. President-elect Trump has won this election. The question really is about the future.
There are two possible paths forward toward change. The first, of course, is a constitutional amendment. Just this week, Senator Boxer introduced a joint resolution that would amend the Constitution to provide for a popular vote for President. It makes sense that the resolution was introduced by her and Senator Feinstein, the two senators from California, which is one of the states whose voters are most disadvantaged by the current system. The two senators get an “E” for effort, but it seems to me the proposal is dead on arrival, since it would require the vote of two-thirds of both houses of Congress, and ratification by three-fourths of the states. Since one of the point of the system is to preserve the political power of the small states, it seems highly unlikely that small states, or senators from small states, would ever vote in favor.
The second possibility is the National Popular Vote initiative, under which states would enact legislation providing that as soon as states representing 270 electoral votes do likewise, the electoral votes of those states would be case in favor of the winner of the national popular vote. To date, eleven states, including my own state of Massachusetts, have enacted such a law, totaling 165 electoral votes. So far, all the states that have acted are reliably Blue states. While traditional swing states seem unlikely to sign on, it seems to me that there may be room for large Red states such as Texas, Georgia, Indiana, and Arizona to join up, since their voters, too, are underrepresented in the current system. Those four states would bring the total to 241 electoral votes. Add Connecticut, Oregon, and Minnesota, all traditional Blue states, and you’re just one state short. So I think this is not hopeless.
It’s not unprecedented for the popular vote loser to win the presidency. It’s happened five times. The trouble is that two of those times have been in the last 16 years, suggesting that there’s a structural problem that needs fixing. The good news is that it can be fixed without amending the Constitution. It will be hard to do, but it seems to me it’s important for the health of the country’s politics, which demand elections that produce national leaders who reflect the nation.