THE ELECTORAL COLLEGE

Ivan Hoffman, B.A., J.D.

          The Electoral College was put in place during the negotiations over the Constitution.  The “college” is not actually a “college” but instead refers to a system.  Unlike other “colleges,” there are no home coming football game weekends with tailgate parties. 

          In its simplest form, the process refers to converting the popular vote for president into a vote by the Congress.   

How It Works 

          There is nothing in the Constitution that requires a popular vote for presidents or vice presidents.  Instead, under the provisions of Article II, Section 1 of the Constitution, each state is allocated a number of “electors” equal to the number of representatives of that state in the House of Representatives plus the 2 senators from each such state.  There are detailed provisions for what happens in the event there is a tie and in such instance, the House gets to vote on who is to be president with each state getting one vote.  If there is a tie for second place, the Senate gets to vote on who is to be vice-president. 

          The Twelfth Amendment made some clarifications to the above but the structure remains nearly the same.   

          The Twenty Third Amendment made the system applicable to the District of Columbia which was allocated a total of 3 electoral college votes. 

          Thus, there are 538 electoral college votes (435 total House representatives, plus 2 from the District of Columbia, plus 100 Senators plus 1 from the District of Columbia).  In order to be elected, a candidate needs to win 270 electoral college votes. 

          Each political party nominates those who will be their electors.  These are nearly all political appointments, generally based on the person’s dedication to the party, their contributions to the party and other political bases. 

          In sum, a presidential election amounts to a vote not directly for the candidate but instead is a vote for the electors chosen by each political party to represent the interests of that particular candidate of that party.  Each elector votes for the candidate determined by the rules of the respective states and separately for the candidate for vice-president.  All states with the exception of Maine and Nebraska have a “winner take all” set of rules whereby the winner of the popular vote gets the entirety of that state’s electoral college votes.  In Maine and Nebraska, the winner of the overall popular vote receives two electors but the rest of the votes are allocated based on the results of the popular vote in each congressional district with the said winner getting the one elector represented by that district. The effect is that the total popular vote (other than Maine and Nebraska) is largely irrelevant since all a winner has to do is win by 1 vote to get all the state’s electoral votes.  All the other votes virtually do not count.  So it is possible that a candidate can win the popular vote but lose the election because the popular vote becomes the electoral college vote (see more below). 

          There is nothing in the Constitution or under federal law that mandates that the electors cast their votes according to the popular vote.  There are, however, some state laws that require that mandate but in those states that do not, most often the electors have pledged to their respective political parties to vote for their party’s nominee and since those electors are usually loyalty party members, the outcome is generally never in doubt. 

          There are few provisions in the Constitution governing who can become an elector.  The Constitution, in Article II, Section 1, clause 2, merely provides that a person cannot be an elector if they are currently holding any federal office and that at least one of the candidates for president or vice president cannot be “an inhabitant” of the same state as the elector.  The Fourteenth Amendment, clause 3, provides that any person who previously engaged in any “insurrection or rebellion against the United States” (referring to anyone who was part of the Confederacy during the Civil War) could not be an elector.  States have adopted laws governing who can be an elector consistent with the Constitutional provisions. 

How This Skews The Count 

          The net effect is that the winner of the popular vote is not necessarily elected as president because the total popular vote is discounted when the conversion to the electoral college system takes place.  For example, a candidate can win a large number of popular votes in a state but that popular vote is discounted because all they had to win was by 1 vote to get the entirety of the state’s electoral college vote (other than Maine and Nebraska).  So a candidate can win and has won the presidency by winning less than a majority of the votes nationwide but by winning in states with enough electoral college votes to prevail. 

          That said, different political parties will say that this system is either fair or unfair depending on the results of the presidential election.  Some years it will favor one party but in other years, the other party.  In 2000, candidate George Bush was declared the President even though he did not receive the majority of the votes and the same occurred in 2016 with the election of President Trump.  However, in the 1960 election between John Kennedy and Richard Nixon, Kennedy won the electoral vote by a wide margin even though the popular vote was either only slightly in his favor or which, some would claim, he lost.

The Reasons It Was Established 

         It is well to remember that slavery was enshrined into the Constitution.  Article I, Section II, Clause 3 provided: 

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.  

         Slaves could not vote.  Slavery was abolished by the Thirteenth Amendment but that was not until 1865 and persons could not be denied the right to vote by “previous condition of servitude” until the Fifteenth Amendment was enacted in 1870. 

         Thus, at the time the Electoral College system was created at the Constitutional Convention, the South, where most of the slaves lived, was at a disadvantage in terms of population.  Not only did the North have more people because it had larger cities, but all those people were counted as whole numbers since they were all “free Persons.”  So the South complained and because of the desire to enact the Constitution, a compromise was reached in order to “even out” the power of the South in the election of the President.  Under the Electoral College system and because of the above provision, slaves, even with the 3/5th discount, could be counted to determine the amount of representatives, and thus electors, a state could have. 

        And because of its vast number of slaves, Virginia became a very important state in presidential elections because it had a large population including slaves and thus had a greater number of representatives in the House and thus a large number of electoral votes.  Indeed, several of our early presidents were Virginians (Washington, Jefferson, Madison and Monroe).        

        But the justification for the Electoral College based on slavery never existed (slavery was always immoral) and the justification for its continued existence based on lack of population in the South no longer exists, given the movement of population to the South in the past few decades.

        Other arguments were of course advanced to justify the system including that, at that time, people did not have access to information about the presidential candidates as they have today because of geography and lack of national news.  So they would have to rely on local persons, those who became “electors,” in order to know what a party and thus a candidate stood for.  Such an argument is also clearly no longer valid. 

        The other argument which continues to this day is that the system gives the smaller population states a larger voice in the election.  Without the College, proponents say, those smaller population states would be of minimal importance in the total popular vote count.  On the other hand, with the system in place, states that are not “swing” states tend to be given less attention by the candidate who realizes he or she will win or will not win those states (see more below). 

Some of the Other Issues 

         In addition to the main complaint that a winner of the popular vote may not become president, opponents claim that, because the focus is on electoral votes, candidates tend to ignore (at least in terms of actual visits) states that they know they cannot win (or indeed states that they know they will win).  So, for example, Republicans tend to ignore California and Democrats, Texas, even though those states have large populations.  (Texas may be changing)  Because they are winner take all states (see above), to spend money and time in those states seems unproductive to the parties and candidates since they have no electoral votes to gain.  This argument seems less significant in the days since television and certainly since the Internet. 

          The above also has the effect of more or less nullifying the votes in those states and thus tends to suppress turnout since voters believe they “know” the outcome already and all a candidate has to win is by 1. 

          As a corollary to the above, the Electoral College system tends to bring more attention and thus more federal money to the “swing” states such as Iowa and Florida, disproportionately to the size of their population.  

          Also related to the above is that often Presidential policies are dictated by how these swing states might be affected, thus skewing those policies in ways that may not be beneficial to the nation as a whole would the popular vote be counted instead. 

          Additionally, the system gives potential power to third party candidates.  Since the system is essentially a “winner take all” system, a third party could deprive another candidate, one from a major party, from winning a given state’s electoral votes by taking away popular votes. 

          Overall, the system deprives the nation of the fundamental notion of  “one person, one vote” because it elevates the power of the smaller states by putting them on an equal basis with larger states and given them power more than they would have would the popular vote count.  Do remember, however, that the framers did not include that fundamental notion into the Constitution.

          Although the system seems antiquated, any change will require a Constitutional amendment since the Electoral College process is enshrined in that document.  Such an amendment would require either passage in the House and Senate by a 2/3rd vote (or by a constitutional convention called for by a 2/3rd vote of the state legislatures) and then ratification by the votes of 3/4th of the state legislatures. 

          And of course, since the Electoral College now is solely in the control of the 2 major political parties, any change which seeks to lessen the power of those parties seems unlikely. 

          Perhaps one day someone will be able to run for president solely from the Internet without being obligated to one or another political party.  If someone were to have, say 100 million followers, that seems a very significant base from which to start. 

Copyright © 2019 Ivan Hoffman.  All Rights Reserved. 

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Ivan Hoffman has been practicing intellectual property law for over 46 years and has written extensively about that topic. (www.ivanhoffman.com). 

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States laws but the laws of other countries may be different.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.      


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