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Our Electoral College system is weird — and not in a good way

MinnPost illustration by Jaime Anderson

One in a series of articles. You can read the whole series here.

As you may have noticed, it’s a presidential election year.

We’re already long-since far enough along that the Electoral College geeks (among whom I number myself) are busily publishing maps showing which are the “key,” “swing,” “battleground,” “purple” states which will determine the outcome of the presidential election, and which are receiving and will continue even more so to receive vastly disproportionate shares of advertising, candidate visits and other forms of attention from the campaigns.

Is this a good thing?

States come and go from the map, from month to month and from cycle to cycle. Minnesota seldom makes an appearance. But two states -- Ohio and Florida -- have consistently been on the battleground state A-list for the past six presidential cycles going back 24 years.

If you listen to enough political chat shows, you will soon hear one pundit or another flog a favorite PunditFact: No Republican has ever been elected president without carrying Ohio. (This is true, but not quite as powerful as it first sounds. Ohio used to be more a red-leaning state. Four Republican candidates won Ohio without winning the presidency. Think about it. It’s unlikely that any Democrat can win the White House without winning Minnesota. But that doesn’t make Minnesota a key swing state.)

Still, over recent history and as far ahead as one can reasonably see, any candidate who carries Ohio and Florida will become president. If the campaigns split those two states, then a second list of about eight states come into play.

Is this a good thing? That voters in two -- or maybe 10 -- states are the only ones that matter and the rest of us are chopped liver? I can’t imagine a good argument for why that it is a good thing.

Anyway, these are just reminders of something you learned in roughly the fourth grade. Our presidential elections are not national elections. They are 50 (actually 56; I’ll explain in a minute) separate elections for the electors who will actually vote for the presidential candidates.

The Electoral College system, as amended, is a sort of messed up accidental gift from the Framers of the Constitution. (The Constitution, by the way, doesn’t mention the words “electoral” or “college.” It uses the term “elector” to refer both to the most average voters who get to vote in election for the House of Representatives, and then uses it again to refer to the very special small number of voters whose votes count directly in choosing a president, but who have never really played the role the Framers intended for them. )

The Electoral College system distorts every presidential campaign in a variety of ways and holds at least the potential (it’s more than potential, it has happened several times) to lead to a result that undermines the democratic legitimacy of the election.

Having fallen out of love with the Electoral College system sometime since the fourth grade, I should concede that it’s not the biggest structural problem with the U.S. system. And some aspects of it are not as deeply embedded in the Constitution as you may think.

Almost impossible to change

Like other elements of the U.S. system discussed in this occasional series, you can understand the Electoral College system as something that is rooted in the Constitution. And those roots are almost impossible to change because the Constitution is so hard to amend.

But many aspects of the Electoral College system as we practice are not mandated by the Constitution. Rather, they are created by mere statutes. Those structural factors, plus those statutes and or formal rules, combined with powerful norms of U.S. political culture, constitute the actual system. If we want to understand the things that have become dysfunctional in our system, we have to look at all three levels.

Here’s an example that will seem ridiculous: The Constitution does not require a popular vote in connection with the presidential election.

The Framers put into the Constitution a formula for awarding electoral votes to the states (and, by the way, that formula violates the otherwise sacred principle of one-person, one-vote). Then they wrote (Article 2; Sec. 2) that: “Each State shall appoint, in such Manner as the Legislature thereof may direct” that number of electors. For Constitutional purposes, the electors are “appointed” by each state Legislature, by whatever means each Legislature chooses. The Constitution doesn’t say that the state has to hold an election.

Of course, there’s a pretty powerful norm that requires each state to allow the people to vote, and they all do, by state law, although there is plenty of variation between one state and another over how the votes are conducted. (For example, states, like Minnesota, that have same-day registration, have more voter participation than those that don’t.)

Imperfect Union: The Constitutional roots of the mess we're inBut, before that norm of popular elections for president was so powerfully established, not all states held a popular vote. Here’s a weird fact: South Carolina -- which is after all one of the original 13 states -- never held a popular vote for president until 1868 (that was the 21st presidential election cycle). Before 1868, the South Carolina Legislature chose the electors directly, without input from even the white, male freemen who could vote at the time in other elections.

The Constitution has not been changed on this point. But, as we currently understand them, the political norms would make it unthinkable for a state to decide to appoint its electors without benefit of a popular vote. Not unconstitutional. Just unthinkable. That’s how norms work.

Here’s a less ridiculous example of how states could mess around with the Electoral College system without violating the Constitution. Many Americans probably assume that the “winner-take-all” practice of electoral votes, whereby the ticket that carries the popular vote in a state gets all of the electoral votes of that state, is embedded in the Constitution. But the attentive among you know this is not the case. States have the constitutional prerogative to divvy up their electoral votes however they like.

In fact, two states at present – Nebraska and Maine – do not have a winner-take-all rule. In those two states, the presidential ticket that carries each congressional district gets one electoral vote, and the overall statewide winner gets the two bonus electoral votes representing the two Senate seats. (In 2008, because of this wrinkle, Nebraska’s electoral votes were split -- four for John McCain, who carried the majority in the state, and one for Barack Obama ,who carried the bluish congressional district that includes Omaha.)

That’s how you get 56 separate electoral vote elections. One for each of the 50 states, plus one for each of the three Nebraska districts, plus two for each of Maine’s districts -- –plus a 56th election for the three electoral votes allotted to Washington, D.C., since the ratification of the 23rd Amendment in 1961 gave the nation’s capitol a say in presidential elections.

Winner take all

If we did nothing more than to abandon the fairly ridiculous state-by-state winner-take-all system of electoral votes, a couple of the silliest aspects of the Electoral College system would go away, starting with the dominance of the “swing states.” The likelihood of a popular vote loser winning the presidency might decline a little. And Ohio and Florida would no longer rule the world. But then, why should Ohio and Florida agree to that, since it would cost them much of the special attention they get every quadrennium? Under the Constitution, Ohio and Florida get to decide that for themselves.

But it could get weirder if some big states adopted the Maine-Nebraska practice but others stuck with winner-take-all. Why would they do that? Well, seeking partisan political advantage would be one reason.

You might have missed it, but Pennsylvania had a big fight last year over changing from winner-take-all to the congressional-district-by-district method of awarding electoral votes. Democrats opposed it fairly unanimously, but most Republicans favored it. Why? Pennsylvania has given its electoral votes to the Dem nominees in the last five elections in a row. It’s considered at least a blue-leaning state for 2012, which means the Obama ticket stands likely to get all 20 electoral votes. But, because of the way the lines are drawn and how well Republicans did in the 2010 election, 12 out of 19 of its House seats are currently held by Republicans. Under the district-by-district allotment system, the Mitt Romney ticket might get half or more of Pennsylvania’s electoral votes. 

Clear and potentially game-changing electoral-vote advantages could be gained by one party or the other by changing particular states away from winner-take-all.

In general, such a nakedly partisan manipulation of the system has been deemed too ugly and aggressive. That may be one reason the proposed change failed in Pennsylvania, despite strong support by the current Republican governor. But the norms they are a-changing. The state laws could be changing and the basic constitutional structure is just sitting there, waiting to be manipulated.

The Electoral College system is pretty weird. No other country has anything like it (and bear in mind, every country with a written constitution has had the benefit of the U.S. precedent when they designed their own system). And if we were starting over inventing U.S. democracy, I very much doubt that the jury-rigged Electoral Vote system would be the winning suggestion.

Furthermore, for all the hoorah given to the “original intent” of the “founding generation” behind the various provisions of the Constitution, the Electoral College system as practiced today has virtually nothing to do with the Framers’ intentions or expectations or vision of how it would work.

That’s a tale full of history going back to the Constitutional Convention, which I’d best leave for a subsequent installment of this series. In fact, I will.

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Comments (21)

The problem with liberals

See this is the thing, liberals so often end up supporting the status quo because they decide something can't be changed. Then you open the paper and there Republicans are, changing it. We have two amendments on the ballot and they're still likely to pass at this point. If they could get prohibition into the constitution what makes you think they couldn't abolish the EC and replace it with a simple popular vote?

Forget the "norms" because Republicans have forgotten them. They don't want to "participate" or have a voice, they want to take over, dictate, and control. That's what these ID laws are all about, rigging the system to give themselves and advantage.

Liberals are the ones who are supposed to be the champions of change but instead in the US they've become the champions of the status quo.

Participate and Have a Voice

Paul, I think you vastly undersell the concerns that conservatives have with voter fraud. You may counter that this fraud is so rare that it isn't worth bothering over. I think that's naive, but I understand the argument.
What gets me about your statement about participating and having a voice is that more and more liberals are pushing policy decisions *away* from the legislative sphere and into the judicial. Insisting that policy measures, like marriage guidelines, can't be decided through the people is, by definition, anti-democratic. (Btw, I'm a gay marriage supporter.)
You're dead on about modern liberals and the status quo. Evey time I see that bumper sticker about unions having brought us the weekend and the 40 hour work week, I think 'ok, but what about the last forty years?'. And yet there is little or no conversation on the role that unions have played in holding back progress in schools. There is little or no conversation on the damage that public sector unions have had on state budgeting. The status quo must be defended at every point!

"I think that's naiive"

Widespread voter fraud is a fiction. It is not naiive to pay attention to evidence - or in this case, the extraordinary lack of it.

Sorry about the hijack...

My previous post ended up looking like a hijack in violation of the new comment spirit. I meant to bring it back to the constitution. Did you know that we actually ratified the Equal Rights amendment back in the 80s but congress has been sitting on it procedurally ever since? We could get rid of the electoral college, and we'd better start working on it because if you think Republicans are gonna just give up in Pennsylvania, and not try to game the system anywhere else, you're on the wrong planet.

Amending the Constitution

It is very difficult to amend the Constitution. The Equal Rights Amendment failed, in fact, to be ratified by a sufficient number of states to adopt it. The window for ratification expired. Beforehand, though, was the shift in the GOP, which led to a movement to oppose the amendment, led by...a woman.

I think a fairer

and more accurate system of electing a president (accurate in that it would better represent who the people wanted to be president) would be to give each congressional district in the state (and country) an electoral vote and the presidential candidate who wins that congressional district would get that vote.

In essence, a proportional system based on congressional districts would give Minnesota 8 votes instead of the current 10.

hardly

With all the gerrymandering and Representatives choosing their constituents that goes on under the current system?

I can't even fathom the outright war that would go on during re-redistricting under your proposed system.

Be careful what you ask for

Is the EC arcane? Unrepresentative? Unfair?

Yes, yes, and yes.

But imagine the calamity that would befall the country if we did away with the EC and replaced it with a popular vote ... and that popular vote was so close that every single ballot in the country had to be recounted.

Every. Single. Vote. In every state, district, commonwealth, and territory.

I can't even imagine what a mess that would be, because it's too disastrous to contemplate.

Other voting systems

Isn't the parliamentary system still a distributed voting system? Very few democracies have direct election of the executive, right? Especially large democracies. For instance, in the latest UK general election http://en.wikipedia.org/wiki/United_Kingdom_general_election,_2010, the Conservative party won 306 (about 47%) seats with 36% of the vote. That suggests some kind of district re-balancing. It certainly doesn't fit a straight percentage.

Also, can you imagine the mess in 2000 if we had needed to have a nationwide recount? The electoral college kept the recount in one state. Surely an unintended, but real benefit.

Good piece, Eric…

I don’t quite agree with Paul Udstrand, but almost. I’m not sure “liberals” are wedded to the status quo quite as much as Paul suggests, but I DO think he’s on to something in his characterization of modern “conservatism.” I’d argue that, along with the drastic changes in “norms” that Paul points to, a drastic change in terminology is in order, though I think it unlikely to happen.

There’s nothing genuinely “conservative” about most of the current “conservative” agenda, and I’d argue that some other term – “radical,” “neofascist,” “reactionary” are but a few of many that come close, but don’t quite capture the sanctimonious malevolence of the current “conservative” movement – ought to be adopted and used if clarity about the movement’s goals and tactics is to be achieved. What I read and hear from people who call themselves “conservative” in recent years has nothing to do with making social, economic and/or political change “gradual,” “measured,” or “thoughtful.” Instead most of what’s proposed from those sources constitutes an abandonment of many of the ideals of both democracy and Christianity that are claimed to be revered.

In many ways, it’s a whole basketful of new topics that are outside the scope of what Eric’s writing about, but that might be fruitful to explore at some future date, since they have ramifications at every level of society and governance.

I find it hard to argue that the electoral college constitutes anything but an anachronism, and one that has the effect of significantly diminishing the weight of votes from individual citizens. I’ve forgotten the details, but several articles have been written in recent years about how a candidate could conceivably win a presidential election by winning only about 1/3 of the states – if they’re the right states, with enough electoral votes – and we already have a recent (2000) example of a president being “elected” by a minority of those citizens who cast a ballot. Something ought to change, but inertia is a powerful force, and at the moment, the changes that seem to have the most financial backing are alterations to the system that would make it LESS democratic, rather than more so – in some ways a return to the patrician days and attitudes of the 18th century founders. While that could be claimed to be “conservative” in some circles, tossing aside a couple centuries’ worth of constitutional refinements and changes to return to the 18th century or earlier strikes me as radical, not conservative.

Senate

The same arguments apply to the Senate, which is also based on counting States as the basic unit in elections. Remember that the main function of the Constitution was to define the powers of the central government and give the rest by default to the States (but with the 'general welfare' wild card).
Partly this was a consequence of travel and communications in the 18th century. At that time a layered, decentralized system made more sense. Most people were involved in choosing their representatives to the next level of the system, with relatively few making direct governing choices.
We are no longer in the 18th century; nation wide polling is now practical.

As regards the 'recount' issue; a lot of the problem is with paper ballots, which have a lower bound error rate of about 4% -- you can't do much better with that technology. That residual 4% error rate means that in any close election, there's a good chance that a complete recount would come up with a different result. Because the error rate is inherent in the system, we could never be sure what the 'real' result was.
Switching to some sort of computer based technology (assuming that the computers are not programmed by people with links to one of the political parties ;) would lower the error rate by an order of magnitude. A vote by vote record (with the individual voter/vote link blocked) would be possible for recounts.

Liverals and nightmare popular votes

Ray,

I may be guilty of a little rhetorical flourish here but I'll tell you this: I've spent more time trying to get to liberals moving on things than I have arguing with conservatives in the last 30 years. I spent a year trying to convince liberals that our economy was in a recession and we needed to do something about it. Whenever a progressive solution of any kind is presented it's liberals who first step up to argue against it whether it's a national health care system or labor rights.

I agree these terms like "liberal" and "conservative" are tossed around too lightly and plead guilty myself.

Tim,

The EC hasn't prevented election nightmares, we had a president in office for 8 years who lost the popular vote and appointed by the courts in the midst of a nightmare recount. We can tally popular votes and we can do recounts if need be. You do raise and legitimate issue nevertheless. One solution that's out there is run-off elections. If the election is too close to call it will invariably be muddied by multiple candidates, run-offs usually establish clear winners. We could even do instant run-off the first time around.

Then there is the matter of whether the electors are bound...

...or NOT bound, to cast their vote the way the votes in their states dictate. Apparently there is no federal law mandating how the electors cast their votes, and nothing in the Constitution, either.

So the system could be thrown into a real turmoil if some elector(s) had a change of heart, or perhaps even intended to subvert the vote of their state, when it came time to cast the electoral votes. It is not inconceivable that this could swing a Presidential election one way or the other. Apparently it is mere tradition that this is generally not done, although it HAS been done:

"Throughout our history as a nation, more than 99 percent of Electors have voted as pledged. " OK, fine - but what about the others, those that didn't vote as pledged ??

(from http://www.archives.gov/federal-register/electoral-college/electors.html...):

"Electors in these States are not bound by State Law to cast their vote for a specific candidate:

ARIZONA
ARKANSAS
DELAWARE
GEORGIA
IDAHO
ILLINOIS
INDIANA
IOWA
KANSAS
KENTUCKY
LOUISIANA
MINNESOTA
MISSOURI
NEW HAMPSHIRE
NEW JERSEY
NEW YORK
NORTH DAKOTA
PENNSYLVANIA
RHODE ISLAND
SOUTH DAKOTA
TENNESSEE
TEXAS
UTAH
WEST VIRGINIA "

In their defense...

I do have to say I think it was impossible for the founders to imagine a nation of this size and population. The election system they designed probably made a lot more sense at the time, and in fact it's actually worked for a couple hundred years.

Representatives

That's the result of a representative democratic system, as opposed to a pure democracy (from the Greek 'demos' = mob).
Same principle as electing politicians -- we are entrusting them with our voting power, not instructing them on what specific votes to cast.

I agree completely with Dennis

Popular vote in each district awards an electoral vote to the candidate. But I would award the remaining 2 electoral votes in each state (ie the Senate votes) to the candidate that won the popular vote in the state.

In this way, even if you lived in a predominately blue/red district where your vote might not matter, voting would still matter to you as it could influence the winner of the overall popular state vote.

I see this as a win win for all and something that I will certainly be promoting as a needed change.

Gerrymandering

Only if the gerrymandering process were fixed to prevent "packing and cracking". One could require that electoral districts be created only by panels equally divided between the two parties (but what about 3rd parties and independents?), or by an appointed nonpartisan group, or give the function to the courts, or settle on a system based on geographic integrity (e.g., a district may consist of one or more counties, but not part of a county). All options have their problems.

Popular vote might be less problematic, if a secure and reliable electronic voting system were available.

The probleim is....

I hope I'm not veering off topic but I think the main problem we face today is that we've actually drifted into a parliamentary system but we pretend to be something else. We pretend that we're voting for individuals, but we're really voting parties because it's the parties that make policy one way or the other. Our system maintains this illusion and the electorate likewise buys into the notion that we're voting for Romney or Obama as if that individual is going to produce the policies they promise. In fact no individual does so and we end up with these weird situations where someone gets elected and we pretend they either succeeded or failed when in fact it was one party or the other that actually made the policies.

We have to recognize that these executives have very little power unless their party is able to pass legislation. Americans don't seem to get that because they think they're voting for individuals rather than party members. The hyper partisanship that the Republicans have promoted recently has only exacerbated this schism between reality and electoral practice. Romney can run around claiming he's a moderate who's gonna work with Democrats when in fact his party will do no such thing. Obama can run around promising change when in fact he doesn't have the votes in congress to make it happen. Every other in the world recognizes that you have to give a party control, not pretend the executive will have control regardless of he party.

Not so hard to change...

There is no need to amend the Constitution if you want to elect the President solely on the results of the national popular vote.

As noted above, the Constitution grants to each state the right to appoint electors in any manner they so choose. This means a state could pass legislation awarding all of its electors to the winner of the national popular vote.If they were really smart they would write the legislation such that it would only go into effect when enough other states passed similar measures. Once this was teh law in in states totaling 270 or more electoral college votes, you would have the presidency decided by the national popular vote.

This idea is the basis of the National Popular Vote Interstate Compact which has already been enacted in eight states (e.g., California) and the District of Columbia with a combined total of 132 electoral votes.

A few glitches

This does not eliminate the electoral college, just changes how electors are selected.
There's still the apportionment issue -- all electors are not created equal, and you would have to figure out how to write legislation that would bind electors to that course of action.
And of course since legislation can change whenever, there's nothing to prevent a party with a temporary advantage in the leg and a compliant governor to pass overriding legislation.
That's why we're facing the (anti) marriage amendment issue; it doesn't add anything that isn't already there in the form of legislation except a greater resistance to change.
For a real structural change you would require a constitutional amendment, including a shift of control of voting procedures to the Federal government to prevent the various games played by state governments.

Well, kinda...

While it is true that this does not eliminate the electoral college, that isn't really the point, is it? The goal of the compact is to ensure that the winner of the national popular vote is elected President.

As far as taking temporary advantage of the system, I am not sure how that would work. If the number of electors pledged to the compact drops below 270, all states revert to their current system of appointing electors. This is why California and Illinois are state winner-take-all apportioned even though they have passed legislation joining the compact.

As far as structural change goes...Requiring the President to be elected by popular vote would be change enough for me. When was the last time a Presidential candidate spent any time actually trying to persuade the voters of California or Texas?