Election Integrity: The Electoral College by Janet Maker

Aug 31, 2017 by

Election Integrity: The Electoral College by Janet Maker

I first became interested in election integrity after the 2000 presidential election.  Not only had the Supreme Court arbitrarily stopped the Florida recount and handed the election to Bush, but I had become aware of other things that didn’t smell right, such as faulty voting equipment and voter suppression that made the vote count seem closer than it really was.  I joined the League of Women Voters’ committee for election integrity.  We analyzed the issues, put together a presentation, and gave it to local groups.  We hoped that the League would push the issue nationally, but that didn’t happen.

Sixteen years later, not much had changed: The election of Trump was surrounded by the same election integrity issues, although some of the techniques had grown more sophisticated.  It had been clear to many people since at least 2000 that when elections are close Republicans can be expected to win.  Although Republicans would lose the popular vote because they are in the minority (44% vs. 48% of registered voters in 2016 according to the Pew Research Center), they could win the Electoral College by flipping the vote in a few key precincts in the same few swing states.  There was convincing evidence that it had worked for Bush in 2000 (although he needed help from the Supreme Court) and in 2004.  It didn’t work in 2008 or 2012 because Obama was too popular, but it worked for Trump in 2016.  Jill Stein understood what had happened, and she tried to spearhead a recount, but Democrats and Republicans both shut her down.  Clinton conceded the election in 2016 just as Gore had done in 2000.

One would have thought that Democrats would have put a stop to this in the 16 years since Bush, but Democrats seem strangely uninterested in the issue.  However, that is not our subject.  What I want to do is explain how elections can be stolen at this point in U.S. history.  None of this is my discovery; all of this information has been readily available and widely known for many years.  We have all heard about hackable voting equipment, gerrymandering, and many types of voter suppression. However, I have not seen the major techniques of election corruption put together in one place so that readers can get the full picture. I want to do that, and I will also offer suggestions about how the problems could be corrected should there ever be the political will to do so.

We will define election integrity as a system in which each citizen has an equal vote and an equal opportunity to cast that vote as he or she wishes.  A government is democratic only if elections are fair.  The corruption of elections and of democracy occurs when some voters are prevented from voting or when some votes count more than others. The things that corrupt election integrity can be seen as falling into three categories: (1) undemocratic practices that are legal and built into the system; (2) voter suppression; and (3) rigged voting technologies and processes

Since a thorough explanation of all those topics is a very big project, I will break it down into a series of blogs that will examine each of the major issues affecting election integrity.  We will start with the first category: undemocratic practices, and from that category we will select our first issue: the Electoral College.

The Electoral College was created as a compromise between one group of Founding Fathers (the Anti-Federalists) who thought that the president ought to be elected by a direct vote by the people and the other group (the Federalists), who did not think that the masses had the education and the temperament to be trusted with such an important decision.[*]  Although it appears ironic in view of the 2016 election, Federalist Alexander Hamilton argued that the Electoral College “affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”  So, as a result, we vote for electors and they vote for president.  Each state chooses a total number of electors that equals that state’s total of senators and representatives. There are 538 electors in total, corresponding to the 435 representatives and 100 senators in Congress, plus three electors for the District of Columbia.

Under this system, how much your vote will count depends on where you live.  Your vote only counts toward the number of electoral votes that your state has. Alaska, Delaware, Montana, both Dakotas, Vermont, and Wyoming have three each.  California has 55.  But even if you live in a big state, your vote is still unlikely to count, because we also have a two-party, winner-take-all system.  If your state votes Republican, your vote for a Democrat will not count, and vice versa..  So, if you lived in Texas in 2016, all the electoral votes went to Trump, and if you voted for Hillary, your vote was completely wasted.  On the other hand, if you lived in New York, your vote was also wasted.  Since New York always votes Democratic, Hillary got all the electoral votes and did not need your help.[†]  The only states in which your vote could have actually counted were the “swing states,” which are the ones that are big enough to have substantial electoral votes and which do not always vote for the same party.  If you live in Florida, Ohio, Pennsylvania, Michigan, Virginia, North Carolina, Colorado, Iowa, Nevada, New Hampshire, or Wisconsin, your vote can possibly make a difference. This is the reason that candidates campaign obsessively in those states and ignore the others.  It was reported that Donald Trump and Hillary Clinton made more than 90% of their campaign stops in just 11 states, and of those stops, about two-thirds took place in the four states with the most electoral votes — Florida, Pennsylvania, Ohio, and North Carolina.  This is also the reason that most of the electoral fraud in presidential elections seems to occur in those states.

If there were no Electoral College, Democrats would have won all the elections in the 21st century because there are more registered Democrats than registered Republicans.  Gore won the popular vote in 2000.  Although Bush won in 2004, his victory has been widely attributed to a combination of election fraud and the fact that he was the incumbent. And Bush’s margin of victory in the popular vote was the smallest ever for an incumbent president.  If Gore had been the incumbent, we can assume that he would have won re-election in 2004.  Obama won both the popular and the electoral votes in 2008 and 2012, and Clinton won the popular vote in 2016.  So, since the Electoral College works to the advantage of Republicans at this point in history, we can consider it very unlikely that Republicans would support abolishing it.   Abolishing it would require a constitutional amendment, which would mean a two-thirds vote in both the House and the Senate and the ratification by three-fourths (38) of the 50 states.  Efforts to repeal the Electoral College in the past (1934, 1966, 1979) have always failed even though Gallup polling in 1948 showed that 56% of voters favored repeal.  This number rose to 58% in 1967, and to 80% in 1968.  After the undemocratic election results in 2000 and 2016, I imagine that most American voters favor repeal now, but the chances of repeal actually happening are slim to none.

However, there are some other options.  It has been suggested that one way to make the Electoral college more democratic would be to require each state’s electors to vote in proportion to the popular vote rather than winner-take-all.  Under the winner-take-all system, all the state’s electors are awarded to the candidate with the most votes in the state.  This has the advantage of maximizing that state’s influence in the national election.  However, two states, Maine since 1972 and Nebraska since 1996, use a different system, called the “congressional district method.”  They choose one elector for each congressional district, and that elector must vote according to that district’s popular vote.  In addition, they assign another two statewide electors who must vote according to the statewide vote.  On the surface, this system sounds as though it would produce a fairer result.  In fact, the results of this system would be even less fair, because so many congressional districts have been gerrymandered. Because Republicans controlled most state legislatures after the 2011 census, they were in charge of redrawing most of the congressional districts, and they drew them to favor Republicans.  We will explain gerrymandering more thoroughly in another blog, but for now suffice it to say that if all electors had been awarded based on the congressional district method, Mitt Romney would have won the election in 2012 even though Obama won 5 million more votes than Romney.

A second option would be to use a whole number proportional system.  This means that, instead of winner-take-all, the state would award electors to candidates based on the proportion of the statewide popular vote that each candidate won.  So, for example, in Michigan in 2016, Donald Trump won by about 11,000 votes.  Michigan had 16 electoral votes, and all of them went to Trump.  If there had been a proportional system, 47.5% of the electoral votes would have gone to Trump, 42.27% to Clinton, and 5.23% to third parties.  Trump and Clinton would have gotten approximately 7 electoral votes each: quite a different outcome.  If we applied this method to all the states, Hillary Clinton would have gotten 268 electoral votes, Donald Trump would have gotten 266, and the third parties combined would have gotten four.  Since nobody would have gotten the 270 electoral votes needed to win, the election would have gone to the House of Representatives, which had a Republican majority.  As Republicans, they could hardly have been expected to elect Clinton, but if they elected Trump, they would have chosen someone who had lost both the popular and the electoral votes.  Awkward.

The good thing about these alternative systems is that citizens would have more incentive to vote.  For example, if you are a Republican voting in California, your vote is wasted since California votes for Democrats.  However, with a proportional distribution, your vote would be more likely to count, since all 55 electoral votes wouldn’t automatically go to the Democrat.  This also means that candidates would have reason to campaign in all 50 states instead of focusing exclusively on the swing states.

However, as we have seen, the proportional systems have substantial drawbacks.  A third option appears more fair and more democratic: The National Popular Vote Interstate Compact.   Under this plan, each state’s electoral votes would be given to the winner of the national popular vote.  So, since Clinton won nationally, all the states, even those like Alabama which vote solidly Republican, would have had to pledge its electors to her.  This method would leave the Electoral College in place, so no constitutional amendment would be required, and elections would still be controlled by the states.  But every vote would be equal, and every voter would matter in every state; we would achieve a national popular vote.

The National Popular Vote bill has been enacted into law in 11 states which have 165 electoral votes (CA, DC, HI, IL, MA, MD, NJ, NY, RI, VT, WA).  However, the bill won’t take effect in any of them until it is enacted by states possessing an additional 105 electoral votes, for a total of 270. (a majority of the total 538 electoral votes).

The constitutionality of the National Popular Vote Interstate Compact has been questioned because Article I of the Constitution says that Congress must approve compacts between states. On the other hand, Article II reserves to the states the exclusive power to bind their electors. In the end, the constitutionality might have to be decided by the Supreme Court.

There is also a political problem.  All the states that have signed on so far have been heavily Democratic.  The red states seem to be resistant, probably because the Electoral College helps Republicans win elections.  And the swing states, which receive a huge influx of media and money every four years, have every incentive to leave the old system in place.

Nevertheless, for those who believe in democracy, the effort to pass the National Popular Vote seems very worthwhile.  Any readers who would like to get involved can start by contacting www.NationalPopularVote.com and/or by contacting your state legislators.


[*] The Electoral College was also an accommodation to the institution of slavery. If the United States had direct elections, the southern states would have been at a disadvantage since their number of voters would have been smaller because slaves could not vote. However, the compromise that counted the slaves as three-fifths of a person when determining the number of electors put the South on a more equal footing with the North.

[†]There is one way to not waste your vote, and that is to vote for a third party.  I don’t live in a swing state, so I am free to vote my conscience.  In the last two presidential elections, my conscience directed me to vote for Jill Stein, the Green party candidate.  My vote was not wasted; it sent a message about the way I think the United States should be governed.  To me, a vote for Hillary would have been an unprincipled vote that sent a message of compromise, of settling for the lesser evil.  Hillary voters voted for the status quo; I voted for change.

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  1. toto

    The National Popular Vote bill in 2017 has passed in the New Mexico Senate and Oregon House.
    It was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
    Since 2006, the bill has passed 35 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Connecticut (7), Delaware (3), The District of Columbia, Maine (4), Michigan (16), Nevada (6), North Carolina (15), Oklahoma (7), and Oregon (7), and both houses in California, Colorado (9), Hawaii, Illinois, New Jersey, Maryland, Massachusetts, New Mexico (5), New York, Rhode Island, Vermont, and Washington.
    The bill has been enacted by the District of Columbia (3), Hawaii (4), Illinois (19), New Jersey (14), Maryland (11), California (55), Massachusetts (10), New York (29), Vermont (3), Rhode Island (4), and Washington (13). These 11 jurisdictions have 165 electoral votes – 61% of the 270 necessary to bring the law into effect.

  2. toto

    The U.S. Supreme Court has ruled that congressional consent is only necessary for interstate compacts that ‘encroach upon or interfere with the just supremacy of the United States [U.S. Steel Corporation v. Multistate Tax Commission, 1978].’ Because the choice of method of appointing presidential Electors is an “exclusive” and “plenary” state power, there is no encroachment on federal authority.
    Thus, under established compact jurisprudence, congressional consent would not be necessary for the National Popular Vote compact to become effective.

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