The Electoral College and All Its Flaws

Written By:  Arnie J Olsen

There has always been some opposition to the use of the Electoral College to select the President of the United States, but since 2016, an election in which Donald Trump lost the popular vote by nearly 3 million votes, yet won the Presidency via the Electoral College, the opposition has grown to a loud roar, albeit mainly from Democrats.  Now, the 2016 election was not the first time we have wound up with a President who actually lost the popular vote.  All of us remember the same outcome in 2000, with George Bush winning the election over Al Gore, though the popular vote margin was significantly smaller, but in reality, 2016 was the fifth time this has occurred in our history.

I think it is safe to say that the primary reason for the outcry now is simply the divisiveness of the current President, but more interesting in my mind is the absolute lack of knowledge when it comes to the original purpose and intent of the Electoral College, as well as the wide ranging views on why it is either essential to our democracy or the biggest detriment to it that one can imagine.  Put another way, I am stunned by the sheer amount of total nonsense I hear people spewing about this issue, and not just from the usual suspects you see posting on Facebook or Twitter, but even from the so-called experts you see on television or read in major newspapers that really should know better (and I suspect they do).

Purely Partisan

Now, if your position is simply partisan, meaning you are currently a Democrat that wants to see it abolished because statistically speaking, there seems to be more Democratic voters in the country than Republican voters, or you are a Republican and you love the fact that in the past 19 years, we have had two Republican presidents elected while losing the national popular vote, I get it, but you need to simply admit those are your motives, and stop trying to justify your position with a bunch of made up crap either for or against the Electoral College.  Just admit that you want to either keep the system as is or scrap it so that your party has an electoral advantage over the “enemy”, and we can stop seeing random posts and memes that are mostly nonsensical.  On the other hand, if you are actually interested in the history of the Electoral College, and a legitimate discussion about why it should either be kept or eliminated, we can do that, and I suggest you read on.

Originalism – Adhering to the intent of (and sticking to what is written in) the Constitution

The Electoral College as we know it today did not really exist, at least not in its current incarnation, back when the Constitution was ratified, and even then, it was subject to much debate, so for those of you who claim to be strict adherents to the Constitution, and therefore, strong proponents of the continued use of the Electoral College, just stop.  That argument is beyond flawed, and is clearly just a lazy way to justify your politicized opinion.  For starters, there were a variety of ways proposed to select the President, including some opinions at the time, that the Presidency should be a lifetime position.  Among the options discussed, there was one that proposed the President being elected by a vote of Congress.  There was one that suggested the President be elected by the Governors of the different states.  And, finally, there was the notion of having “electors” select the President, which is essentially what we ended up with.

Equally of interest is the reasoning behind this last choice, but it needs to be understood this had literally nothing to do with the idea I see some people throwing out these days about the United States being a Representative Democracy, or being a Republic, and blah, blah, blah.  That had nothing to do with the original concept.  In fact, the closest thing to reality that I see people suggesting today is that it was a means to insure that less populous states maintained a say in the Presidency.  That is “sort of” true, but I would venture a guess that most who use that as a current defense do not understand why that is also “sort of” not true.  Back at the time of our founding, you need to recall that different states had very very different laws and interests from one another.  This is important in understanding why states felt like a President being elected by states with very different interests could prove detrimental to their ow interests.  In particular, this was one of many things greatly influenced by the issue of slavery.

The more heavily populated northern states were opposed to the practice and the less populated southern states had their entire existence predicated on the continuation of the practice.  In their mind, a President elected mostly by the northern states would be harmful to their desire to maintain slavery as a widespread practice, and a direct popular vote would cripple their chances to influence the outcome of a Presidential election.  The reason was simple math.  Slaves were counted as 3/5 of a person, when it came to the census, which meant that southern slave states were considered to have a higher “population” when it came to calculating the allocation of representatives to their state than they really had in terms of actual voters (white, property owning men).  Remember, women did not have a vote at this time, and neither did the poor because most states required a man to be a landowner to have a vote.  If we used the Electoral College, and it was based on the number of “electors” allocated to state which was subsequently based on the number of Congressional representatives allocated to the state, land owning white men of slave states could maintain their influence in the outcome of the election.  It is simply untrue to say that intent had anything to do with protecting the interests of individual citizens, when it actually had everything to do with protecting the unique interests of slave states.

In addition, and much like other elements of the Constitution, it was originally implemented as a mechanism for the powerful maintaining their control, similar to the method for choosing Senators that was originally used…appointment by state legislatures, and not directly elected by the people.  While we did not get to directly elect Senators until the 17^th Amendment was passed in 1912, it still took until 1820 before the majority of the states did not leave the choice for President entirely in the hands of the state legislatures.  Prior to that time, the state legislature of most states chose the electors for their state, and those electors were the ones to cast their votes for the Presidency with no input from the people of the state.  The widely held view was that the legislatures and thereby the electors were more informed and educated, and would make the “proper” choice for President, and the general public could not be trusted with such a task.  It took all the way until 1836 before this practice was pretty much eliminated in all states.

By 1836, we had pretty much entirely transitioned to the more familiar winner take all method we are all familiar with today.  South Carolina was the lone holdout at this point, and continued to have the state legislature choose electors (and direct their vote) with no input from its citizens until after the Civil War.  This change in the other states, though, was for partisan reasons as well, not some altruistic methodology that saw importance in the people actually having a true say in the outcome.  States began to figure out, that in order to maximize their impact in favor of their generally preferred candidate, they needed to “pool” their allocated electoral votes and cast them all for their preferred candidate.  To do anything else, when other states were doing that, would reduce their influence.  It actually ended up taking all the way until 1872 before every state held a popular vote for President including all eligible voters at the time, and then in 1876, Colorado (a newer state) became the last state to let the state legislature choose electors (their popular vote just served as guidance for the legislature’s decision).

All in all, I think based on this history, we can just forget about the current justification for the current system being that we need to stick with what the founding fathers intended when they ratified the Constitution, since history pretty clearly shows, the current system some are defending is nothing like the original practices used, and already defies the founders intent.

Smaller States Will Not Have Influence, Big Cities Will Decide Who Becomes President, and Democrats Will Always Win

With that out of the way, let’s look at some of the other reasons given for continuing to use the Electoral College as it currently exists.  First among them is that people say that smaller, less populated states will not have a real say in the outcome of elections, and the President will always be chosen by the large population centers in New York and California.  On the surface, I guess I can understand why people are quick to jump on this idea, as it sounds logical.  The problem, though, is it is factually inaccurate.  Of the 13 states that have only 3 or 4 electoral votes, the smallest quarter of all states based on population, 6 went to Trump and 7 went to Clinton in 2016, so while it is largely Republican voters making this argument, there are more states in the “small” category that vote Democrat traditionally, and since it is nearly an equal split, there is no real statistical advantage to either party.  On the flip side, of the largest, most populous states (the top 13), 6 voted for Clinton and 7 voted for Trump, including 7 of the top 10.

We can also break this down another way when it comes to the large states (since all of the 13 smallest states only have a one electoral vote difference between any of them), and look at the 13 largest states represent 295 electoral votes combined, meaning that since only 270 are required to win, theoretically, you only need to focus on the 13 largest states and you can win.  In 2016, those 295 electoral votes were split between the parties (as they usually are) with 143 going to Clinton and 152 going to Trump.  All in all, since the 2000 election cycle, only 12 states overall have voted for each party at least once, and 6 of those are among the 13 largest, once again showing that candidates in the general election really only need to focus on this limited number of swing states because history shows that the vote totals in the remaining states are so consistent, there is little to no chance that they will be flipped.  In fact, you would have to go back to Reagan’s re-election bid of 1984 to find any sort of widespread flip, but that was an anomaly created by a true landslide victory.

Voters in Less Populated States Will Not Matter

This claim could not be further from the truth, and in fact it is the exact opposite of reality.  There are plenty of voters that are completely disenfranchised now, WITH the Electoral College, and specifically because of it.  We can look at this a couple of different ways.

One way is that the total population of those 12 states that have flipped at least once since 2000 is a little over 101 million people, meaning that less than one third of the total population has ultimately decided every election since 2000 as a result of the Electoral College, whereas you can make a strong case that the roughly 225 million or so people have no influence over the election at all because they live in states that have not flipped even once since 2000, and really are not likely to do so any time in the future.

Another way is to look at the total votes cast for the losing party in the 39 states (including the District of Columbia) that have not been flipped even once since 2000.  In 2016, there were 15.1 million votes cast for Clinton in states that have been won by Republicans in every election since 2000, and 18.3 million votes cast for Trump in states that have been won by Democrats in every election since 2000.  Combined, that represents 33.4 million votes, or roughly 26% of all votes cast, that literally do not matter at all.  I recognize an argument can be made that every election is different, and you never know how it will turn out, but of those 39 states that have not flipped even once since 2000 (including DC), only 6 had margins of victory of less than 10% in 2016, and only 4 had margins of victory of less than 5%, while 33 had a spread of greater than 10% and the majority were over 20 and even 30%.  In other words, the chances of other states being added to the list of 12 current swing states is remote, and at best, it might jump to 16 swing states.

What you can conclude from these numbers is that it is not specifically voters in less populated states that will not matter if the Electoral College were eliminated, but rather 26% of total voters, spread across states of all populations, from the largest (California and Texas) to the smallest (Wyoming and Vermont) that do not matter, and that it actually disenfranchises more Republican voters than Democratic voters.  Finally, when you extrapolate those numbers to the population as a whole, total citizens of those non-flip states account for approximately 70% of our population.

Voters in More Populated States Will Have Too Much Influence

Here we have another one of the popular claims made by people who say they are in favor of keeping the Electoral College exactly as is.  First, I think we can all agree that each electoral vote of the 538 total is equal in weight based on the fact that it simply takes 270 to win, and it does not matter where they come from.  Practically speaking, we know that with the exception of two states they are awarded based on the winner take all method we are familiar with, so they are awarded in blocks effectively, but that does not change the actual weight of each individual electoral vote as they are counted.  Here is the crazy part though, when you look at what each electoral vote represents, there is a dramatic difference from one to the other, and like everything else, it affects both parties to a significant degree.  In the least populous state, Wyoming, each one of their three electoral votes represents 191,240 citizens.  On the other end of the spectrum, we have Texas, where each one of their 38 electoral votes represents 755,377 citizens (in California, it is slightly less, with each electoral vote representing 723,215 citizens).  What that means is that a citizen of Wyoming has nearly 4 times the impact of a citizen of Texas when it comes to choosing the next President.

There are actually 12 states that maintain at least a 2 to 1 impact advantage over the largest states like Texas and California, and of them, 7 historically vote Democrat and 5 vote Republican.  Additionally, none have been flipped since at least 2000, and of the 12, only 2 had a margin of victory of less than 5% in 2016 (both won by Democrats), so the split between Democrat and Republican stats might shift slightly, but at most, it would be to go from 7 Democratic states and 5 Republican states among the 12 with at least a 2 to 1 advantage, to 7 Republican and 5 Democrat.  Once again, the point of this is to show that there is in fact a negative impact on the outcome of Presidential elections, or more specifically, to individual voters, by continuing to use the Electoral College, but it is the exact opposite of what proponents of keeping it have led you to believe.  People that live in the most populous states are harmed, not the other way around, because their votes simply do not carry the same weight as votes cast in small states.  This seems to be completely counter to the most basic founding principle of our country, where “all men are created equal”, because clearly, that is not even close to true when it comes to voting in Presidential elections.  In fact, while I am not an attorney, I have studied Constitutional Law, and I believe you could make a strong argument that the Electoral College violates the 14^th Amendment, that among other things extends equal protection of the laws to all citizens.

But Candidates Will Not Pay Any Attention to States They Cannot Win, and the Electoral College Forces Them to Campaign Everywhere

I know I risk sounding like a broken record, but once again, this is not true at all.  The Electoral College does impact how candidates choose to campaign, but in reality that really just means where they spend their money.  With the existence of 24 hour news channels that broadcast nearly every campaign appearance live and nationwide, the impact of actual presence in different locations has been minimized to its lowest levels in our history.  Every candidate has dozens of national reporters and TV personalities following them to every single stop and we all know what is said each time if you are not living in a bubble.  That’s not to say personal appearances do not carry weight with the voters of a state or city, but they have been minimized.  The bigger impact is from TV advertising and the billion plus that is spent on that each election cycle.  Those dollars are always limited to some extent, so they will be spent where a candidate has a chance of picking up electoral votes.  Now, if you do not live in a swing state, that may be a positive because you aren’t hammered constantly by a barrage of televised propaganda and lies like the rest of us, but it does show the disparity caused by the Electoral College.

There are two things to consider here when it comes to candidates paying attention to all states.  First, no one I hear talking about this issue ever talks about the primaries.  That is a fatal omission to any debate because, while it is true that a GOP candidate will spend little time and money campaigning in New York or California for the general election, and a Democrat candidate will pay lip service at best to Montana or Texas for the general election because they know how those states will vote, the primaries are a totally different story.  Basically, if a candidate wants to win their party’s nomination to even get to participate in the general election, they had better campaign in every state to at least some degree.  For example, if a Republican wants to win the nomination, they pretty much need to win California, and likewise for a Democrat in Texas.  Adding to this is that the primary season is far longer than the general election campaign that basically only lasts three months, meaning that there are far more primary campaign appearances in an election cycle than those specifically for the general election.

The other thing to consider is that with the Electoral College, and the demonstrably meaningless 4 million Republican votes in California, for example, there is no point in a Republican candidate wasting their time and money there.  On the other hand, if we were determining the outcome of the election based on the popular vote, you can rest assured that both candidates will fight for every vote, regardless of whether it is a red or blue state.

The Real Purpose of the Electoral College

Like many things in our country, the Electoral College has always been, and will always be, another mechanism for people in power holding onto that power.  I think the examples given in the preceding pages provide plenty of evidence of how this antiquated system of choosing our President literally does nothing that the powers that be have convinced half the country it does, and in fact it does the exact opposite.  It disenfranchises voters by the millions, it reduces the outcome of elections to a handful of swing states with the remainder not really influencing the outcome at all, it does not help or hurt one party over the other in any measurable way, and finally, as a fail-safe, it puts the actual voting power in the hands of 538 electors.  By fail-safe, I mean the scene we watched unfold during the Republican national convention when Trump faced a very real possibility of winning the primary battle and yet, not being given the party nomination because there was a considerable movement among electors that did not like the outcome of the primaries to go rogue and choose someone else.  If you don’t believe that was a real possibility, why else did John Kasich remain in the race for 6-9 months after he was effectively eliminated.  There is only one reason, and that is that he knew there was a chance he could still be chosen.  We can all debate whether there would have been rioting in the streets or not, but the reality is, that was a very real possibility.  It was also the reason why Trump hired Paul Manafort to begin with (Mueller report and Russian influence aside).  He has made a career out of securing electoral votes at the party convention.  As long as the Electoral College exists, the true power to choose the President of the United States does NOT rest with the people.

How Would Eliminating the Electoral College Benefit the Citizens of the United States?

First and foremost, I think the data above shows how much inequity there is in voting for the Presidency from one citizen to the next, and even one state to the next because of the Electoral College, and it effects BOTH parties nearly equally.  What’s ultimately harmed are the people of this country that do not have an equal say in the Presidency, and your impact is dictated by where you live, in spite of the office of the President theoretically representing all of us equally, regardless of where you live.  It’s clear that elimination of the Electoral College corrects all of that.

Elimination of the Electoral College does no harm to the intent or function of the Republic, because laws are still written by Congress, and the bicameral nature of Congress, with 2 Senators per state ensures that each state does have an equal say in the eventual passage of proposed laws, as well as Judicial and Executive appointments.  I am not saying this system is perfect given the makeup of the country today, but regardless, it is not affected by the elimination of the Electoral College.

Candidates will be forced to compete for every vote, regardless of where it comes from, and likewise, every legal voter will have far more incentive to vote.  We also know that any President is basically elected by less than 20% of the citizens in this country currently.  Of course, a number of those “non-votes” are because we require voters to be 18, and then subject them to other varying requirements in different places around the country, but nonetheless, a winning candidate is actually elected with less than 20% support of all citizens.  It is estimated that there are almost 250 million citizens in the United States over the age of 18, the biggest requirement for voting that eliminates a significant number of people.  There were less than 130 million ballots cast in 2016, so in very rough numbers, we only have a little over 50% of those eligible actually deciding who the next President will be.  Both sides always believe their views represent the majority, because no one wants to believe they are the outlier.  Well, we will never really know if we do not get more people voting, and knowing that EVERY vote counts no matter where you live would seem to be the greatest incentive possible for voters to take the time to do it.

I won’t go into all the details of each of these items here, but there are a number of other things that we SHOULD be doing to increase voter turnout, including:

• Implementing automatic voter registration once people turn 18, taking the control of this away from the states and the array of different laws each has regarding who gets to vote and how to register, not to mention, it is the simplest, yet most effective way to eliminate ineligible people voting (not that this is anywhere near the problem people make it out to be.
• Make voting easier, not more difficult, including using technology to allow for more early voting and faster voting for people that still choose to go to the polling places.
• Add more polling places so people have an easier time getting to them, especially those that don’t drive, or rely on public transportation.
• Recognize Election Day as the significant day that it is, either by making it a holiday, or something to that effect.
• Implement ranked voting where you vote for multiple candidates, in order of preference, so that third party candidates become a more viable option and a vote for a third party candidate does not realistically mean taking a vote away from your second choice that is most closely aligned to your views, and redistribute votes to your second choice in the event that no candidate receives a majority of the total votes.
• Get big dark money, corporate money and billionaire money OUT of elections. Return to the days where there was a hard limit on individual donations, set low enough that a typical middle class person can afford to donate the maximum, and force candidates to raise money from more, small donors nationwide.  Only individuals can donate.
• Provide for a certain level of federal election financial support (yes, using tax dollars) to ensure that all legitimate candidates have at least a minimum degree of money to work with equal to what other candidates are receiving.
• Set a maximum amount of money that may be spent on a campaign to eliminate the problem of candidates and their supporters effectively buying elections and making the candidacy of otherwise qualified candidates possible, as opposed to eliminating them on the basis of their wealth.
• Establish a “truth in advertising” requirement for campaign commercials and advertising and enforce it by penalizing candidates for putting out misinformation and lies by fining them money from their election fund.
• Eliminate candidate, or even party specific, 3^rd party advertising completely. If a third party wants to spend money on a campaign, limit them to only promoting a position on the issues, with no reference to candidates or parties.  Then let candidates themselves campaign on the issues and make the connection of that they support.  In other words, if third parties and special interests want to promote their position on an issue, go for it.  For example if a Libertarian group wants to promote “Right to Work” legislation, they can do it, just like a labor union can promote the benefits of organized labor, both educating voters on their position without tilting the playing field to a particular candidate, and then let candidates declare their support for one side of the issue or the other on their own.  Voters will be far more educated this way, and not make assumptions based on misinformation the way they do now.
• Shorten the primary season to 4-6 months and organize primaries into 4-6 regions, with one “Super Tuesday” for each region per month. This will greatly reduce the cost of campaigns, hold the interest of the voters, and allow for candidates to more efficiently spend their time within each region, meeting more voters and paying attention to every corner of the country.

Conclusion

In the end, the Electoral College is harmful to our democracy, harmful to both major parties and virtually eliminates the possibility of ever having a viable 3^rd Party candidate.  We need elections to be more free and fair, with a better educated voting population that actually turns out to vote.  And in the end, all of that will contribute greatly to reducing the divide in this country because we will all know that the candidate who ultimately wins the election and assumes the office of the President of the United States is there because they were the legitimate choice of the people.  That is not to say that everyone will be happy with the policy positions of the President, but I firmly believe, the outcome will be much easier for even the dissenters to accept if they know that the candidate was elected based on truth, facts and supported by the majority of the country.

Now, if I have convinced you that eliminating the Electoral College is in ALL of our best interests, there are two ways it can be accomplished.  Without changing the Constitution through the Amendment process, states representing a majority of the electoral votes out there can pass state laws to legally bind their electoral votes to the winner of the national popular vote.  There has already been significant progress on this front, but there is still a long way to go.  Calling, writing and ultimately forcing your own state legislatures to pursue this is the best thing you can do individually.  The other option would be a Constitutional Amendment that is really in the hands of Congress.  This seems like a much less likely scenario simply because the people in Congress are far too partisan to actually do what is in the best interests of the people if they think the current system is beneficial to their party, and realistically, it is hard to not think that keeping the Electoral College exactly as is does not benefit the GOP based on the outcomes of the 2000 and 2016 elections.  In addition, the parties would probably prefer that they only have to focus on flipping a few of the dozen swing states, rather than actually go out and compete for every vote nationally.

On the other hand, if I have not convinced you, then please at least stop spreading your bullshit reasons and just admit that you support keeping the Electoral College because you like winning elections when your candidate actually loses the election and you really have no interest in doing what is right for the country and ALL of the people in it.  There is literally no other logical reason for supporting the Electoral College and not a national popular vote to decide the Presidency.