• By Lisa Brody

The movement to skip the electoral college


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.