by Scott Wagner
Like much of 2020, the US presidential election has felt like a marathon of misery. Election Day was over two months ago. Joe Biden won more votes than any presidential candidate in US history, beating President Donald Trump by over six million votes. He won a commanding 306-232 victory in the Electoral College. And yet, a cabal of Republican Senators baselessly intends to challenge the results of the election when the returns are presented in Congress today.
One would think that, in a democratic republic, the candidate with the most votes for president should become the president. One would think that the process of certifying that result would be fairly straightforward. Instead, presidential elections run through the Electoral College. It is the ugly stepsister of American democracy, a confusing and vestigial institution where unelected representatives meet for only one day to select the most powerful political official in the free world. At best, it is anachronistic; at worst, it is a vehicle for perversion of the popular will.
For our international readers—and for our followers based in the United States—here’s an overview of one of the strangest democratic institutions ever created, and an explanation of the chicanery currently playing out in the US Senate.
So the Electoral College chooses the next President?
The Electoral College consists of 538 electors composed of delegates from each of the 50 states (along with three electors from the District of Columbia). These delegations range in size based on how many legislators a state has in Congress. For example, California has 55 legislators (53 Congresspersons and two Senators), so it has 55 electoral votes. In contrast, Wyoming only has one Congressperson and two Senators, so Wyoming only sends three electors to the College. In this way, more populous states have more electors, though the system is not perfectly proportional (more on that later).
Then that whole election in November…what was that for?
That was to decide which slate of electors each state would send to the Electoral College.
Let’s back up a moment. Before the November elections, both political parties—Democrats and Republicans—put forward a slate of electors in each state. These electors are usually long-serving party members who don’t currently hold elected office. Voters technically didn’t cast a ballot for Joe Biden or Donald Trump; they cast a ballot for a slate of electors representing one of the two candidates. Whichever slate of electors received the most votes in each state was sent to the Electoral College. For example, Joe Biden won the state of Wisconsin this year; as such, Wisconsin sent a Democratic delegation to the Electoral College, and each of those ten electors voted for Joe Biden.
There is no one single “national presidential election” in the popular sense. Instead, the presidential election is actually a conglomeration of fifty state elections (and an election in the District of Columbia).
That seems unnecessarily complicated. Why is it done that way?
Because the delegates to the 1787 Constitutional Convention couldn’t agree and created a Frankensteinian compromise.
The method by which the chief executive would be chosen raised hackles among the delegates to the convention. He (the Framers only ever imagined the president could be a he) would be the most powerful figure in the new US government; the Framers needed a way to ensure that such a person would be eminently qualified, acceptable to the public, and an individual of good character. The United States had just broken away from the grip of an absolute monarchy; they did not want to inadvertently create a new autocratic government.
One early proposal called for members of Congress to be responsible for the election of the president. However, as James Madison wrote, “the appointment of the Executive should either be drawn from some source, or held by some tenure, that will give him a free agency with regard to the Legislature.” One key principle of the US Constitution is the separation of powers; the powers could not well be separated if the chief executive was beholden to the legislature for his continued employment.
Pennsylvanian James Wilson argued that the people, not Congress, should have sole responsibility for electing the president. He proposed a national popular election to decide the chief executive. Such a method would be the most democratic means of choosing a president—but “pure democracy,” warned Madison, “can admit no cure for the mischiefs of faction.” Madison and the other Framers had witnessed firsthand the power—and the danger—of a riotous mob in the years preceding the Revolutionary War. Their goal was to channel and constrain the political passions of the people to create a government that was at once stable and a true expression of the popular will. “It was…peculiarly desirable,” wrote Alexander Hamilton, “to afford as little opportunity as possible to tumult and disorder.”
The Electoral College was their solution. Instead of giving the power of electing the president directly to the people, the Framers gave it to “men most capable of analyzing the qualities adapted to the station,” a body of statesmen who could soberly and dispassionately make a rational choice on behalf of the American people.
Sobriety…rationality…dispassion…these are qualities lauded in classical republicanism but all too often ignored in the dirty realities of politics. So it was in the United States. Virtue gave way to partisanship as the squabbles of the Washington administration resulted in the cleavage of the American political landscape into two distinct political parties. States soon chose electors based on party affiliation rather than civic duty as the Electoral College was co-opted into party machinery. Whatever independence the electors once had was stripped away. “Faithless electors”—electors who vote contrary to their state’s wishes—still occasionally make an appearance, but they are exceedingly rare and have never changed the outcome of a presidential election.
I’ve heard that the Electoral College is racist—is that true?
Its origins certainly are. Because amidst all that rhetoric about democracy, republicanism, and preserving good governance, there was a more insidious reason for the adoption of the Electoral College: power.
Madison publicly argued against a popular vote in the Federalist Papers by railing against populist demagoguery, but within the confines of Independence Hall, he proffered a different reason entirely. “The right of suffrage,” Madison said, “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.” In other words, the South would have less influence in a popular presidential election because a significant portion of their population was enslaved. In 1790, enslaved persons accounted for 40% of Virginia’s population.
Tying the number of electors to representation in Congress, however, would greatly increase the South’s influence due to the Three-Fifths Compromise. That scornful deal stipulated that, for the purposes of calculating representation in Congress, three-fifths of the total enslaved population would be added to the number of free persons in a state. The more enslaved persons Southerners acquired, the greater their representation in Congress – and, within the Electoral College model, the greater their sway over the selection of the president. Power fed cruelty, and cruelty fed power.
Madison’s gambit paid off. Four of the first five presidents were slaveowning Virginians. In the 72 years of US history preceding the Civil War, approximately 50 of them saw a Southerner in the highest political office, and no Northerner served two terms. Much of antebellum US policy was driven by Southerners intent on preserving and expanding their peculiar institution, all enabled by the democratic oddity of the Electoral College.
The Civil War and the subsequent Reconstruction amendments torpedoed the Three-Fifths Compromise and the resulting racist tilt of the Electoral College. In the next one hundred years, just four Southerners were elected president, and two of them (Harry Truman and Lyndon Johnson) rose to the office through the death of the previous president. But while the Electoral College has become less racist, few would defend it as a fair and equal institution.
Is that what Senate Republicans are arguing about today?
Not exactly. Senate Republicans aren’t opposed to the Electoral College—indeed, the institution tends to benefit the current Republican coalition. Instead, they are challenging the 2020 electoral returns from a handful of states in which they erroneously allege the occurrence of widespread voter fraud. Led by Senator Ted Cruz, the small group of senators want to create an election commission like the one used to decide the Election of 1876 in order to audit the election for irregularities and change the results of the vote, if needed.
Their demands demonstrate a dismal comprehension of US history. The commission created in 1876 was an ugly last-ditch solution to an intractable problem; both parties claimed victory in three states, and no method of resolution existed in the Constitution or in legal precedent. Intended to tamp down the flames of discontent, the commission instead fell victim to rampant corruption and partisan buffoonery. It was meant to be a bipartisan commission composed of seven Democrats, seven Republicans, and one independent—Supreme Court Justice David Davis. Democrats in Illinois attempted to woo Davis to their side by bribing him with the vacant Illinois Senate seat. The bribe backfired spectacularly; Davis accepted the Senate seat and subsequently resigned his position on the electoral commission. His replacement, Justice Joseph P. Bradley, sided with the Republicans in an 8-7 vote that awarded the election to the Republican candidate, Rutherford B. Hayes. Subsequent legislation including the Electoral Count Act of 1887 was passed to prevent the need for such a commission ever again.
Yet Cruz’s historical comparison falls short on an even more important count: validity. In 1876, both parties engaged in rampant vote-rigging campaigns, particularly in the South. In one instance, Democrats attempted to distribute ballots with the Republican logo stamped over Democratic candidates in an effort to confuse illiterate voters. Worse still were the widespread voter intimidation efforts launched by white supremacy groups like the White League targeting Black Southerners eager to exercise their constitutional right to vote. While it’s impossible to measure the extent of the problem, it is no stretch to say that the Election of 1876 was fraudulent.
Claiming massive voter fraud in 2020, however, is a delusional fantasy. According to a statement from the executives of the Cybersecurity and Infrastructure Security Agency (CISA), the organization tasked with protecting the integrity of US elections, the 2020 election “was the most secure [election] in American history.” Donald Trump’s own attorney general William Barr agreed, telling AP News that “we have not seen fraud on a scale that could have effected a different outcome in the election.” According to Business Insider, Trump’s legal team has filed over 40 lawsuits pertaining to the 2020 election—they’ve lost every single one. Dominion voting machines didn’t magically destroy votes; dead people did not vote in record numbers; and no, Hugo Chavez did not pull a Lazarus and arise from the dead to steal the election from Donald Trump.
Joe Biden won. It’s as simple as that. Unfortunately, with a system as convoluted and unequal as the Electoral College, simplicity can be hard to come by.
How is the Electoral College unequal?
Inversions—differences between the popular vote and electoral vote—mean that the candidate who wins more votes nationwide doesn’t always become president. Twice in the last twenty years (2000 and 2016), the candidate who lost the popular vote won the presidential election. There’s two main reasons this can happen: disproportional voter distribution and winner-take-all systems.
Let’s start with the first. The number of electors is not proportional to the population of each state. The largest state in the US, California, has a population of 39.5 million people and 55 electoral votes, meaning that each individual elector represents around 718,000 Californians. Wyoming, the least populous state, has a population of 579,000 people and three electoral votes, meaning that each individual elector represents around 193,000 Wyomingites. In short, an individual voter in the state of Wyoming exerts greater influence on the Electoral College than an individual voter in California.
The bigger issue is the winner-take-all voting systems used by 48 of the 50 states. Whichever presidential candidate receives the plurality of votes in the statewide popular election will receive all of the state’s electoral votes, regardless of the voting margin. That disparity contributed to Donald Trump’s victory in 2016. In that election, Trump won Wisconsin, Michigan, Ohio, and Pennsylvania by just a few thousand votes, but received all the electoral votes from those four states, giving him the victory despite his loss in the national popular vote.
Winner-take-all voting systems create millions of submerged votes – votes that will almost certainly do nothing to sway the result of an election. Black voters in the South reliably vote for the Democratic Party, but they are outnumbered by white Southern voters who trend more conservative. As a result, most Southern states consistently vote for Republican candidates, despite the wishes of Black Southerners. No state has more Republicans than California—nearly six million Californians voted for Donald Trump in 2020. However, more than 11 million Californians voted for Joe Biden, meaning conservatives in the state have little-to-no say in the election of the president.
Can we get rid of the Electoral College?
Not a chance, though we’ve tried. According to the National Archives, more than 700 proposals have been presented to Congress to change or eradicate the Electoral College—more than on any other topic. None have succeeded. The Electoral College is an integral part of the US Constitution; abolishing it would require a constitutional amendment. Given the inherent difficulties in amending the Constitution, and the prevailing partisanship of US politics, Constitutional amendments are little more than a pipe dream.
Defenders of the Electoral College argue that the institution is a method of protecting the minority from what Alexis de Tocqueville termed the “tyranny of the majority.” Without the Electoral College, they argue, smaller states and voters living in the less populous “flyover” states will be overruled by coastal elites in New York and California. Such an argument presumes that these liberal enclaves on the coast uniformly vote for the Democratic Party; they most assuredly do not.
Advocates for the Electoral College also suggest that the archaic institution forces presidential candidates to campaign in multiple states to build a national coalition—this was one of Hamilton’s original arguments in favor of the Electoral College. Yet the current electoral system doesn’t exactly lend itself to barnstorming campaign strategies; in 2016, just six states played host to over two-thirds of all presidential election campaign events. 38 states saw fewer than ten campaign events in the entire 2016 campaign cycle. Requiring candidates to campaign to all Americans no matter their state is a worthwhile goal; the Electoral College does not do so.
Yet there are options for reform within the Electoral College system. One option could be to do away with winner-take-all systems and adopt proportional voting models. Maine and Nebraska are the only two states to split their electoral votes, dividing them based on the electoral returns in each Congressional district. Proportional voting addresses the problem of submerged voters that plague the current system, but it elevates the importance of Congressional districts and would make gerrymandering all the more vitriolic and partisan.
Another option is known as the National Popular Vote Interstate Compact (NPVIC). The initiative, enacted at the state level, pledges the state to commit their electors to the winner of the national popular vote—regardless of the results in that individual state. The amendment, however, only goes into effect once states totaling 270 electoral votes have passed the measure. At the time of this writing, 15 states and the District of Columbia have passed the NPVIC, combining for a total of 196 electoral votes. If eventually successful, the NPVIC would in essence create a national presidential election based on the popular vote, preserving the Electoral College while eradicating any reason for its existence.
Would that be the best method for electing a president? Perhaps. At the heart of this debate is a fundamental question: what is the most effective, fair, and representative means for choosing the leader of a democratic republic? The Framers of the Constitution created the Electoral College, of which Alexander Hamilton remarked “that if the manner of it be not perfect, it is at least excellent.” Many Americans today would disagree; yet an effective replacement remains elusive. Archaic, anachronistic, and asinine though it may be, the Electoral College has proven to be a resilient, if squeaky, wheel in the machine of American democracy.
Scott Wagner is the supervising editor of INTERZINE.