It is my position that the winner-take-all aspect of our Electoral College is at the root of our discontent with elections and has been for several decades.  I may be wrong.  Let’s explore.

Eliminating the Electoral College would require amending the Constitution.  A constitutional amendment requires a two-thirds super-majority in Congress plus ratification by three-fourths of the states.  That is not going to happen in the next five years if ever.  So let’s look at the possible and leave the impossible alone.

The Constitution says nothing about how the states should allot their electoral votes. The assumption was that each elector’s vote would be counted. But over time, States passed laws to give all of their electoral votes to the candidate who wins the state’s popular vote count. This is known as winner-take-all Electoral College system for electing the President and Vice President.

When a State’s popular vote is very close, so close that declaring only one voting district  invalid could change who won the popular vote, temptation to do so threatens what we like to think is a pillar of America — that being free and honest elections.  And even when that temptation is resisted, a losing Presidential candidate could merely just say off the top of their heads, that one or more precincts mishandled ballots to set off riots and cause voters to not accept the results of an honest and fair election.  Sound familiar? 

It’s not like the Electoral College hasn’t mostly agreed with the popular vote.  In fact, only five (5) times in history, have presidential candidates won the popular vote but lost the Electoral College.  Too many?  Well considering two of those elections have occurred since 2000, I would say yes. The other three times were in 1824, 1876, and 1888.  If this trend where the winner of the popular vote looses an election continues, the divide in America will be a ticking time bomb.

Why would this trend continue?  Because the huge population shifts in the 20th century is giving small States more power and large States less power than was evident in the original 13 Colonies when the Electoral College was negotiated by our Founding Fathers.  And, because after the 2020 Presidential election, Republicans have passed over 30 laws in 17 states to facilitate partisan audits and allow state legislatures to replace previously protected election boards with partisan actors when they don’t get the results they want. Gerrymandering and mail-in ballots issues pale in significance of the elimination of protected election boards.

Prior to Republican controlled states passing new voting laws, according to a new NPR/PBS NewsHour/Marist poll, almost 9 in 10 Democrats and 60% of independents said they trusted the 2020 election but only a third of Republicans agreed although among Republican and Republican leaning voters, those with a college degree trust elections more than those without.

The survey also found that most Americans feel that former President Donald Trump has continued to say the 2020 election was rigged mostly because he didn’t like the outcome.  But those results are largely because of Democrats and independents.  Many Republicans appear to have bought into Trump’s allegations about nonexistent widespread fraud in an election he lost. He often said during the 2016 and 2020 election campaigns that if he lost it would be because the election was rigged.  He was true to his word.

Let’s back up a bit and review how State’s Electoral Votes are allocated.  Every State gets two votes for its senators in the U.S. Senate plus a number of votes equal to the number of its Congressional districts.  Congressional districts in the United States are electoral divisions for the purpose of electing members of the United States House of Representatives. The number of voting seats in the House of Representatives is currently set at 435 with each one representing approximately 711,000 people. 

Each of the 50 states is given one guaranteed seat in the House of Representatives and any additional seats are based on their population as indicated in a US Census taken every 10 years.  But since the total number of Districts are set at 435, for every seat a growing state gains, another state has to lose a seat.  That is why California has 55 Electoral Votes and Wyoming has only 3 (2 for their Senators, and 1 for their Representative).  Although on the surface the allocation of Electoral College votes seems fair; in reality due to all states getting two votes for each Senator regardless of their population, a person’s vote in a small state like Wyoming is the equivalent of four (4) voters in large states like California.

A total of 538 electors form the Electoral College (100 Senators, 435 Representatives, and 3 from the District of Columbia).  Each elector casts one vote following the general election. The candidate who gets 270 votes or more wins.

Electoral College Roots

The delegates to the 1787 Constitutional Convention had to resolve how to elect the president. It took months on that issue alone.  The two choices were Congress electing the President or the popular vote should elect the President. Their compromise was the Electoral College.

In modern elections, the first candidate to get 270 of the 538 total electoral votes wins the White House.

At the time of the Philadelphia convention, no other country in the world directly elected its chief executive.

One group of delegates felt strongly that Congress shouldn’t have anything to do with picking the president due to giving them too much opportunity for chummy corruption between the executive and legislative branches.

A second group of delegates was dead set against letting the people elect the president by a straight popular vote because they thought 18th-century voters lacked the resources to be fully informed about the candidates, especially in rural outposts, and worried a populist president appealing directly to the people could command dangerous amounts of power.

For 32 of the United States’ first 36 years, a slave-holding Virginian occupied the White House (John Adams from Massachusetts was the exception).  The southern states had few white male voters than the northern states so clearly the creation of the Electoral College was in part a political workaround for the persistence of slavery in the United States.

There were no political parties in 1787. The drafters of the Constitution assumed that electors would vote according to their individual discretion, not the dictates of a state or national party. Today, most electors are bound to vote for their party’s candidate.

After the unanimous election of George Washington as the nation’s first president, the Founders figured that consequent elections would feature tons of candidates who would divide up the electoral pie into tiny chunks, giving Congress a chance to pick the winner. But as soon as national political parties formed, the number of presidential candidates shrank. Only two U.S. elections have been decided by the House and the last one was in 1824.

The Founders incorrectly assumed that most elections would ultimately be decided by the House of Representatives. According to the Constitution, if no single candidate wins a majority of the electoral votes, the decision goes to the House, where each state gets one vote.  That certainly is not representative of our nation’s political demographics. That assumption played in how States would be added to the original 13 Colonies where States allowing slavery would want to make sure future expansion would need to be one for one.

The populations in the North and South were approximately equal, but roughly one-third of those living in the South were held in bondage. Because of its considerable nonvoting slave population, that region would have less clout under a popular-vote system. The ultimate solution was an indirect method of choosing the president, one that could leverage the three-fifths compromise, the Faustian bargain they’d already made to determine how congressional seats would be apportioned.

With about 93 percent of the country’s slaves toiling in just five southern states, that region was the undoubted beneficiary of the compromise, increasing the size of the South’s congressional delegation by 42 percent. When the time came to agree on a system for choosing the president, it was all too easy for the delegates to resort to the three-fifths compromise as the foundation. The peculiar system that emerged was the Electoral College.

In 1800, the Electoral College operated as one might have expected due to the three-fifths compromise. The South’s baked-in advantages—the bonus electoral votes it received for maintaining slaves, all while not allowing those slaves to vote—made the difference in the election outcome. It gave the slaveholder Jefferson an edge over his opponent, the incumbent president and abolitionist John Adams. That election continued an almost uninterrupted trend of slave state favorites winning the White House that lasted until Abraham Lincoln’s victory in 1860.

The Thirteenth Amendment outlawed slavery, thus ridding the South of its windfall electors, sort of, meaning blacks couldn’t as easily use their newly acquired right to vote which continues today.

Why change now

  1. Voter suppression — subtle laws that make it harder for people to vote.
  2. Voting administration — substituting partisan people for nonpartisan administrators, purging voter election boards, allowing election boards to eliminate polling places.
  3. Population shifts– Due to technology the family farm is giving way to large corporate farming and today only 1.3% of those employed in the United States work directly in agriculture now feed the entire country and beyond.  This has resulted in people migrating to other states mostly to the coasts and large States continue to get bigger and small States continue to get smaller.  The Electoral College hasn’t kept up.
  4. The winner-take-all Electoral College — creates Red States and Blue States and about five (5) States that are swing States.  That means basically the winner of the Presidential election is decided by five States.
  5. The winner-take-all system — also makes it tempting for some States where the winner may be decided by less than 1000 votes to toss out the votes from some precincts to change who would get the entire State’s Electoral College vote.  That temptation will be easier now that many States in 2021 have given their legislatures the final say in which votes/precincts get ratified.  But, eliminate the winner-take-all element of the Electoral College and the tossing out of a precinct’s votes would not have the same impact.
    1. In 2020, despite the 7 million-vote victory that Joe Biden won in the popular vote, three (3) battleground states could have caved to pressure from President Trump to “find” 45,000 more votes  for Donald Trump to have won a second term. 
    1. The same could have happened in 2016 when about the same number of Electoral votes could have been “found” to have elected Hilary Clinton who had more than four million popular votes than Trump.
    1. Al Gore had over a half million more popular votes than George Bush and they were basically tied in the Electoral College requiring the Supreme Court to get involved.
  6. Section 5, Voting Rights Act — On June 25, 2013, when the United States Supreme Court held that it is unconstitutional to use the coverage formula in Section 4(b) of the Voting Rights Act to determine which jurisdictions are subject to the preclearance requirement of Section 5 of the Voting Rights Act.
    1. Due to a history of discriminatory practices, section 5 of the 1965 Voters Rights Act was enacted to freeze changes in election practices or procedures in some States until the new procedures have been determined, either after administrative review by the Attorney General, or after a lawsuit before the United States District Court for the District of Columbia, to have neither discriminatory purpose or effect. Section 5 was designed to ensure that voting changes in covered jurisdictions could not be implemented until a favorable determination has been obtained.  Those States have since been able to make it easier or harder for selected people to vote.

Yes, I realize eliminating the winner-take-all system will be fought by Republicans as their presidential candidates have only won the national popular vote once in the last 32 years.  The Electoral College would still exist and small states would still have their votes count more than the votes from larger states.  It would still take 270 Electoral Votes to win the election regardless of the final popular vote.

A political Party can decide to if they want to appeal to a larger group to be competitive for the popular vote or just take advantage of voting structure like the winner-take-all Electoral College and allowing small States to have their votes weighted.

Alternatives that keeps the Electoral College but fixes the most glaring problems

Alternative 1:

  • Two electoral votes to national popular vote winner; remainder apportioned by congressional district.

Alternative 2:

  • Two electoral votes to national popular vote winner; state winner-take-all for the remainder

Alternative 3:

  • The National Popular Vote Interstate Compact (NPVIC). Started in the mid-2000s, the compact requires states to pass laws that would award their electoral votes to the candidate who wins the popular vote nationally. Under the current plan, states that join will not activate the compact until enough states have joined to total 270 electoral votes. That is, the compact does not go into effect until there is a critical mass of states for it to be effective.
  • Currently, 15 states and DC have approved the NPVIC. These states currently total 196 electoral votes and progress is being made to increase the number of States to join in.