The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Every once in a while, we talk about the Electoral College. Usually we do so because someone has decided they would have a better chance to win the presidency if we reformed the presidential election system in some way. If at first you don't succeed, change the rules. As President Obama was cruising to reelection in 2012, it was Donald Trump declaring that the "electoral college is a disaster for a democracy." Now it is the Democrats who have decided the Electoral College needs to go. The "blue wall" is dead! Long live the national popular vote!
Sen. Elizabeth Warren has been busily rolling out proposals to dramatically remake the American economy, society and government. At a CNN town hall, she declared that we need "to get rid of the Electoral College." In a giant non sequitur, she tied Electoral College reform to voting reform and ballot access to make sure every "vote gets counted." Somewhat more plausibly, she noted that the Electoral College fosters battleground states that garner the lion's share of attention and that candidates should instead take the view that "every vote matters," even those in safe states. On this she echoes the arguments of many Democratic activists who have recently been touting the national popular vote as a way to deemphasize the importance of swing states like Ohio and Florida. Jamelle Bouie was more honest in simply noting that the Democrats have recently performed better in the national popular vote and could expect to control the White House more often in the near future if we scrapped the Electoral College.
This has spurred a predictable response from Republicans. Sen. Marco Rubio declared the Electoral College to be "a work of genius." Others have pointed to it as a key bulwark against "pure democracy."
Let's not go crazy. The Electoral College was a ramshackle device that sealed a compromise that allowed the delegates in Philadelphia in 1787 to agree on a new constitutional framework to replace the failing Articles of Confederation. It never worked as expected. It has been abandoned everywhere else it has been tried. And it has some truly horrible features that should have been reformed long ago. Nonetheless, the Electoral College has some modest virtues, and the national popular vote has its own drawbacks.
The last time someone contended that the Electoral College protected us from pure democracy was in November of 2016 when a bunch of Democratic Party activists tried to overthrow two hundred years of settled constitutional practice and democratic norms by lobbying Republican presidential electors to stop Donald Trump from being recognized as the legitimately elected president. The so-called Hamilton Electors badly misread both the founding-era debates and American constitutional history.
The founders thought we needed the intermediary of presidential electors not because they thought the alternative would be pure democracy, but because they thought that in the absence of electoral campaigns and mass communication the people would be unlikely to come to any agreement on a single individual to elevate to the one national office of chief magistrate. But as soon as George Washington had served his time in the White House, political parties coordinated the vote around a narrow set of national candidates and presidential electors were reduced to being nothing more than the mechanical arm of the electorate. As 2016 reminded us, the existence of living, breathing presidential electors is a dangerous flaw in the constitutional system that can create only mischief. A sensible constitutional amendment would simply excise the office of presidential elector.
The Electoral College scheme also comes with the little noticed provision for what happens if no one wins a majority of the electoral votes. At that point, the members of the House of Representatives, voting by state, chooses a president from the top-three candidates from the general election. The good news is that Gary Johnson would have been in the mix had that contingency been needed in 2016. The bad news is that the country probably would have gone even more bonkers. The constitutional drafters thought Congress would often have to pick a winner from a crowded presidential field. Political parties have made that largely unnecessary. But the possibility that Congress might ever be called upon to choose the president is not a reassuring thought.
But, alas, Senator Warren did not have either of those features of our presidential selection in mind.
The more meaningful feature of the Electoral College is its allocation of electoral votes among the states. The Electoral College mirrors the "federal ratio" of representation of Congress. The compromises that had been hammered out among the competing interests in creating Congress were just carried over to the selection of the president. This could have been done more naturally by letting Congress pick the president, but the founders worried that such a president would not be independent enough and Congress would become too tempting of a target for corruption. The Electoral College could serve as a temporary Congress.
It is no surprise that proposals to get rid of the Electoral College come alongside loud complaints about the design of the U.S. Senate. Both give greater weight in national deliberations to the interests of the small and rural states. Warren implied that without the Electoral College presidential candidates would pay more attention to Mississippi, which won her applause at her town hall in Jackson, Mississippi. In truth, they would pay more attention to California, New York, and Texas — big states with lots of individual votes but not currently in play if we are focused on plurality winners in individual states. Mississippi, as well as other small states like Wisconsin and Iowa, will be an afterthought.
How one feels about the Electoral College really depends on how one feels about giving more power in national politics to the voters of the state of California and to large urban centers like New York City and Chicago. Unsurprisingly, the Democrats currently think that would be great. But we should think about more than short-term partisan advantage when thinking about constitutional rules. Should we prefer that presidents assemble coalitions of supporters dispersed throughout the country, or is it enough that they can tap into deep wells of support in particular parts of the country? Is politics better if large, purple-hued, swing states play an outsized role in presidential contests, or would we be better served by a politics in which presidential candidates cater to their base?
And we should not underestimate the changes that would be wrought in how we organize politics if we abandon our current way of doing things. Early party primaries in small rural states like Iowa and New Hampshire have their virtues if candidates are launching a marathon of state-based campaigns. If the winning candidate will instead need to assemble a national popular vote, then parties will need to alter the process by which they select candidates so as to be best positioned for the general election. If we will be counting a national popular vote for president, then we really need a national set of election laws and regulations rather than the patchwork quilt of state laws that we use now. If every vote matters, then we might not need to spend so much of our attention arguing over ballots in Broward County, but we might need to be prepared to deal with the new incentive to shade the vote count in every county in the Union.
The Electoral College is a creaky system that we would be unlikely to adopt if we were drafting a constitution today. But it makes a modest contribution toward moderating and nationalizing our politics, and it has the advantage of being familiar if not necessarily loved. We could do worse.