Posted By: Andrew McComb, Corinne Merdegia, Philip Moncla, Mackenzie Moore,  Maria Oldham, and Dominic Papa

ConLawBlogPostImage1To win the 2016 Presidential election, Donald Trump needed 270 out of 538 Electoral College votes. He ended up with 306. The real discrepancy, however, was with the popular vote. Hillary Clinton finished with 62,523,126 popular votes, while Donald Trump finished with only 61,201,031. It appears she should have won, right? But that is not what happened. Why didn’t she? For the answer to this question, we look to the Electoral College. What exactly is the Electoral College and how does it work? More importantly, is it still working?

What is the Electoral College? Was it solely about protecting the small states?

Framers present at the 1787 Constitutional Convention were tasked with developing a method for electing the President and the Vice President. Among the methods proposed included election by Congress, state governors, state legislatures, or by direct popular vote. The Committee of Eleven, which included Founding Fathers James Madison, James Wilson, and Roger Sherman, devised the instrumentality known as the Electoral College. Given the Framers’ fear of a nation ruled by “the tyranny of the majority,” it is unsurprising that all the state delegates represented at the Convention – except Pennsylvania – rejected the idea of an election by popular vote.

The rejection of the popular vote reinforced the Republican notion (a non-partisan label employed long before the Republican Party was founded) that reasonable intellectuals should represent the people. Prior to the Convention, each state had adopted its own set of rules that laid the groundwork against direct representation using tools like religious tests and the property owner requirement for individuals to qualify as voters. To understand the Framers’ decision to rely on the Electoral College, one must consider the ideals brought forth by republicanism and the role slavery played during the Convention.

Slavery played a vital role in the creation of the Electoral College. The Framers, like slave-owning James Madison, noted that the presence of slaves could affect Southern state representation and may define what classes of people could be given the right to vote. At the Constitutional Convention, several state delegates argued for state representation in proportion to population. The population proportionality would directly affect the amount of state representatives in the House. Non-slave state delegates opposed the increased representation in slave states since popular representation would include the slave population. In addition, non-slave states were fearful that slave states would import more slaves to increase their political advantage. See table below.


Madison and other delegates from the slave states knew slaves could not vote. They did not make room for slave suffrage in their view of republicanism and within their framework of the Constitution. Furthermore, slave states wanted to use their slave populations to garner more political weight, despite the lack of enfranchisement of the slaves.

After much deliberation, James Wilson and Roger Sherman proposed the “Three-Fifths Compromise,” which reduced the representation of slave states by counting each slave as 3/5th of a person in the population tally. The resulting state census would directly affect the number of representatives a state may have in the House of Representatives. Moreover, the state’s number of House representatives would affect the number of electors a state would have for the Electoral College.

Why was this important? The Three-Fifths Compromise afforded more political power to states with large populations. Although the slave states ultimately received a reduction in legislative representation (because slaves were not counted as a whole non-slave person), the compromise offered slave states an advantage for taxation purposes since the Framers contemplated employing the census count for apportioning direct taxation, in addition to representation in the House of Representatives and the Electoral College.. The “Three-Fifths Compromise” therefore was approved by the Convention delegates and used in determining the number of electors for the Electoral College.

Hamilton Sang His Praise for the Electoral College

A year later, Alexander Hamilton penned “Federalist 68” in support of the Electoral College. Hamilton recognized that the election process based on the Electoral College “if be not perfect, it is at least excellent.”

Federalist 68 is peppered with Republican values against direct popular representation. Hamilton argued that independent individuals would be the best electors to select the President. He believed that the Electoral College would protect against foreign intrusion into the election through the purchasing of votes. Hamilton’s strong support for the independent electors in the Electoral College further reinforced Republican ideals against the “tyranny of the majority.”

How Do We Pick Our Electors?

The United States Constitution leaves to the States the power to choose their own methods for appointment of electors in Article II Section I. The only limitation is that no person holding a government officer position may be appointed an elector. The Founders wanted to reserve the States power, and broad discretion, to choose the method for the appointment of their electors.

In the early history of the Electoral College more than half of the states chose to have their state legislatures select their electors. This meant that early on there was no direct involvement by the general public in the selection of the President of the United States.  Thus, to the surprise of many Americans, no federal constitutional requirement exists, even today, for the popular election of the President of the United States.  However, state legislative selection of electors quickly changed, and by the early nineteenth century most states decided to select their electors through popular vote. To this day states maintain the right to choose whichever method of appointment that they deem best, although all states today have chosen some form of popular election to govern the selection of their Electors.  The the modern tradition of popular vote to select state Electors only evolved over time and still relies only on state legislative decisions on this question.

So How Does the Electoral College Work?

Many states choose their electors by popular vote, even though they’re not required to. Generally, there two steps to the selection process.

The first step is the nomination process. The Democratic and Republican parties nominate their own slate of electors, often through conventions, committees, or primaries. Some states have electors run for the position at party conventions, and others allow party leaders to pick their slate of electors. Who are these lucky few that actually get to vote for the President? Electors are often people highly active in politics, those with a strong loyalty to the party and candidate, or donors.

The second step occurs on Election Day. What many people do not realize is that when they cast their vote for the President they are actually voting for their state’s slate of Electors. People are voting for an elector who they hope – and is expected to – vote along party lines. In some states, only the names of the Presidential and Vice-Presidential candidates appear on the ballot, masking the fact that voters are choosing electors rather than voting directly for the candidates. In other states, both candidates and electors are identified.

In 48 states the electoral votes state-wide are “winner-take-all,” meaning that the all of the state electoral votes go to the winning candidate. However, it is different in Maine and Nebraska. There, two electors are selected based on the state’s popular vote, and the rest are selected based on who wins each individual congressional district.

In December, the electors meet at their state’s capitol to cast their official votes. The 12th Amendment gives each elector two votes: one for President and one for Vice President. While electors must cast their votes on the same day, the process is largely left up to the state. Some states hold grand vote-casting ceremonies, often in states where the supported party won, while other states less thrilled with the results let the occasion pass somewhat unnoticed.

What if the Electors Go AWOL?

After the Electoral College electors are elected, they are expected to vote how their state election turned out. What happens if they don’t? Are there any repercussions? Has this ever happened?

As it turns out, there is no federal law or constitutional provision requiring Electoral College electors to vote per their state’s election. While this is true, the Supreme Court in Ray v. Blair did rule states have the power to compel their electors to vote with the state election returns. In response to this, some states enacted statutes which punish the elector for voting against their direction. As of the 2016 election, only 30 states and the District of Columbia had rules that punish these “faithless electors” (as they have come to be called). These punishments are fairly mild, ranging from small fines to misdemeanors. However, other actions are harsher; some states will even cancel the elector’s vote and replace them according to state popular vote.

“Well, that’s great!” you might say, “with these punishments in place the electors will always do what we want. Right?” Wrong. The problem is these punishments for failing to log the correct vote have never once been enforced. No elector has ever been prosecuted in response for failing to vote as directed.

Even with these statutes and punishments in place, electors still have voted outside of their states’ decision. In fact, it has happened 167 times throughout history, including a whopping ten times – the most in any Presidential election – in the most recent election of President Trump. While this number may seem high, those 167 electors amount to less than one percent of electors that have voted in Presidential elections throughout history.

Electors have numerous reasons for changing their vote. 71 electors have changed their votes because their candidate died before they could cast their vote! The LA Times claims only 16 electors have changed their votes for “individual reasons” since 1900.

While reasons for changing votes may be surprising, what may be even more surprising is who the electors vote for when changing it. Many do not simply swap their vote for the opposing candidate. Instead, they tend to vote for a completely different candidate. Of the ten Faithless Electors in the 2016 election, none of the votes cast were for either of the main candidates. Most surprisingly, a Native American elder, Faith Spotted Eagle, was thought to be a better candidate than either Clinton or Trump by one elector!

While many states have attempted to ensure the integrity of the Electoral College remain intact, lack of enforced punishments and continued instances of faithless electors may be proof of the demise of the Electoral College as the Founders intended.

With All These Faithless Electors, Does the Electoral College Still Work?

The goal of the Electoral College was to ensure that we had an educated body electing our President of the United States. The Electoral College attempts to find a happy balance between the popular votes and the possibility of a charismatic tyrant running rampant at the head of our country. But the real question here is: is this process still working today?

As we’ve seen above, the 167 “faithless electors” are really only a small fraction of the total Electoral College votes cast in history. If our concern about the Electoral College isn’t deviation from suggested voting, then what is the real problem? The real problem is that one candidate can win the popular vote, while the other wins the Presidency. This was on display in our last election. If we the people of the United States are really electing our President, then why didn’t Hillary Clinton win?

However, if we remember that one of the goals was to ensure that the “tyranny of the majority” wouldn’t run the country, then clearly the Electoral College is working! If the majority of the United States is electing one candidate, and the other wins, isn’t this a check on the “tyranny of the majority?”

Would the Abolition of the Electoral College Fix This?

Some states are actually trying to abolish the Electoral College without amending the Constitution. The National Interstate Vote Compact is a compact among states that would only take effect if more than half of the Electoral College signed on. Once this majority is met, each state in the compact will pledge to give all of its Electoral College votes to the popular vote winner.

ConLawBlogPostImage2What is stopping more states from signing on? It is argued that because all of the states that have signed on are blue states (10 states so far), Republican state legislatures are reluctant to sign on. Swing states may also be opposed to this measure because it would make them much less significant in the election process. But what would change if the Electoral College was circumvented in favor of a popular vote?

Abolishing or circumventing the Electoral College would seriously impact the way campaigns are run. Candidates would likely stop focusing on a few key battleground states and instead focus on where the majority of their votes are. Theorists suggest that for Democrats this would mean spending even more time focused on the major cities like New York, Los Angeles, and Chicago, while Republicans would focus on Texas, the South, and more suburban areas. However, it is likely that both sides would pay more attention to urban centers and spend less time in less populous swing states. President Trump tweeted during election season that “if the election were based on total popular vote I would have campaigned in N.Y. Florida and California.” This focus on cities may actually hurt access to candidates because large rallies would be held in cities rather than the small, town-hall style meetings that are common in more rural areas.

Another change would be in the focus of advertising. Instead of targeted ad campaigns in key battleground states, national advertisements would become much more important because the focus would shift to reaching a national market. Along the same vein, candidates would likely target their base rather than going for swing voters. This is because they would want their entire base to turn out instead of just focusing on winning independent voters.

A final major change would likely be in the candidates themselves. Sarah Isgur Flores, who advised Republican Carly Fiorina on her last campaign argues that the switch to a popular election may lead to more famous or rich candidates. Because candidates would need immediate name recognition, or at least the money to acquire that recognition, celebrities would have an immediate advantage.

Some commentators argue switching to direct elections would not impact the way campaigns are run because candidates would still be interested in reaching every possible voter. These commentators point to countries that use direct elections now, like France and Indonesia, to show that a direct election would not change candidates focus. However, with campaign strategists and candidates alike saying that the switch to a primary system would prompt an immediate change in their strategy going forward, this assertion seems far-fetched.

A primary system is used in the majority of states to choose the candidates who run for President. States use either open or closed primaries that are either direct or indirect. Closed primaries only allow registered party members in that state to vote for a nominee. Open primaries allow any registered voter to vote in either party’s primary in that state. A direct primary is one where the voters directly choose the candidate for election. An indirect primary requires each voter to elect delegates who then go to the party convention and vote for the candidate there.

A caucus system is still used in a minority of states. Caucuses share the same traits as primaries in that they may be open or closed and direct or indirect. States that hold caucuses have party members who support each political party stand in a different part of a room. Undecided voters also have their own section. Each candidate-supporting group has a turn to give speeches and attempt to persuade the other voters in the room. At the end of the caucus each voter is counted and delegates are apportioned in proportion to the number of supporters they received.

In many Republican primaries/caucuses, a “winner-take-all” system is used whereby the candidate who attains the most votes gets all the delegate votes for that state. The Democratic Party favors proportional allocation of delegates. This means that any candidate receiving some percentage of the vote above a certain threshold (generally 15-20%) must win at least one delegate. The parties also have superdelegates who automatically get to vote at the convention.

For Democrats, these superdelegates are unpledged which means they can vote for whoever they want at the convention. These unpledged delegates are typically high-ranking former or current members of the political party establishment. The Republican party also has superdelegates. However, these superdelegates are tied to vote with the majority of their state.

If there were a direct, national election of the President the political parties would probably transfer to a primary system that was also national. Instead of a lengthy primary season starting with smaller states like Iowa and New Hampshire, the parties would want to have all their eligible voters vote on the same day. This would be advantageous because it would mirror the general election on a party wide scale. It would also shorten the primary season so candidates could pivot sooner in preparation for the general election. Taking the power to control the candidate selection process out of the hands of the early states would also increase party power because the parties would want to institute a national set of eligibility standards for voting in the primary. Rather than having each state use an open or closed primary/caucus, the party would want to institute nationwide standards for eligible voters which would be blind to state lines. The parties would probably still use delegates and superdelegates because these measures exist to maintain influence over the election process.

However, one large problem looms over the prospect of a national simultaneous primary system. That problem is the threat that states would still be able to exert control over the primary process and prevent a change to the rules. Many states like South Carolina and Nevada allow the state parties to set the date of their election. However, political parties in other states like New Hampshire have yielded their power to set the primary election date to the Secretary of State. In New Hampshire, the Secretary of State is required by statute to set the date of the primary before any similar contest. New Hampshire likes to go first because this guarantees large campaign dollars are spent on advertising and campaigning in state. This means that some states would probably reject the invitation to coordinate a nationwide single-day primary. Furthermore, the prospect of switching to a single system of open or closed primaries or caucuses would probably also fail because the states have been granted the power to decide what voting system citizens in that state will use. California voters would probably not want to abandon their closed primary/modified closed primary system any more than Iowa would want to abandon their caucus system. The states control much of the form an election takes on and thus it would be nearly impossible to develop a singular primary plan.

The Presidential primaries would look very different if the Electoral College was abolished and the political parties exercised exclusive control over how they were run. However, because the parties need states to administer elections and because the parties have ceded the power to set the dates of the primaries in some states, it seems unlikely that the parties would be able to administer a national single day primary.

So . . .

Abolishing the Electoral College would produce more push-back than the political parties have anticipated. States are wedded to their current systems. Furthermore, developing a new system to implement a national election would likely crumble quickly. In the words the late Justice Antonin Scalia, we may just need to “get over it.”