The movement to skip the electoral college

April 23, 2019

 

Today, we live in an era where we are bombarded by constant communication, with 24-hour cable news channels, emails flooding us with advice and information, and social media coming at us from every side, providing us with news, images and details, factual and some that are less-than, at all times of the day and night. Imagine back a couple of centuries, a time when only a portion of the population was not only educated, but informed about politics, world events, literature, mathematics, arts and other civil discourse. The nation's leaders creating our country were concerned that the population as a whole (meaning white males) were not prepared or knowledgeable enough to be trusted to pick their leaders, and feared a demagogue, similar to a king or tyrant, resulting in our three separate, but equal, arms of government – the executive branch; Congress, with two houses, one which the public chose, the other chosen by elites; and the Supreme Court. The ultimate goal: checks and balance of power.

 

 Remember back to your eighth grade government class, where you learned all about the Electoral College, which was established by the founders of the U.S. Constitution at the Constitutional Convention  in 1787 in order to make sure only qualified people would be elected President, and because they believed it was an ironclad way to prevent anyone from being able to manipulate the citizenry. “Hamilton and the other founders believed that the electors would be able to insure that only a qualified person becomes president. They believed that with the Electoral College no one would be able to manipulate the citizenry” who often did not receive news and information for weeks or months, said Marc Schulman, author, historian, educator and host of Historycentral.com.

 

Reading that sounds pretty crazy today, in 2019, with Donald Trump – a former reality show host and New York real estate baron with no previous experience in politics, and almost 20 people of various backgrounds and experiences running to represent the Democratic party as its presidential candidate in 2020. Since the 2016 election – the second in less than 20 years where the popular vote and the Electoral College vote – the one state's delegates vote for as a block for winner of the state's popular vote, at least in 48 out of 50 states – have differed, and there are heightened calls for changes to the Electoral College – or for it to be gotten rid of completely, a relic of another time.

 

In the 232 years since the Electoral College was created, there have been five times where the popular vote has not been reflected by Electoral College votes – 1824, 1876, 1888, 2000 and 2016.

 

The reasons the framers sought to have electors, or informed proxies, for the public was two-fold. 

 

“The Electoral College was created for two reasons. The first was to create a buffer between the population and the selection of a president. The second, as part of the structure of the government that gave extra power to smaller states,” Schulman explained, noting that the founding fathers were afraid of a tyrant who could manipulate public opinion and come to power.

 

“The Electoral College was put in place for a reason. The framers knew they wanted a democracy – but not too much of a democracy,” said David Dulio, professor and chairman of the political science department at Oakland University. “They wanted the elites to have a big role, and didn't have a ton of trust for everyday Americans, which is clearly reflected as they started the House of Representatives as the house that is elected by the people, and the Senate, which was chosen by electorates,” or state legislatures, until the 17th Amendment was proposed in 1912, and ratified in 1913, when senators were chosen for six-year terms by popular vote. The members of the Constitutional Convention considered the Senate to be equivalent to the British House of Lords, and an “upper house” of Congress, containing the “better men” of society, versus the House of Representatives, which they viewed more like the British House of Commons, the House of the People.

 

“As the framers envisioned it, in 2016, Michigan would have had 16 elites – really smart people who were going to debate Clinton versus Trump and then choose (who the electors would go to),” Dulio explained. “And we've gone from that to where 48 out of 50 states (only Maine and Nebraska give proportional votes to the Electoral College) vote in blocks where the winner-picks-all – by voters. It's totally different from what they envisioned.

 

“But we can't forget that states at that time were important political entities,” he said. “The framers (of the Constitution) looked at states as just as important as countries – or more so – and wanted to maintain that importance,” Dulio noted. “By giving states that role, it maintains their relevancy. Part of the issue with still having the Electoral College is most people lack the perspective of the framers.”

 

“The framers didn't want a pure majoritarianism,” said Norman Williams, law professor and associate dean for academic affairs at Willamette University School of Law in Oregon, explaining that majoritarianism is a form of government where a president has a majority mandate. “They wanted to balance with federalism. They wanted to aggregate populism with federal concerns. It was, 'We want a president who is not just popular in a particular region, but popular across the nation.'”

 

In developing the Electoral College, Alexander Hamilton and James Madison also struck a compromise between the larger and smaller states, who wanted equal representation, as well as between northern and southern states, which were willing to remain their own nation/states in essence, rather than join the fledging United States of American.

 

The settlement between large and smaller states is one we continue to live with today – it's the reason each state has two senators, equally. Similarly, under the Electoral College, each state receives the same number of electoral votes as senators – so each receives two, as an equalizer – as well as the number of seats in the House of Representatives – the compromise with larger states to recognize their population. No state can have fewer than three electoral votes. “The result of this system is that in this election (2016) the state of Wyoming cast about 210,000 votes, and thus each elector represented about 70,000 votes, while in California approximately 9.7 million votes were cast for 54 votes, thus representing 179,000 votes per electorate,” Schulman explained. “Obviously this creates an unfair advantage to voters in the small states whose votes actually count more than those people living in medium and large states.”

 

In 1787, the population of the southern states were filled with plantation owners who were slaveowners, who needed to be appeased in order to create “a more perfect union,” via the Electoral College. 

 

“The founders felt they had to compromise with those they felt were an uninformed electorate – the amount of the population who did not even know who to vote for, the people who were completely ignorant – and the compromise with southern states to not count black men as a whole man,” said Bernie Porn of EPIC-MRA. “They counted black males as three-fifths of a man, and women not at all.”

 

The Three-Fifths Compromise was reached among state delegates at the Constitutional Convention to determine whether, and if so, how, to count slaves in determining a state's total population for determining the number of seats in the House of Representatives as well as for taxing purposes. The compromise was to count three of every five slaves. Following the Civil War, the Fourteenth Amendment repealed the compromise in 1868.

 

The takeaway on the Electoral College is that the founders of this country created it to help ensure that states with a variety of interests and preferences would be willing to come together and fuse as a united federal government.

 

Today, when federalism surpasses regionalism, with the results of the Electoral College failing to match the popular vote twice in less than two decades, there have been rising calls to either abolish the Electoral College or replace it. In March of this year, Sen. Elizabeth Warren (D-Massachusetts) argued that Americans should elect their president by a national popular vote.

 

“We need to make sure that every vote counts,” Warren said during a CNN town hall. Since then, she has said, “I believe we need a constitutional amendment that protects the right to vote for every American citizen and makes sure that vote gets counted. We need to put some federal muscle behind that,” noting that most presidential candidates never campaign in Mississippi or her home state of Massachusetts during a general election because they are not battleground states in the Electoral College. 

 

There are many other states across the country, big and small, that never see candidates, either because they are solidly Democrat or Republican, or political consultants have determined they are not significant in Electoral College votes.

 

Other Democratic candidates for president have begun to echo Warren, including Sen. Kamala Harris (D-CA), who said she is “open to the discussion” of doing away with the Electoral College, telling late night host Jimmy Kimmel, "There's no question that the popular vote has been diminished in terms of making the final decision about who's the president of the United States and we need to deal with that." 

 

Bernie Sanders, Independent Senator from Vermont running again in 2020 as a Democrat for president, has been calling for its abolishment since December 2016, following the 2016 presidential election, where Donald Trump prevailed over Hillary Clinton, despite her having won over three million more popular votes.  Other presidential candidates who have expressed openness to abolishing the Electoral College are Sen. Kirsten Gillibrand (D-NY), former Rep. Beto O'Rourke (D-TX), Pete Buttigieg, the Democratic mayor from South Bend, Indiana, and former Housing Secretary Julian Castro. 

 

In early April, Gillibrand was among several leading Democratic senators who introduced a Constitutional amendment to abolish the Electoral College. Sen. Brian Schatz (D-Hawaii),  introduced the Constitutional amendment on April 3, which would provide for the direct election of the president and vice president. Under the proposed amendment, Presidential and Vice Presidential candidates would still run as a pair on a ballot slip. The pair that receives the most popular votes would win. To take effect, the amendment would first need a two-thirds approval vote in the Senate and House of Representatives and ratification by three-fourths of the states. It is unlikely to pass, at least in time for the 2020 election.

 

Sen. Dianne Feinstein (D-CA), Sen. Dick Durbin (D-IL) and Gillibrand noted that they all supported it because the Electoral College system deprives American’s of a “one person, one vote” election, and a democratic electoral system should not make one person's vote count for more than another's.

 

“Every four years, Californians are under-represented when they cast ballots for president of the United States because of the Electoral College,” Feinstein said. “Each elector stands for 712,000 California residents, but a small state like Wyoming gets the same vote for only 195,000 residents. That’s simply not fair and needs to be fixed, particularly given that twice in the last two decades the popular victor hasn’t become president. The best solution is to eliminate the Electoral College.”

 

Dulio of Oakland University said that Constitutional amendments to change or alter the Electoral College “go around every four years. There might be a little more than usual this time. But I think the prospects for changing it are between slim and none.”

 

He said the “efforts to change it are because there enough people who just don't like it. The Electoral College is a strange system – to say the least – and every four years, a lot of people who don't pay a lot of attention to politics say, 'What the heck? What do you mean I don't get to pick the president?' But the Electoral College was put in place for a reason.”

 

Dulio noted that today, Americans have a million different things to do rather than study the Electoral College. “It's foreign to us, because it's the only political race we do that way – it's a little goofy,” he said.

 

Another option is to work around the Electoral College – and it is a bill that is increasingly gaining traction. An organization called National Popular Vote interstate compact, is considered less radical than changing the Constitution, but the goal is the same – to make every individual person's vote count. 

 

The compact works by having individual states passing laws to join that would pledge to deliver all of their electoral votes to the candidate who wins the national popular vote, regardless of the tally of their individual state. Once enough states pass the compact and reach 270 electoral votes – the number needed to win a presidential election – then the presidency would go to the candidate who receives the most popular votes in all 50 states and the District of Columbia. 

 

“The effort to retool how we apportion Electoral College votes, from winner-take-all to congressional apportionment, I'm not much of a fan of that. It just raises the stakes with gerrymandering,” asserted political science Professor Marjorie Sarbaugh-Thompson of Wayne State University. “Whoever gets to draw the maps will still control who gets the Electoral College votes. I think it's less democratic to have it divided up by Congressional districts. Other than in 2016, Michigan gave its Electoral College votes to Democratic candidates. 2016 was an outlier, because a ton of people stayed home, and the Green and Libertarian candidates did extremely well – so well, in fact that the Green candidate (Jill Stein) got more presidential votes (about 50,000) than the margin that Trump won by (about 10,000 votes) – it was less than five percent, and that's unusual. In 2016, third parties were spoilers, a lot of people didn't like Hillary Clinton, the African American vote in Detroit was historically low, and the city didn't work to turn it out. A lot of people thought Trump couldn't win, so they did a protest vote – it was the perfect storm.

 

“But this National Popular Vote is just ghastly,” Sarbaugh-Thompson continued. “It just makes a bad situation worse.”

 

Joshua Tucker, professor of politics at New York University, isn't in complete agreement with  Sarbaugh-Thompson. “The idea that we're going to change the Constitution is very remote, because you need three-quarters to pass, and need a quarter of the small states to get there,” Tucker said. 

 

The other structural impediment is the state of political polarization the country is in.

 

“If we had been living in a world where Hillary Clinton had won the Electoral College but lost the popular vote, then both parties would have felt they had lost an election,” Tucker said. In 2000, Al Gore narrowly won the popular vote but lost the election when George W. Bush prevailed in the Electoral College after a recount in Florida and decision by the U.S. Supreme Court. 

 

Matthew Dowd, ABC News chief political analyst and native Michigander (he graduated from Bloomfield Hills Lahser High School) worked as a political strategist on George W. Bush's 2000 and 2004 campaigns, among others. “The divergence between Electoral College results and popular votes are problematic for governing. It raises questions about legitimacy,” he said, while acknowledging that he didn't think a Constitutional amendment could get passed. 

 

Dowd said that when he was on Bush's 2000 campaign, “I wrote a memo that we had to get the popular vote in the next election for legitimacy's sake. Part of the strategy was to win the popular vote. We won both the popular vote and Electoral College in 2004, and it was all about legitimacy.”

 

Dowd said he is a fan of the National Popular Vote compact, as well a form of expanding the number of electorates to the Electoral College that derives from expanding congressional districts – which is actually a requirement in the Constitution.

 

“We haven't expanded Congressional seats since 1911, when each Congressional seat had about 200,000 people. Today, they average about 765,000 people. When Congress was created, there were 37,000 people in each (House of Representative) district,” he explained.

 

The Apportionment Act of 1911 was passed by Congress in August 1911 to set the number of congressional seats in the House of Representatives at 435, regardless of the growth of the population, according to each U.S. Census. Article One, Section 2, Clause 3 of the U.S. Constitution required that seats in the United States House of Representatives be apportioned among the various states according to the population disclosed by the most recent decennial census, with the first number of members at 105 in 1792. 

 

According to the U.S. Department of Commerce Economics and Statistics Administration U.S. Census Bureau, as a result, the average size of a congressional district has tripled in size over the years, from 210,328 people based on the 1910 census, to 710,767, according to the 2010 census. There is also a wide disparity among congressional districts, they noted, with Montana having the largest district, with 994,416 people, and Rhode Island, the smallest, with 527,624 people.

 

Dowd said increasing the size of the House of Representatives – which would then increase the size of the Electoral College, “would bring us much further along to where the Electoral College would have much less weight and put much more weight on the popular vote.”

 

A proportionate increase would permit the number of members of congress to increase from 435 to 560 or 570 members.

 

NYU's Professor Tucker agrees.

 

“The more representatives you add the more you dilute the disproportionality,” he said, pointing out that every state begins with two senators. 

 

Currently, Wyoming has three – one representative and two senators. Tucker said they may still have three, or perhaps four. But rather than 54 total for California, as they currently have, they would have 78 total. It is uncertain how many Michigan, currently with 16 electoral votes and representatives (two senators and 14 congressional seats), would have, as in the 2020 census, it is anticipated the state will continue its streak of losing a House seat each decade as the state continues to lose population to southern and western states.

 

Tucker said there are questions about how well the House of Representatives will function if it is one-third bigger, but others feel the question is moot.

 

Wayne State's Sarbaugh-Thompson, who agrees this is a preferable way to make the popular vote and Electoral College vote reflective of each other, said, “If you look at parliamentary systems, this is how they operate. Take Great Britain, which is much smaller than us – if we let the House of Representatives get to 630 members, it would be very similar to the British House of Commons. 

 

“Four hundred thirty-five seems chiseled in stone, but only because we've gotten used to it,” she noted. “Keeping it at a set size is clearly not what the framers had in mind – both for the House of Representatives and the Electoral College. The Constitution talks about constantly having the House of Representatives growing, which it did until 1911.”

 

Sarbaugh-Thompson said it would more successfully address the lack of representativeness in both Congress and the Electoral College. “Two senators (from each state) then become less important if the House of Representatives gets bigger,” she said of the proposal, called the Wyoming Rule. “In the art of the possible, if someone had thought to do this when President Obama had both houses (of Congress), it could have been passed, because it only takes a simple majority vote.

 

“Why isn't anyone talking about this more? It makes complete sense,” Sarbaugh-Thompson said.

 

Tucker noted that before 2016, National Popular Vote was actually not as partisan and divisive a proposal as it has become since the 2016 election, with currently only Democrats supporting it.

 

“Prior to 2015, there was support for National Popular Vote by lots of Republicans and Republican states,” Tucker said. “Immediately after the 2016 election, any critiques of the Electoral College became critiques of Trump's legitimacy. 

 

“It didn't have to be that way. Prior to 2016, National Popular Vote had been picking up steam because it's hard to go against one vote, one person. But now, it's totally become politicized – it is now completely partisan. For it to pass, it has to come out of states that are Democrat.”

 

“We started doing research in 2005, and introduced a book and a bill in 2006, and then started lobbying states, beginning in Maryland, about a year later,” said Dr. John Koza, CEO of National Popular Vote, Inc. “This year, we have had three states that have acted already – Colorado, Delaware and New Mexico.”

 

Currently, the National Popular Vote bill has been enacted by 14 jurisdictions which possess 189 electoral votes, including five small states – Rhode Island, Vermont, Hawaii, Delaware, and Washington D.C. – six medium-size states – Colorado, Connecticut, Maryland, New Mexico, Maine and Washington – and four large states, New York, New Jersey, Illinois and California. Prior to 2016, the bill passed in at least one chamber of eight more states that have a total of 72 more electoral votes.

 

All of the states that currently have passed the National Popular Vote bill are majority Democrat states. 

 

The irony, Koza said, is that during Obama's administrations, “It was fairly difficult to get Democrats to vote for this. We couldn't get it through because enough Democrats bought into the blue wall theory” – referring to a theory used by political scientists between 1992 and 2012 which referred to 18 states (including Michigan) as well as Washington D.C. that the Democratic Party consistently won in presidential elections, establishing a significant advantage in the Electoral College. George W. Bush, the only Republican to win the presidency during this period, was able to narrowly win in the Electoral College only by winning states outside the blue wall.

 

“That was part of why Clinton lost,” Koza continued. “She thought she had 242 electoral votes in the bag. But many were hairline blue, and 2016 went the other way. Now, after 2016, Republicans think the Electoral College is good. It's all about very short-term political memories. Whoever won the last election thinks they'll be in power forever.”

 

Koza said that with the National Popular Vote compact, “we're not trying to abolish the Electoral College – we're trying to change the way states choose their members of the Electoral College. Under the Constitution, the states choose the members of the Electoral College.”

 

How each state chooses their electorates for the Electoral College is not in the Constitution, but in state law. National Popular Vote is trying to change to a winner-takes-all law, from whoever receives the most votes in any one state to the presidential candidate who wins the most votes in all 50 states and Washington D.C.

 

Currently, Michigan has 16 electoral votes, with 16 electorates, to reflect the number of senators and representatives in Congress. There are a total of 538 electorates nationally. Each party – both Republicans and Democrats – choose electors per district at their annual state party convention to represent the district at the Electoral College, whose meeting takes place on the first Monday after the second Wednesday in December after the presidential election. While voters think they're voting for a candidate for president, they're actually choosing electors when they vote for president and vice president. According to the National Archives and Records Administration, electors meet in their own states, casting their vote for president and vice president on separate ballots. Each state's electoral votes are then counted in a joint session of Congress on January 6th of the year following the meeting of the electors.

 

“The Vice President, as President of the Senate, presides over the count and announces the results of the vote. The President of the Senate then declares which persons, if any, have been elected President and Vice President of the United States,” according to the National Archives and Records Administration.

 

Besides that individual votes would more directly count with the National Popular Vote compact, another rationality behind changing towards it and away from the Electoral College is in the current method of campaigning, a majority of the country is left out of the conversation as the emphasis is focused on a few “battleground” states – states which can potentially turn one way or another in the Electoral College.

 

“In 2020, under the Electoral College vote model, candidates will basically spend 90 percent of their money, time and field operations in five to six states, and will totally ignore all of the other states,” pointed out ABC News' Matthew Dowd. “It's very disturbing. Where campaigns no longer compete – 44, 45 states are left out. That's a huge swath of Democrat and Republican states, large and small, that are left out of the conversation. Only letting five or six states decide (the election) isn't good for our country – and it raises a question of legitimacy. Is this the president representing all the people? The Trump campaign has admitted he can't win the popular vote in 2020. If you expanded the presidential race to more akin to the popular vote model, and open it up to many more states, you have to operate in all 50 states. Then every vote matters – rural, city, exurban, suburban. You have to campaign in areas where currently Democrats and Republicans don't go. Democrats would have to campaign in Texas and Republicans would have to go to New York. Michigan would still be important – it would just expand the map.”

 

Dowd said it would not necessarily be more expensive for campaigns to campaign this way.

 

“They're going to spend what they raise,” said Dowd, the veteran of several campaigns. “They would spend it more nationally, rather than in five or six states. They're not driven by a budget. They spend what they have.

 

“It would be better to move toward a popular vote.”

 

David Dulio concurs. “Trump is coming to Michigan because electoral votes are important. We're going to see a steady stream of candidates for the next 18 months talking about issues important to Michigan, and that's a good thing. 

 

“But if it was changed, candidates would change their strategy, and they would go where the votes are versus where the electoral votes are – so instead of Iowa, Michigan and Ohio, the I-95 corridor from Washington DC to New York City – places with a lot of people – would become a lot more important, and places like Nebraska, Kansas, Missouri, with less density, become less important. What keeps Ohio important is that it has a lot of electoral votes. If it disappears, then swing voters in Ohio are less important, swing voters nationwide are more important. You can make a case that this is appropriate – it's just different.”

 

A concern about changing the system away from the Electoral College is that rural voters would be ignored as candidates focus on large cities. Koza said that wouldn't happen – the percentage of rural and urban voters is actually equal, with 16 percent of the country living in each location. 

 

Two-thirds of the country lives in suburbia, Koza said – “and those people vote 50/50” Democrat and Republican. “Why would they ignore a majority of the country? The country as a whole is equally divided, so it can't be said that Los Angeles and New York City run the country.”

 

But other scholars disagree. 

 

John Chamberlin, professor emeritus of political science at University of Michigan, said that while he's not a particular fan of the Electoral College, “It was designed for a time and for purposes that seem to me to no longer have much of a hold on who we are as a nation...but I'd like to see it replaced with something that is likely to be seen as legitimate and have solid grounding. Plurality voting isn't a good choice in my view. It doesn't perform well when multiple candidates run. This often leads to the plurality winner getting less than 50 percent of the vote,” he said. “In that case it is possible that one of the losing candidates would be preferred to the plurality winner in a head-to-head comparison. It seems undemocratic to elect someone when another candidate in the race would defeat the plurality winner in a head-to-head race...A system that is probably better than plurality is ranked choice voting.”

 

Williams of Willamette University Law School sees many similar holes. 

 

“National Popular Vote would just spawn nightmare litigation and create Supreme Court litigation that would make Bush v. Gore look like nothing,” he predicted. “There would be no legitimate national president.

 

“The compact would root out federalism from our presidential election process – they want a purely majority rule. But there's no federal election. They're all done by state officials who tabulate votes. How do you conduct a recount if it's National Popular Vote?” Williams asked. “There's no national agency. It would be left up to Michigan. What if Michigan says yes to a recount – but California says no. There's be no trust in the legitimacy of the election and the recount, and it would end up in litigation.”

 

Williams succinctly points out that recounts are an example of federalism. “If you had a Constitutional amendment abolishing the Electoral College, then the federal government could set up a federal election system.”

 

Further, Williams drew attention to the fact that there have been elections – as recently as 2016 – where no candidate actually received the majority of the popular vote, but has received plurality.

 

“Hillary Clinton received 48 percent of the vote; Donald Trump received 46 percent. Neither received a majority. If we modeled our system after France, there would be a runoff without third party candidates – between just the two of them,” Williams said. “The likelihood of this happening? Zero.”

 

Looking ahead to 2020, it's unlikely there will be a change in our electoral system. Farther out? It's impossible to prognosticate. If the Electoral College vote and popular vote are once again at odds, all bets are off.

 

“With George W. Bush, it was the first time it happened in anyone's lifetime, and it seemed completely idiosyncratic,” NYU's Joshua Tucker said. “But the Trump election – where it was millions of votes – it was the second time in 20 years, and it could happen again in 2020. It was the same party, which is also getting a boost in the Senate. We have to worry about issues of legitimacy and people on the left questioning and feeling disenfranchised.

 

“But the likelihood of anything happening is very low.” 

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