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September 2015 Policy Study, Number 15-8


The Electoral College: Explaining a Constitutional Mystery and Defending American Constitutionalism


Efforts to Reform or Abolish the Electoral College and the Consequences



There are different ideas being proposed to either “reform” or abolish the Electoral College. Some of these ideas include:


    • Popular vote: Scrap the Electoral College, and whichever candidate gets the most votes gets the top office.
    • Popular bonus: Retain the current system, but give the winner of the popular vote extra electoral votes as a reward for carrying a state’s popular vote.
    • Congressional districts: Instead of winner-take-all, award electoral votes per congressional district (this is the system in effect in Maine and Nebraska).
    • Proportional allocation: Divide each state’s electoral votes according to the popular vote.[16]


Bill Whalen, a Research Fellow at the Hoover Institution, argues that “America’s smaller states stand to lose if any of these reforms take place.”[17]


Opponents argue that the Electoral College system is unfair and people are not getting their votes counted. This is a call for more “democracy” in our political system by having a direct popular vote of the President. Perhaps the most popular reform measure being pushed to circumvent the Electoral College is the National Popular Vote (NPV), which has political support from both Republicans and Democrats.


The mission of NPV is to get state Legislatures to pass legislation to commit their respective state’s electoral votes to the winner of the national popular vote:


The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia.The bill has been enacted by 11 jurisdictions possessing 165 electoral votes—61% of the 270 electoral votes necessary to activate it, including four small jurisdictions (RI, VT, HI, DC), three medium-size states (MD, MA, WA), and four big states (NJ, IL, NY, CA). The bill has passed a total of 33 legislative chambers in 22 states — most recently by a bipartisan 28–18 vote in the Oklahoma Senate, a 57–4 vote in New York Senate, and a 102–33 vote in NY Assembly.[18]


In the past the Iowa Legislature has also had the National Popular Vote bill introduced, but has failed to pass. Advocates of NPV are hoping that enough state Legislatures will pass the National Popular Vote bill, which will “guarantee the Presidency to the candidate who receives the most popular votes in the entire United States.”[19] Supporters of the National Popular Vote bill claim that it will preserve “the Electoral College, while ensuring that every vote in every state will matter in every presidential election.”[20]


The objective of this legislation is very clear. It is an attempt to fool people by thinking that not only does their vote for President not count, but it will also end up replacing the Electoral College with a direct national popular vote — which our Founding Fathers rejected. The supporters of NPV will argue that they are not abolishing the Electoral College, which technically is true, but their National Popular Vote bill will destroy the Electoral College by committing states electors to the winner of the national popular vote.


Hans A. von Spakovsky, who is a Senior Legal Fellow at The Heritage Foundation, wrote that the “National Popular Vote scheme is an unconstitutional attempt to eliminate the Electoral College, because the proposed state compact would require Congressional approval.”[21] von Spakovsky argues that the NPV plan is “bad public policy” and would:


    • Diminish the influence of smaller states and rural areas of the country;
    • Lead to more recounts and contentious conflicts about the results of presidential elections; and
    • encourage voter fraud.[22]


von Spakovsky also argues that “the NPV plan strikes at the Founders’ view of federalism and a representative republic — one in which popular sovereignty is balanced by structural protections for state governments and minority interests.”[23] John Samples, Vice President and Director of the Center for Representative Government at the Cato Institute, argues:


NPV offers a way to institute a means of electing the President that was rejected by the Framers of the Constitution. It does so while circumventing the Constitution’s amendment procedures. Implicitly, NPV advocates believe that direct election of the President by the greater number of voters weighs so heavily on the normative scales that bypassing constitutional propriety should be accepted. Yet the U.S. Constitution establishes a liberal republic not a majoritarian democracy.[24]


Samples argues that the debate over abolishing the Electoral College “shows a lack of understanding of American political institutions, and if ‘pure democracy’ line were followed, it would encourage the abuse of power and the violation of individual rights.”[25]  As Samples further explains:


How does the Electoral College constrain political power? Direct election of the President would reflect the will of a majority. In contrast, the Electoral College provides representation for both the population at large and the states. It thereby tempers and limits the power of majority rule…[26]


The NPV is the most dangerous threat currently to the Electoral College. Certainly opponents of the Electoral College could try to reform or abolish the Electoral College through the constitutional amendment process, but that would be extremely unwise. “If the Founders had wished to create a ‘pure democracy,’ they would have done so,” stated Samples.[27]


Abolishing or reforming the Electoral College not only brings serious constitutional questions, but it also brings up the serious and troublesome consequences in elections. One concern is that states could lose influence if the nation were to adopt NPV. As von Spakovsky explains:


Although the point has been argued that under the current system, swing states garner the majority of candidates’ attention, swing states can change from election to election, and many states that are today considered to be reliably ‘blue’ or ‘red’ in the presidential race were recently unpredictable…While the Electoral College assures that minority interests in a variety of geographic regions are protected, the NPV will help to protect only select urban interests.[28]


“It is far from clear that most states would enjoy more influence over the presidential election in a direct vote system,” stated Samples.[29]


In addition, switching to a direct national popular vote would be the demise of small states as candidates would focus on larger states and areas of greater population centers. As John Samples explains:


First, consider the effects of direct popular election of the President. We would probably see elections dominated by the most populous regions of the country or by several large metropolitan areas. In the 2000 election, for example, Vice President Gore could have put together a plurality or majority in the Northeast, parts of the Midwest, and California.[30]


“By the time a President got himself elected under such a system, he would be indebted to — and would essentially represent — isolated regions, not the country as a whole,” stated Tara Ross.[31] Smaller states under a direct national popular vote would be neglected or outright ignored. Iowa and New Hampshire, which have the first presidential caucus and primary, would be completely ignored and much of the country would be considered “fly-over” country by candidates. Many complain that small states such as Iowa and New Hampshire hold a lot of influence during election years (Iowa is also a swing state), but candidates are forced to practice “retail-politics” in both states, which actually require presidential candidates to meet people and attend small gatherings at pie socials and other events, which provides a richer vetting process for voters than the traditional big city scripted campaign rallies. Small states, such as North and South Dakota, which each have three electoral votes, matter in a presidential election, but they would be totally ignored if we had a direct popular vote, because in a close presidential election, such as in the election of 2000, three electoral votes were crucial to both major party candidates.


The consequences of this occurring would be as John Samples explains:


The victims of direct elections would be regions too sparsely populated to merit the attention of presidential candidates. Pure democrats would not regret that. But I wonder if a large and diverse nation should write off whole parts of its territory? We should keep in mind the regional conflicts that trouble large and diverse nations…The Electoral College militates against the poison of regionalism by forcing presidential candidates to seek support nationwide. By making sure no state is left behind, it works against disunity.[32]


Another benefit to the Electoral College is that it forces the major two parties (Republican and Democrat) to seek a broad political coalition to win the presidential elections. The best example of this can be found with President Franklin D. Roosevelt and President Ronald Reagan. Both were presidential candidates who built strong party coalitions across the nation. President Richard M. Nixon was successful at building a broad Republican coalition when he brought several southern states into the Republican Party. As von Spakovsky states:


The winner-take-all allocation of electoral votes within 48 states necessitates that a candidate be popular enough to appeal to a broad electorate, including moderate voters, and provides the winner of the presidential race with both finality and a mandate even if his popular vote total is slightly below 50 percent…The Electoral College requires a presidential candidate to win simultaneous elections across 50 states and the District of Columbia…[33]


Undermining the Electoral College will also threaten our two-party system.  Political parties in the United States developed as a part of our political culture and our two-party system has remained strong. Throughout our history there have been multiple third-party candidates, but often third-party candidates do not attract a broad coalition, although President Theodore Roosevelt in the 1912 presidential election came in second and even beat the Republican candidate President William Howard Taft. Roosevelt was an exception because his Bull Moose or Progressive Party was led by a very popular former President, who won the support of a broad-based progressive movement against a more conservative Republican William Howard Taft. In the 1912 presidential election the top two vote earners, Roosevelt and Democrat Woodrow Wilson, who won the election, were both progressive candidates.


Third-party candidates can spoil an election. This occurred most recently in 1992 with Reform Party candidate Ross Perot, who many argue prevented President George H.W. Bush from winning reelection, and in 2000 when Green Party nominee Ralph Nader took votes away from the Democratic candidate Vice President Al Gore. Many Republicans are nervous about this currently with the upcoming 2016 campaign in regard to the possible independent run by businessman Donald Trump.


The Electoral College provides stability within our political party system and forces candidates, just as with the example of Franklin D. Roosevelt and Ronald Reagan, to form broad coalitions. Eliminating the Electoral College and replacing it with a direct popular vote would allow more opportunity for more third parties, as well bringing in the problem of runoffs and potential for greater voter fraud, which is already a serious problem confronting campaigns at all levels. As Tara Ross states:


Granted, America is a long way away from such a multi-party, fractured political system. Psychologically, if nothing else, the electorate is used to thinking in terms of a two-party system. It could take a while before the system deteriorated. However, if the Electoral College facilitated the growth of the two-party system that has brought so much stability to American elections, would it not be natural to assume that eliminating the Electoral College would eventually lead to the end of the nation’s stable two-party system?[34]


Political historian and commentator Michael Barone argues that the Electoral College provides “great institutional support” to the two-party political system.[35]  As Barone wrote:


Some contend the Framers expected that the Electoral College would be made up of local notables, who would ordinarily vote for prominent state or regional leaders, and that the House of Representatives would then choose among them. But it was clear by 1796 and 1800 that there would be national parties who would choose national nominees, and that continued to be the case after the demise of the Federalist party, when the single major party, the Republican-Democrats, chose their nominees in a congressional caucus. After that system broke down in 1824, competition between two national parties promptly reappeared. The Electoral College became the scoreboard that determined the winner of the contest between these two parties.[36]


The Electoral College brings stability and forces the two major political parties (Republicans and Democrats) to build national coalitions in order to win the presidential election. As we approach the 2016 presidential election we can already see both Republican and Democratic candidates who are running for their respective party’s presidential nomination trying to appeal to a broad coalition of voters, especially in swing states such as Ohio and Pennsylvania, among several others. As an example of this, several Republican candidates are trying to rebuild the Reagan coalition, which not only included rank-and-file Republicans, but also Southerners and blue-collar Democrats who supported both Reagan and Richard M. Nixon.


As Barone argues:


Our two major parties may be awkward beasts, ideologically incoherent much of the time, deeply divided within themselves on occasion, perceptibly different in different regions. But they have proved to be the best mechanisms for achieving acceptable results in the republican framework erected by the Framers.[37]


“Keeping the Electoral College will tend to keep our two major parties strong, and capable of presenting choices acceptable to a majority of Americans,” argues Barone.[38]


The issue of recounts and voter fraud is a serious question that needs to be addressed in regard to this debate over the Electoral College. “Under the NPV, recounts would be both more prevalent and more problematic,” argues Hans A. von Spakovsky.[39] von Spakovsky notes that:


The basic principles of federalism — the principles upon which this nation was founded — were used to design the U.S. election process. As a result, federal elections are decentralized affairs; each of the 50 states and the District of Columbia run their own elections on the first Tuesday of November every four years or for a varying period before then in early voting states. Every state has different procedural rules for the administration of elections, from the definition of what constitutes a vote to how recounts are triggered and conducted.[40]


“The winner-take-all system for electoral votes reduces the possibility of a recount since popular vote totals are often much closer than the Electoral College totals,” argues von Spakovsky.[41] The thought of a national recount would be far worse than the recount in Florida during the aftermath of the 2000 presidential election. As von Spakovsky argues:


The prospect of a candidate challenging ‘every precinct, in every county, in every state of the Union,’ should be abhorrent to anyone who witnessed the drama, cost, delay, and undue litigation sparked by the Florida recount of 2000. Worse still, there is little chance that the ballots would be recounted in a consistent manner across the nation or that there would be a national, as opposed to piecemeal, recount.[42]


In addition, election laws in each state and in the District of Columbia are different, and this would also lead to confusion and problems in a possible recount:


Election laws vary by state, which means that 50 different standards (plus the District of Columbia’s) would be applied to a recount, and no state or group of states that wanted a national recount could force other states to participate. Ironically the NPV, which is supposed to make each vote count equally, would likely result in varied and even conflicting decisions among the states as to the validity of each vote. Moreover, while the total of the national popular vote may be close, the vote totals in particular states may not be close as all — certainly not close enough to trigger a recount under that particular state’s recount laws even if a losing candidate believes a national recount is warranted.[43]


Voter fraud is another problem that will emerge with a direct national popular vote. “Currently, a fraudulent vote is counted only in the district in which it was cast and therefore can affect the electoral votes only in that particular state,” stated von Spakovsky.[44] Although voter fraud is currently a serious issue, which is why voter identification is so crucial, it will only make the situation worse with a direct national election as von Spakovsky argues:


Under the NPV, however, vote fraud in any state would affect the aggregate national vote. To a would-be wrongdoer, this is a drastic increase in the potential benefit obtained from casting fraudulent ballots. Fraudsters would be encouraged to engage in fraud to obtain further votes for their national candidate. Under the current system, there are some states where such fraud would make no difference, but with NPV, every fraudulent vote obtained anywhere could make the difference in changing the outcome of the national race. This prospect is even more worrisome when one considers how much easier it is to cast fraudulent votes in strongly partisan neighborhoods and one-party districts where there are no (or few) members of the opposition party to work as election officials or poll watchers.[45]


As a historical example, Hans A. von Spakovsky illustrates the major concern with voter fraud with the close presidential elections of 1876 and 1888. In 1876, similar to the election in 2000, both the Republican Rutherford B. Hayes and the Democratic candidate Samuel Tilden claimed that they had won the election and a few states’ electoral votes were in dispute. Tilden had won the popular vote, but there was question about vote fraud in the Southern states that questioned the actual results of the popular vote.[46] In the close election of 1888 Democratic President Grover Cleveland won the popular vote, along with the South, but Republican Benjamin Harrison won “20 of 25 states.”[47]


Overall NPV is bad policy and state Legislatures should not be fooled into believing the “more democracy” arguments of those who wish to abolish the Electoral College. Hans A. von Spakovsky provided an excellent summary on why the NPV is bad policy when he wrote:


The NPV is both unconstitutional and bad public policy. It would devalue the minority interests that the Founders sought to protect, create electoral administrative problems, and radicalize the U.S. political system. If the proponents of the NPV believe that this change is necessary, they should convince Congress and the American people and use the proper method for amending the Constitution.[48]


The Electoral College is part of the Constitution, and therefore, part of our constitutional system, which must be preserved. Already as a nation we have drifted away from constitutional limited government and abolishing the Electoral College will further harm our constitutional republic. “The Constitution has succeeded precisely because federal constraints in the Electoral College have preserved the value of every American’s rights, interests, and votes,” wrote George Grant in The Importance of the Electoral College.[49]




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