How To Get Away With Murdering The Electoral College

By Rachel McCarthy James

Hillary Clinton’s appeal in this past election lay partially with her attention to detail — so the fact that Donald Trump won on the technicality of the Electoral College must’ve particularly stung.

Like many people, I felt distinctly impotent voting this year. I’d looked forward to casting an early ballot for a woman, but because I live in the reliably red state of Kansas, my vote in the presidential election doesn’t matter. When the results rolled in weeks later, I felt powerless and bewildered again — even worse this time than in 2000, when Al Gore won the popular vote but the presidency went to George W. Bush.

For the second time in my life, I had the Electoral College to blame — and I wanted to know how to kill it.

The Electoral College is the system by which the United States elects its executive officer. Each state is given a number of electors equal to their number of senators and representatives. Traditionally, the electoral votes of each state are awarded to the winner of the popular vote in each state (except Nebraska and Maine) in a first-past-the-post system, and the candidate with the most electoral votes wins the presidency. The system was created in part to exploit enslaved people by counting them as three-fifths of a person while denying them their basic humanity. It is fitting, then, that the Electoral College is often unfair. Five times in our past 58 elections (and twice in the last five), the winner of the electoral vote has not won the most total votes.

How Al Gore lost to George W. Bush in 2000, despite winning the popular vote.

The Electoral College is a holdover, a technicality, but it is also baked into our Constitution. Many distressed citizens are looking to other foundational documents to find a way out of this mess. In Federalist #68, “The Mode of Electing the President,” Alexander Hamilton wrote about the importance of electors in preventing candidates of “little arts of popularity” supported by “the desire in foreign powers to gain an improper ascendant in our councils” — a decree that, in light of recent revelations about Russian involvement in the elections, seems chillingly relevant.

“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,” Hamilton wrote in 1788.

In 2016, that lot has fallen, and so several grassroots movements have risen to challenge the Electoral College to do better before the electors of each state meet on the first Monday after the second Wednesday in December to cast their votes — a process set to happen today.

Some electors are bound by state law to vote for the winner of the popular vote in that state, but 21 states — 15 of which voted for Trump — allow electors to vote as they please. Texas elector Chris Suprun has announced that he will not vote for Trump, and there has been a push in the lead-up to today to convince others to do the same. Michael Baca and Bret Chiafolo of Colorado and Washington are calling themselves the Hamilton electors, as they call on the conscience of their fellow electors to vote for “some fit person as president,” chosen by Republican electors. A myriad of lawsuits have been filed on the disputed obligations of electors to voters, and Harvard professor Larry Lessig claims that at least 20 Republican electors are considering withholding their vote from Trump. Across the country, electors have been flooded with letters and emails from concerned voters.

Amid all this roiling controversy, many are discussing the concrete options available to upend our flawed Electoral College system — not just for this election, but for the future of our democracy.

The Power Of Petitioning

The most popular of these efforts began the dark day after the election, when a former American history teacher spent 10 minutes on Intending only to set off a conversation on social media, licensed clinical social worker Daniel Brezenoff started a petition to call on these conscientious electors to vote for Hillary Clinton by right of her popular victory. “By the next night, there were over two million signatures,” said Brezenoff in a phone interview. The petition currently has 4.9 million signatures, and Brezenoff is working on the effort full-time after starting a GoFundMe that netted over a quarter of a million dollars.

Some websites urging for action before the Electoral College meets ask voters to contact electors directly through letters and e-mail, but Brezenoff takes a different tack. “We actually asked people not to contact electors directly, but they did it anyway,” he said; he has, however, asked signers of the petition to sign open letters and reach out to electors through the #esteemedelector tag.

Brezenoff views his method as more akin to lobbying, with conversations focused on what each elector specifically cares about. He looks for electors who have given any indication of resistance to Trump, such as using the hashtag #NeverTrump or giving money to Jeb Bush, and has a conversation with them about their rights as an elector and the dire consequences which may arise from Trump’s inauguration. “We speak to the particular elector’s values, beliefs, experiences, affiliations.”

“The electors are not chosen in the way the founders envisioned,” Brezenoff said. “They left it up to the states, but they had the idea that the states would pick people who represent different interests in their states, people who were wise and politically experienced, but didn’t have partisan allegiance.” Instead, electors are often inexperienced in politics but deeply loyal to their party. Some didn’t realize they could vote against the state popular vote, but others just don’t think it’s that big of a deal.” One elector agreed that electors have the right to vote their conscience, but he just didn’t think Trump rose to that level. So people are still trying to talk to him and convince him that it is. Who knows if this stuff about Russia isn’t having that impact?”

Growing evidence of Russian interference has motivated some legislators to ask for more time. Rep. Don Beyer, a Democrat from Virginia, was the third legislator to request that electors be briefed on Russian interference into the election, and was the first to ask for a delay of the Electoral College vote. Forty electors made the same request for more information. These efforts were backed by the Clinton campaign.

While millions have tried to stop the election of Trump by the Electoral College in the immediate future, most understand that it is probably not going to work. Only 157 faithless electors have ever voted against the will of their state in the history of American presidential elections, and these votes were usually symbolic or spurred by the death of a candidate. But stranger things have happened this year. “There’s always a possibility that people don’t say anything but vote against Trump. We may be surprised when the electoral votes are counted in Congress on January 6th,” Brezenoff said.

Generally speaking, though, preventing a Trump presidency in this way is a long shot. But there are more pragmatic options to upend the Electoral College in the long term.

A Compact For Change

The National Popular Vote Interstate Compact won’t immediately prevent a Trump presidency, but it may be more realistic for change down the road. In this inter-state agreement, states with a combined 270 electoral votes — the majority needed to elect a president — would band together and apportion their votes to the winner of the national popular vote. So far, 11 jurisdictions possessing 165 electoral votes — Rhode Island, California, Hawaii, Maryland, Massachusetts, Washington, Vermont, New Jersey, Illinois, New York, and DC — have passed the compact, which will not go into effect until states with another 105 electoral votes pass it as well.

“In 2016, 94% of the campaign was conducted in just 12 states, and the rest of us were spectators,” wrote Pat Rosenstiel in an email interview. Rosenstiel is a senior consultant with National Popular Vote, an organization founded in 2006 with the sole purpose of enacting the compact. “[National Popular Vote] is about making you as a Democrat voter in Kansas and me as a Republican voter in Minnesota matter in every presidential election.”

The compact was designed by constitutional scholars Akhil Reed Amar and Vikram David Amar in 2001. Their basis is in article II of the Constitution, which does not specify how electors must be apportioned, but only that they must be decided “in such manner as the [state] legislature thereof may direct.” Some critics have pointed to the Compact Clause in article I section 10, which prohibits states from entering into a compact with each other, as a stumbling block that will require Congressional approval. But scholarly work on the compact argues that since it does not challenge the sovereignty of the nation, there is no conflict.

National Popular Vote isn’t scared of a court battle: “The power to award electors is an explicit and plenary power of the state Legislature,” said Rosenstiel. “It is a settled matter of case law.”

Voting, Ranked

Of course, voting rights efforts are not just about the Electoral College. The Supreme Court struck down key sections of the Voting Rights Act of 1965 in 2013, and voter suppression was a major topic of debate in post-election analysis.

Jill Stein has been an advocate for ranked-choice voting.

During this campaign cycle, many critics (such as Open Primaries) voiced dismay with party approaches to primary elections — another unique feature of the United States voting system. “Primaries in and of themselves are not representative of all voters,” said Michelle Whittaker, communications director of FairVote, in a phone conversation. “It really doesn’t represent the full voice and views of the community. There is a need for parties to [develop] their own system as private organizations [and] we’re not trying to dictate what they should be doing, but I think there are important questions that need to be answered within the party system.”

FairVote was founded in 1992, originally to advocate for proportional representation. Their central focus is on legislative and local efforts to enact multi-choice and ranked-choice voting, as well as collecting data and performing analyses on voting laws and practices. In the current first-past-the-post system, “a majority of people in a district may have wanted someone else, but our outdated system doesn’t give people the full ability to express their preferences through their vote,” said Whittaker.

In the ranked-choice voting system, also known as instant-runoff voting, voters rank their choice of candidates. The candidate with the least votes is eliminated; first-choice ballots for that candidate are apportioned to the second ranked candidate on the ballot. Then the next least popular candidate is eliminated, and their votes are apportioned to the next choice, and so on. In this way, someone who, say, doesn’t like Hillary Clinton but really doesn’t like Donald Trump, could vote for Jill Stein (who happens to be a ranked-choice voting advocate) without worrying that Stein will act as spoiler. If a voter in Michigan ranks Jill first and Hillary second, their vote will go to Hillary once Jill is eliminated.

Ranked-choice voting is used in many university elections and at the local and county level in several other states. It was adopted by cities in the Bay Area, California between 2004 and 2010, and by Maine in the most recent election. In 2017, Minneapolis will use ranked-choice voting for its city offices for the third time, and St. Paul will do the same for the second time.

“Looking at the presidential election presents an opportunity to see that this was a very negative campaign overall. Voters were very dissatisfied with their options and the conversation was always around the lesser of two evils,” Whittaker said. She points to research showing that ranked-choice voting increases civility in campaigning. “[In ranked-choice voting], there’s no benefit for a candidate to go negative on their opponents because ultimately what they need to do to win the race is they need to be campaigning to everyone. They need to go to voters and say, ‘I know this guy may be your first choice, but I want to be your second choice.’”

But while Whittaker thinks that ranked-choice voting may benefit presidential elections, “I don’t think we’re at that stage yet.” Instead, FairVote also advocates for the National Popular Vote Interstate Compact. “Twenty-five states had no visits at all from presidential candidates. The Electoral College creates a system where most of the country doesn’t matter and you don’t matter unless you live in a swing state,” Whittaker said, adding that FairVote research shows that battleground states do not only get more attention, but more federal funding. Indeed, research from Boston University and Michigan State University shows that battleground states are much more likely to get presidential declarations of disaster — especially in election years.

In contrast to efforts that sprang up after the election, both National Popular Vote and FairVote are strictly non-partisan. They have no interest in making Hillary — or anyone other than Trump — president now, but in ensuring that all voices are heard in elections to come. Indeed, efforts to create a more representative system of election are not always promoted by Democrats; in 2012, Pennsylvania Republicans attempted to allocate electoral votes proportionally, and in 1988, Ronald Reagan said of gerrymandering: “I think may be our founding fathers made something of a mistake in the method of apportionment.”

“We check our partisan jerseys at the door at National Popular Vote,” said Rosenstiel. “In 2016, 154 of our bill sponsors across the country were Republicans and 162 were Democrats.”

The Constitution Option

The simplest and cleanest way to abolish the electoral college is not to do an end-run around Congress through state legislatures, but to pass a bill amending the constitution. While there have been more than 700 such challenges in our nation’s history, none were successful.

The highly contentious 1876 election featured an even greater disparity between the popular vote and the Electoral College than 2016. Democrat Samuel Tilden won an outright majority of 50.9% with the highest-ever turnout of 81% among eligible voters, i.e. white men. Assassination attempts were made upon Hayes, and the election was not decided in his favor until days before his inauguration.

Though there were no popular vote-Electoral College disagreements in the 20th century, there were several near-misses to change the system. A 1934 amendment proposing proportional appropriation of electoral votes came within two votes of passing both houses of Congress.

After the very close election of 1968, Gallup found that 80% of the American people favored the abolishment of the Electoral College, and the Bayh-Celler amendment to replace the Electoral College with a system based on the national popular vote gained the support of President Nixon before being filibustered out of existence in 1971. The “Every Vote Counts” amendment to institute direct popular voting was introduced in 2005 and again in 2009, but neither made much headway.

The polarization currently gripping this country makes it hard for elected representatives to make any progress, even though more people want to get rid of the Electoral College than want to keep it (though this margin is narrowing thanks to Republican support for a system that has lately favored them).

Outgoing Democratic senator Barbara Boxer introduced a bill to abolish the Electoral College through a Constitutional amendment, but it is unlikely to succeed in a Republican-controlled Congress that recently won the White House through that very process. Furthermore, an amendment must be ratified by three quarters of the states to be passed, and many argue that small states would not be willing to give up their disproportionate power.

But that may be changing as presidential campaigns narrow their focus to a few swing states (to their own peril, as Michigan and Wisconsin showed last month). As FairVote and National Popular Vote are quick to point out, 94% of presidential campaigning takes place in one quarter of the states. The 38 mostly-ignored states comprise three quarters of this country, enough to pass an amendment which would see them rise in the estimation of presidential campaigns.

How Hillary Clinton lost to Donald Trump in 2016, despite winning the popular vote.

This election has stirred anger and sorrow in voters from California to Kansas to Pennsylvania. But advocates for electoral reform have reason to be hopeful, and excited. “Before election night we would get an average of 1,000 site visits per day. The 10 days following election night we received more than 2 million pageviews,” said Rosenstiel. “I am increasingly confident that the state-based winner-takes-all-system will be replaced with the National Popular Vote Interstate Compact — but we need [Americans] to weigh in.”

“It’s all really exciting work for the next several years [in] building up more interest [and] supporting voters and reformers and activists in the next great place that will adopt ranked-choice voting,” said Whittaker. She encourages people who are concerned about their system of election to have conversations about their frustrations with their city, county, and state system of voting — and then assess what can be done to give everyone a stronger voice:

“The most critical step is engaging with neighbors, friends, family, co-workers and talking about what they don’t like about their elections and what they’d like to see change for the better.
We’ve been having these conversations, maybe ranting, on Facebook, Twitter, whatever. But now is an opportunity to bring folks together, have these conversations, reach out to people we haven’t talked to about reform [and] create common ground on making democracy better for everyone.”
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