The Electoral College: Is That Constitutional?

In the general election, a candidate needs 270 of the 538 electoral college votes to win the presidency. Image courtesy of The New York Times Upfront — Scholastic

This is the first in a series of articles that ask the question, “Is That Constitutional?” These days, it’s a common question, or, more often than not, a statement — some iteration of “That’s unconstitutional!” from both sides of the political playing field and everywhere in between. But what does it really mean to say that a policy or action is not constitutional? To attempt an answer to this notoriously difficult question, we go back to the United States Constitution itself. With its myriad interpretations, the true meaning held within the founding document of our nation can be elusive. This series looks to history to explore and define what makes up — what actually constitutes—our republic.

In the months that precede each American presidential election, it’s easy to feel cynical about, or at least skeptical toward, the Electoral College system. So much attention is paid to hypothetical electoral math, the polls in key “swing” states, and the votes of certain demographic groups in specific counties that could “decide” the election; both the macro and micro coverage can be disheartening. It starts to feel like the right to vote — a foundational freedom of our democracy — is only consequential for a small number of people in “battleground” states. Indeed, if we all had a nickel for every time we’d heard a state referred to as “blue”, “red” or “purple”, we’d all surely be rich. (Quick trivia aside: Previous to 2000, television networks would alternate between blue and red state assignations for Republicans and Democrats on election night, so as not to favor one or the other. In 2000, when the race went uncalled well past election night and the electoral map was broadcast on all news channels in the weeks that followed, a trend of red for Republicans and blue for Democrats started to emerge. Anchors gradually began to shorthand the Bush vs. Gore race using “red states” and “blue states”, an association that has obviously stuck.)

The rationale for the buffer that the Electoral College places between the vote of the individual and the election of the president began, as things tend to do in a democracy, with a lengthy debate. Some of the framers of the Constitution felt that Congress should vote for the President; those opposed feared this would breed corruption. Others thought state legislatures should vote; those against said this could open the door to presidential dependence on particular states, undercutting the president’s centralized power. Still others advocated for a popular vote of the citizenry, but a national election was deemed logistically impractical. And, moreover, some framers worried, with the glacial pace at which information traveled in the 18th century, that people would vote for a candidate from their state simply because they knew so much more about him, leaving larger states with an unfair advantage.

The system of using presidential electors (the name “Electoral College”, referring to the group of all the states’ electors, was coined later) was a compromise proposed by James Wilson, a Scottish lawyer and one of the framers. According to Article II of the Constitution, each state legislature (by means of their choosing) selects electors to vote for their two top choices for president (at least one being from a state other than their own, to avoid giving larger states disproportionate say). After four election cycles, it was apparent that the article needed an amendment, as the original system made a tie vote likely. Each state’s number of electors is equal to that of its congressional delegation — the number of house representatives (which can change with the census every 10 years) plus two senators (a fixed number). (Washington D.C. receives three electoral votes.)

Electors were, and are, party loyalists who do not hold political office — educated, civically active people (originally all white men, of course). When you cast your vote for president, you are actually requesting that your party’s electors from your state vote for your choice of candidate when they convene in December after the election. Most of today’s opposition to the Electoral College system stems from the belief that only a direct vote of the people could effectively represent the will of the electorate, that a simple majority is the only true representation of a fair election. And, in fact, the majority of the American public agrees. On more than one occasion (the election of 1824, 2000, and others in between), the process has revealed itself to be flawed, particularly in the sense that candidates have won with less than fifty percent of the popular vote.

But a direct, national vote of the people, the most commonly proposed fix to our electoral system, could have major downsides. Built into the Electoral College system is the mandate that the winner receive not just a plurality, but a majority of the electoral votes (270 or more). The concern with a popular vote is that it could open the door to multiple candidates entering the race, thus splitting the vote among several different parties. In theory, a candidate could win with far less than half the vote, leaving a majority of the electorate, loyal to other separate but smaller parties, underrepresented. Said candidate could be funded by a small group of special interests, to which he or she would be beholden. And presidential candidates wouldn’t necessarily have to build coalitions of voters to reach a decisive majority, increasing the chances that the president wouldn’t represent a broad base of the American people. In essence, the framers decided that states’ voices should come before minority party viewpoints. So while at a surface level the Electoral College may seem to be a circuitous path for your vote to take, the underlying intent is to represent the desires of the majority of the American public.

In a direct vote system, candidates would likely need to focus on winning over major population centers, or a majority demographic, in order to garner enough votes to be elected, and their voters would not reflect the country’s diverse population. The Electoral College requires candidates to appeal to people in sparsely populated and rural areas, as well as urban centers, in order to win over the majority of the state’s voters; they have to make their case to people from widely varied racial groups and backgrounds. The winning candidate has to build a distributed majority by assembling a coalition of disparate interests and demographics to capture each state’s electoral votes. This majority stamp of approval allows the winner to functionally govern without their power being overwhelmed by the other two branches of government. At its most effective, the Electoral College system can help to create and maintain a functional presidency and a base level of national unity.

Of course, the Electoral College system is not without its flaws. Candidates can take certain states for granted (these days, a Republican candidate would invest little energy in California, for example, or a Democrat in Wyoming), thus leaving large swaths of voters less engaged in the process. There is room to improve voter engagement and to force presidential candidates to build an even more diverse coalition in their quest for electoral majority. In today’s elections, all of the state’s electors are bound (by law or by custom) by the popular vote of the state (winner-take-all). The strongest argument against the constitutionality of the current Electoral College is that this state-by-state winner-take-all system is not the best way to express a state’s will; and, crucially, it is not mandated by the Constitution. The framers decreed that state legislatures would determine how its electors were distributed based on the voters’ will. For reasons we can attribute to historical political expediency, 48 states today default to a winner-take-all format (save Maine and Nebraska). But it doesn’t have to be this way. There is a strong argument to be made that presidential candidates should have to win electoral votes Congressional district by Congressional district, though concerns over state power and gerrymandering would certainly come into play.

Another problem with the current system is unintentional disenfranchisement of certain voters. The framers, conscious of the possibility of more populous states having disproportionate say in the election, included the two electors per state (reflective of each state’s senatorial seats), thus leveling the playing field for smaller states. But, as it manifests today, certain states’ voters have disproportionate representation when you look at the number of electors compared to certain states’ population; the voters in less populous states have greater electoral representation per capita than those in more populous states. For example, this allocation of electors gives a North Dakotan’s vote about three times the weight of a Floridian’s. What was originally designed as a check on the power of more populous states now sometimes manifests as an overcorrection, causing a degree of disenfranchisement. There is room to look at a better way to express what the framers intended, and strike a more perfect balance between the power of the state and the power of the voter.

However, often lost in debates over the constitutionality of the Electoral College is that the United States is not a direct democracy; we are a representative democracy. The power lies with the people (as opposed to a monarch or dictator), but this power is expressed through elected representatives. The structure of the Electoral College isn’t intended to directly express the notion of one-person, one vote. It is set up to elect a president with a diverse amalgamation of racial, geographic, economic and gender groups in which minority as well as majority interests are represented, in a system that allows both states and individuals to have a say. Our country depends on a balance between states’ power and federal power to maintain stability in a geographically and demographically diverse nation.

With the 2016 presidential election just over a week away, the media’s laser focus on specific counties and states, and all the reductive demographic analysis that comes along with it, can be demoralizing. It’s easy to forget that individual votes do matter, that implicit in the spotlighting of certain areas and voting patterns is an understanding that other states and regions are presumed to be “blue” or “red” only because of the actual, individual votes cast in those places. All this is to say, the Electoral College is flawed, but not fatally so.

Understanding the history of the Electoral College, the thought and collaboration that went into its inception, is the first step toward making it work better. Chris Wallace opened this year’s final presidential debate by asking, “What’s your view on how the constitution should be interpreted? Do the founders words mean what they say or is it a living document to be applied flexibly according to changing circumstances?” He was asking these questions as it relates to the Supreme Court, but the same can be asked of the Electoral College system, or any part of the constitution. The constitutional framers intentionally left room to adjust for anachronisms and unforeseen glitches so that we wouldn’t be beholden to the geographical and political structure of an 18th century America. And, in fact, it is patriotic to ask the question and to have the debate.

But that’s a discussion for next time.