Electoral Kludge

Electoral Kludge

Stephen H. Unger
November 19, 2007
Postscript added 10/8/09

The electoral college is not one of the reasons why our constitution is held in such high regard. It has been a source of trouble starting with the fourth presidential election (remember Jefferson and Burr) and, unfortunately, the amendment passed to remedy the particular failing that surfaced then, left the basic bad idea intact. The ideal solution would be to amend the constitution to do away with this awkward mechanism and provide for direct presidential elections by the people. Altho the chances of getting such an amendment thru are negligible, a brilliant idea has been proposed that would accomplish the same end without the need for an amendment. Before presenting this I will show why such a change would be desirable.

How the Electoral College Works--or Doesn't Work--Now

Each state gets an elector for each senator and for each congressional district. Washington , DC gets 3 electors, so there are a total of 538 electors nationwide. Presidential candidates choose slates of electors in each state in which they are running. Votes cast for a presidential ticket (president and vice president) are actually counted as being cast for the corresponding slate of electors. With the exception of Maine and Nebraska, the election is winner-take-all, i.e., the complete slate receiving a plurality of votes is elected. In Maine and Nebraska, two electors are elected by statewide pluralities, and one elector is elected for each congressional district. So there is an element of proportionality in the results, altho not much since Maine has only two congressional districts, and Nebraska three. In general, with this system, a slim majority of voters can still lead to winning all the electors.

The issue of how a state chooses its electors is specified in the constitution as being at the discretion of the state legislatures. Initially, many states did not provide for the popular election of electors; they were chosen directly by the legislatures.

The votes of the electors of each state are sent to Washington, where they are tallied. A majority of electoral votes is required to elect the president and vice president. If nobody receives a majority, the House of Representatives, chooses the president from among the top three candidates, voting by state, with a majority vote required. In a similar manner, the senate chooses the vice president.

There is plenty of room for all sorts of problems to arise in the operation of such a complex process, and, there have indeed been a number of ugly episodes.

Some Historical Glitches

In 1824 the four major candidates, and the number of electoral votes each received were:

  • Andrew Jackson (99)
  • John Quincy Adams (84)
  • William H. Crawford (41)
  • Henry Clay (37)

    Since nobody received a majority, after a good deal of political negotiating, Adams was elected president by the House of Representatives. Note that it was Jackson who received a plurality of the electoral votes (as well as of the popular votes). More on this at 1824 Presidential Election.

    In the 1876 election, Samuel J. Tilden received a majority of the popular votes, and was ahead of Rutherford Hayes 184-165 in electoral votes, with 20 additional electoral votes of three states (Florida, Louisiana, and South Carolina) in dispute. The legal status of one Oregon elector was disputed. There were numerous charges of fraud and voter intimidation. The congress passed a special law creating an election commission to adjudicate the matter, and, after much turmoil, Hayes was declared the winner 185-184. For a more complete account see 1876 Election.

    Benjamin Harrison defeated Grover Cleveland for the presidency in 1888 by the relatively large electoral vote margin of 233-168, despite the fact that Cleveland outscored him in the popular vote column 5,534,488-5,443,892.

    John Kennedy is officially considered to have had a razor thin popular vote edge over Richard Nixon in the 1960 election. But, in several states electors were chosen independently (rather than as being part of a candidate slate), and a strong case has been made that if the votes for these electors were allocated properly, Nixon would have the popular vote lead. The electoral vote margin was more substantial, but there are those who maintain that Kennedy's electoral vote margin was due to fraud in several states, particularly Illinois and Texas.

    I will spare the reader a discussion of the 2000 election, where one of the few undisputed aspects is that loser Gore had a substantial popular vote plurality (tho not a majority).

    Faithless Electors

    Another problem with the electoral college is that the electors might not cast their votes as pledged. This is termed the "Faithless Elector" Problem. Altho 24 states have laws to punish faithless electors, none have ever been prosecuted, and there may be no way to reverse a "faithless" vote.

    In 1836, the 23 Virginia Democratic electors corresponding to the Van Buren-Johnson ticket were victorious. They did cast their votes for Van Buren, but all chose to abandon vice presidential candidate Richard Johnson. Van Buren was elected president by a substantial electoral vote margin (tho with only 50.8% of the popular vote), but the vice presidential race had to be decided by the senate as Johnson did not receive an electoral vote majority. He did, however, win in that body.

    Including the above case, there have been 18 elections in which there were faithless electors. There have been a total of 156 such electors, of which 71 acted where a candidate died subsequent to the election but before the electoral votes were cast. It happens that none of these instances affected the ultimate outcomes. But, of course, there is no guarantee that this will always be the case.

    Whose Vote Counts?

    Will your vote for president matter in the next election? That depends on where you live. In Wyoming, a state that can be relied on to deliver its electoral votes to the Republican candidate (69% in 2004), a vote cast for any other party's candidate has no chance of influencing the electoral college vote. For that matter, if a Wyoming Republican decides not to vote it wouldn't matter either--unless more than a quarter of the Republican voters do the same. Wyoming is the least populous state. But the same is true for California, the most populous state, which, in the same election went solidly Democratic, by a 10% margin. A California voter can't affect the electoral vote unless there is a very unlikely massive switch.

    The three most populous states, California, Texas, and New York are all in this category (as are most of the least populous states). States with nearly equal numbers of Republican and Democratic voters are termed "battleground (or "swing") states" . During presidential elections, politicians concentrate their campaign efforts on the battleground states, spending much less time campaigning in the other states. Currently, there are about 14 battleground states.

    Furtermore, politicians generally try to curry favor with people living in battleground states, paying much less attention to the needs and views of people in other states. This is another way that electoral college system significantly violates the one-person-one-vote principle.

    Get Rid of the College?

    A Wyoming voter has more weight in the electoral college than 3.8 California voters (the extreme case), and 1.2 South Carolina voters (median case). The electoral college is the result of a compromise between large and small states, as well as a consequence of a certain amount of distrust of the people on the part of some of the founders. Today, it is hard to find good arguments against letting the people vote directly for the president. In a 2007 poll, 72% of Americans favored direct election over the electoral college. If we had direct elections, all Americans would have equal voting power. The obvious way to accomplish this would be to amend the constitution.

    But this would require ratification by three quarters of the state legislatures (or by conventions in three quarters of the states). Opposition from small states, who have a disproportionately large number of electoral votes, constitutes a seemingly insurmountable road block. So what can be done?


    In 2001, two brothers, Akhil Reed Amar and Vikram Amar, both law professors, came up with an elegant solution to the problem, that has since been termed, "The National Popular Vote Proposal" (NPV). It is a scheme for effectively changing the presidential election system so that the candidate with a plurality of popular votes would be elected. And it can be implemented without having to amend the constitution!

    A key point is that the constitution gives the state legislatures full control over the way electors are chosen. Some of the variations that have actually been used are mentioned at the start of this essay. The NPV plan exploits this. Suppose a state legislature approves the following proposition:

  • Our state will choose the complete slate of electors for the candidate who receives a plurality of the popular vote nationwide.
  • This measure takes effect in our state only after the same measure has been approved by states with a majority of the electoral votes, i.e., 270 of 538.

    Once this measure is adopted by states with at least 270 electoral votes, it goes into effect and, in each subsequent presidential election, the candidate with the most popular votes will receive a majority of the electoral votes and hence be elected. It's that simple! Note that it hinges on a pact among the states that approve the NPV idea. Such agreements among states are not uncommon. There are hundreds, including, for example, the NY-NJ Port Autority, and the 7-state Colorado River Compact.

    The website of an organization promoting the NPV idea can be accessed by clicking here. NPV has been endorsed by hundreds of prominent politicians (both Republicans and Democrats), including senators, representatives, and members of state legislatures. Maryland recently became the first state to sign on. In California, both houses approved NPV, but it was vetoed by Governor Schwarzenegger. (Californians are in the process of trying again). The governor of Hawaii also blocked passage with a veto. (See Postscript added 10/8/09.) In a number of other states at least one house has approved NPV. As further evidence that this is not an off-the-wall idea, it has been endorsed by numerous newspapers all over the US including the NY Times, Denver Post, Los Angeles Times, Wichita Falls Times, Chicago Sun-Times, and the Fayetteville Observer.

    Should NPV go into effect, I would guess that, after it has been in operation for a couple of elections, there would be a consensus in favor of a constitutional amendment doing away with the electoral college, since it would then serve no purpose at all.

    Some Arguments

    The governors who vetoed NPV justified their action by saying that they didn't like the possibility that the electoral votes of their states might be cast for a candidate other than the one favored by the voters of their state. If they really thought that way, then perhaps they aren't the brightest bulbs on the tree. The alternative is that they were deliberately obfuscating the issue. The point of NPV is to elect the candidate with a nationwide plurality of popular votes. The electoral votes are only the means to that end. If all states were to pass the NPV rule, then the winner would receive all the electoral votes. The true margin of victory would be in terms of the popular vote, and the popular vote in each state would be the relevant number reflecting the views of the state's electorate.

    A more serious argument is the claim that, if the presidency is awarded on the basis of the popular vote, then election campaigns would be waged only in urban areas, where population is more concentrated, and so rural voters would be neglected. Clearly, if more people dwell in a given area, it is appropriate that candidates spend more time there if all voters are to be equally valued. But that does not mean that they would altogether neglect less populous regions. Votes there count too. NPV supporters point out that, in recent elections, where candidates concentrated on battleground states, within such states, they visited rural as well as urban areas. Governors and Senators of all states are elected by popular vote on a statewide basis. There are no special provisions for rural or urban dwellers.

    A Puzzling Point

    As mentioned above, two governors vetoed the NPV measure votes after passage by their state legislatures. This doesn't make sense to me, since, as I read the constitution, it is left to state legislatures to control how electors are chosen It is not a matter of state law. Therefore, if both houses approve NPV, that should be sufficient. Governors should not be involved at all in the process. This seems very clear from the wording of Artcle 2, Section 1, paragraph 2, of the Constitution, which reads:

    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...
    It doesn't say that the selection process is a matter of state law. Have I missed something here? If not, then the approval process ought to proceed much more easily.

    Post-script on Progress--added 10/8/09

    Hawaii, Illinois, New Jersey, and Washington have joined Maryland in approving the interstate NPV compact since the original posting of this essay. This brings the number of electoral votes among the signers to a total of 61 out of the 270 needed.

    Comments can be sent to me at unger(at)cs(dot)columbia(dot)edu

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