Electoral College: High-Time to Abolish and Replace With Popular Vote Wins

History Proves the Point: Proof Meet Pudding

(EC has outlived its time - say goodbye)

Rather long post based on my extensive research – many links and sources included – enjoy.

So why even have the Electoral College? Elector’s only duty is to affirm the popular vote; finalize the count; and then vote to confirm who is to be president and vice president. That process officially closes the last election.

Two historical notes:

1.  Most of the nation’s founding fathers were actually rather afraid of democracy,

2.  They wanted an extra layer beyond the direct election of the president.

For example: Alexander Hamilton (who BTW wrote most of the “Federalist Papers” that pushed the new Constitution onto the public for their support) said that the EC was designed to ensure “…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.”

Further: Practically all the framers were smart and well-intentioned, but they had blind spots like this list of 10 sorted as best I can relate them:

1.  They were leery of too much democracy, which is why only one of the four power centers they created (the House of Representatives) to be directly elected by the people. (Note: Senators were originally picked by state legislators until passage of the XVII Amendment: April 8, 1913).

2.  The often overlooked a blind spot that led to the Electoral College system was the framers’ thoughts, or lack of thoughts, about political parties and their influence.

3.  The framers didn’t foresee the development of national political parties (even though ironically, the first two-party system took shape almost immediately after ratification).

4.  Without parties to nominate candidates and organize their supporters, without a national media, without a tradition (which didn’t come for more than 100 years) of candidates traveling around the country begging for votes, the framers couldn’t picture how, after George Washington left the scene, there would be political leaders with sufficient national reputations among ordinary voters to support a national election. That was a sign of the early distrust of the people and their ability to choose whom they wanted, and not someone whom was put up to run.

5.  Presidential Electors were meant to solve that problem. They would be chosen, and sadly, not directly by the voters but by the state legislatures. They were supposedly the better-informed elite who would be more likely to know if there was a new but lesser-known leader of Washington’s caliber. (Note: That aspect is even difficult for present-day Americans to grasp, or for well-informed electors who might not know that much about political leaders from other states. Framers from smaller states worried that would lead to the election of presidents from big states that prevails today in many rural locations).

6.  The framers’ original plan required each elector to vote for two men for president — one of whom had to be from a state different from the elector.

7.  That provision, although modified by the 12th Amendment to allow electors to indicate which of their two choices is meant to be president and which vice president, is still in the Constitution.

8.  If it had been enforced, it would have prevented Texas in 2000 and 2004 from voting for both Bush and Cheney, both Texans at the time (Cheney later claimed WY as his home state). Of course, the party system came along and electors are no longer chosen for their wisdom or knowledge but for their loyalty to those parties, and they were not expected to exercise judgment about the relative merits of potential presidents, just simply follow “party line and remain faithful.” They left it up to the states to decide whether to hold a popular election for president at all. In fact SC one of the 13 original states, never did so until after the Civil War.

9.  The framers also did not impose any type of absurd winner-take-all system by which all but two states currently operate and which automatically awards all of a state’s electors to whichever ticket wins the popular. Maine and Nebraska are the only two to award an electoral vote to the winner of each congressional district and two bonus votes (which represent two Senators) to the statewide winner, if all did that that then the whole swing-state obsession would go away and that currently is leads presidential campaigns to pay attention only to states that might go either way.

10.  The framers also did not think about tickets, political parties, and certainly not about the mind-numbing complexities of the campaign finance system and the challenge of apportioning the onslaught of late spending across TV markets to maximize the impact of 30-second Ads, 

But, their system did give us, even as amended and evolved, the spectacle we have today: The EC votes win while the popular vote gainer loses. 

(Note: That has happened 5 times in our history (see graph above) most recently in the 2000 election with Geo. W. Bush vs. Al Gore, and again in 2016 with Donald J. Trump vs. Hillary Clinton – she won with 2-3 million more popular votes but not enough EC votes – case closed).

So, what is the point of the Electoral College?

1.  To preserve “the sense of the people.”

2.  At the same time ensuring that a president is chosen “by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.”

In modern practice, the Electoral College is mostly a formality to affirm the results of the just-held election:

FYI: There is “no Constitutional provision or Federal law that requires Electors to vote according to the results of the popular vote in their states.”

This is precisely the language of the Constitution in Article II, Section I (from Cornell Law library) – emphasis in RED follows:

The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted.

The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President.

But in choosing the President, the votes shall be taken by States, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice.

In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice President.

The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected.

The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.

Before he enter on the execution of his office, he shall take the following oath or affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Impact for right now – today: In other words, as clearly stated above, electors are free to change their mind and not stick to the process of how they were chosen – and that means those picked by the voters to support their party’s nominee for president.

As I have said, that takes away the will of the individual voter assuming that the elector changes his/her/their mind and that the candidate I voted for does in fact will not win – ergo: A citizen’s individual for their choice assumes they had the majority vote, will not count, if electors swing towards any other person during this certification process.

The Supreme Court in Ray v. Blair, 343 U.S. 214 (April 3, 1952) that states could require electors to take a pledge to support the party’s presidential and vice presidential nominees from its national convention; many do.

Some also prescribe fines of $500 to $1,000 to so-called “faithless electors” for not voting for the party’s nominee, or allow them to be replaced by an alternate. Whether those pledges or fines could be upheld by the Supreme Court is unclear and never addressed out of no need.

Since the 12th Amendment (added June 15, 1804) there have been several federal and State statutory changes which have affected both the time and manner of choosing Presidential Electors but which have not further altered the fundamental workings of the Electoral College.

There have also been a few curious incidents which its critics cite as problems but which proponents of the Electoral College view as merely its natural and intended operation. 

Key to final arguments, both pro and con to keep the EC or go with a popular vote is simply stated in the Ray case ruling this way spoken by the USSC ref: Electors changing their mind and their vote:

“We appreciate the argument that from time immemorial the electors selected to vote in the college have voted in accordance with the wishes of the party to which they belong. But in doing so, the effective compulsion has been party loyalty. That theory has generally been taken for granted, so that the voting for a president and vice-president has been usually formal merely. But the Twelfth Amendment does not make it so. The nominees of the party for president and vice-president may have become disqualified, or peculiarly offensive not only to the electors, but to their constituents also. They should be free to vote for another, as contemplated by the Twelfth Amendment.”  [Footnote 10] Page 343 U. S. 223

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Finally, this irony for those who support Trump and love the 2016 results and blast anti-EC types along the way. His EC comments

in the now-infamous 60-Minutes show segment Trump complained about the Electoral College system, in which each state is worth a different number of votes, saying that he preferred the popular vote method, telling host Lesley Stahl: “I respect the Electoral College system but I would rather see it where you went with simple votes. You know, you get 100 million votes and somebody else gets 90 million votes and you win.” 

That was not the first time Trump has lashed out at our voting system.

On election night 2012, he incorrectly tweeted that Mitt Romney had won the popular vote but lost to Barack Obama: “He lost the popular vote by a lot and won the election. We should have a revolution in this country!”

Then in 2012 after Obama won a second term, Trump tweeted: “The Electoral College is a disaster for a democracy, phony, and has made a laughing stock out of our nation.”

My 2 cents: More on this topic is an excellent article from a very smart man who is an expert on the Electoral College from Vox.com.

Also, two references on the EC System vs. the Popular Vote System are here from Truth Out and here from PBS.

Both have strong arguments for repealing the XII Amendment to ditch the EC and live by the “one-person, one-vote” rule and let the most votes-winner actually win.

I say abolish it and have process for a tie vote clearly stated by law in a simple and modern system.

I hope this post was helpful and educational – thanks for stopping by.