Exploiting the Electoral College

Increased political divides have made the Electoral College a target for undermining our Democracy

Every Presidential election renews the discussion on whether to switch from the Electoral College to the popular vote.

The Electoral college is flawed:

• It gives more weight to votes from small states and less to votes from large states. A voter in Wyoming is 4x as powerful as a voter from Texas.

• It creates a situation where a vote from a state’s minority party has no impact on the election at all.

• It causes Presidential candidates to focus their time and energy on swing states while ignoring the states that are a solid lock for either party.

While all of that makes removing the Electoral College an important discussion to have, there are even larger risks with the Electoral College.

Before diving into the other risks of the Electoral College, I want to briefly cover why we have this system at all. 

When the Constitutional Convention was held to create a new founding document for the United States, there were different camps on how the government should work. Their positions covered all aspects of government, from how it should be run, what divisions there should be, and how people get into positions of power.

Debates, negotiations, and compromise produced aspects such as the bicameral Senate and House of Representatives, the three branches of government, and the foundational laws of our nation.

There was one troubling sticking point that saw a fierce divide between the federalists and those who wanted power in the hands of the people.

Virginia and the rest of the South feared that the more populous North would be able to control the government. The North already wanted to outlaw slavery, something the South relied heavily on for their plantations and their wealth.

This is where the dehumanizing 3/5th person rule came from for slaves. It allowed Virginia to become the most populous state by a significant margin. It is not a coincidence that 4 of the first 5 Presidents were all from Virginia.

The next issue to be solved was how to determine who becomes President. Federalists wanted the power of choosing the President to be firmly in the hands of Congress, specifically the House of Representatives. Anti-federalists wanted a popular vote to determine the President. That is how far back the argument for a popular vote goes.

The compromise reached was the Electoral College. Each state would get to choose their electors and the number of electors would be based on the state’s representatives in Congress, a combination of their Senate and the House of Representative seats.

Here is where the other issues with the Electoral College were introduced. A measure was included that if no Presidential candidate received over half of the Electoral College votes, then the House of Representatives gets to choose who will be President. This has happened twice in US history. 

With America’s political system dominated by only two parties, an election where no candidate reaches 270 electoral votes is highly unlikely. If only two candidates are on the ballot this can only happen with a perfect tie. Of course there typically isn’t only two candidates on the ballot, third party candidates run too.

America’s Democracy is set up to work against third parties and independent candidates, especially at the Presidential level. There is no chance of a third party winning the Presidency. However a third party candidate can become a spoiler effect, where they take votes from a candidate that would have likely won a state but who now lost without those votes. This has come into play in past elections. 

A particularly popular third party candidate could win a couple of smaller states and therefore trigger a contingent election where no candidate reaches 270 electoral votes. This would give the power to the House of Representatives to decide who will be the next President.

This situation is further complicated by the fact that the House of Representatives is also who certifies the Electoral College votes. This opens up nefarious tactics that could be used to undermine the election.

We saw this in 2020 with the fake elector scheme used by Trump to replace the real electors of several states with those who would cast their vote for Donald Trump instead of Joe Biden who won the state. 

A faithless elector is an elector who votes differently from how they were meant to vote, either voting for a different candidate or abstaining from voting. The rules and consequences of doing this varies by state and there have been occurrences of faithless electors throughout our history. What Trump was attempting was a coordinated effort to create enough faithless electors to change the election outcome in his favor.

There is another approach to manipulating the Electoral College. Refusing to certify the results. If enough members of the House of Representatives refused to certify the results from key states, the election would be in limbo. How to move forward would be a matter for the courts. The Supreme Court currently has a 6-3 conservative majority that is overall far right in their positions.

While this all sounds theoretical, 2020 showed how far some Republicans were willing to go to undermine America’s elections in order to change the outcome.

Representatives Thomas Massie and Elise Stefanik have both said they might not certify the election results if Trump doesn’t win in 2024.

To think that America’s entire political system could get ripped apart because there are politicians who care more about their party than they do about the country is not that far-fetched. And a lot of the safeguards of our democracy are based simply on politicians having the decency to do the right thing. 2020 showed that we need more laws to protect our elections and our processes. The biggest protection of all could be ending the Electoral College once and for all.

This isn’t a modern proposal. The Electoral College was almost abolished in 1970. 

At the time, polling showed 80% of Americans wanted to switch to the popular vote. The House of Representatives took up the measure and it passed 338-70. When it reached the Senate, a group of Senators who represented states that would lose some power with a change to the popular vote fought the measure and it failed to pass by just 5 votes.

Donald Trump, George W. Bush, Benjamin Harrison, Rutherford B. Hayes, and John Quincy Adams are all Presidents who won the Presidency without winning the popular vote. There is always someone or some party that benefits from the Electoral College which is what makes it so difficult to abolish. But there is another way.

The National Popular Vote Interstate Compact. 

This is a collection of states that have all agreed to utilize the national popular vote. Once the group of states is large enough to equal or exceed 270 electoral college votes, the agreement is that all of these states will award their electoral votes to the candidate who wins the popular vote and therefore elect that candidate as President.

Source: Wikipedia

So while it is unlikely in the near future for Congress to abolish the Electoral College and replace it with the popular vote, there is a path forward. If you live in one of the states that is yellow on the map above, then push your state to fully adopt the compact to get our nation one step closer to making sure that the President is always the candidate voted for by the people.