The United States of America has done more than any other single nation to make democracy the standard of legitimacy for governments. Even in nations that have no democratic tradition, the pretense of democracy is almost always there. In Iraq, then President Saddam Hussein (note the democratic title) made an effort to appear democratic and submit to elections – however fraudulent. In 2002 his government claimed he won 100% of the vote in a referendum calling on him to serve for another seven years (Saddam ‘wins 100% of vote’). As America contends with a rising China and a tumultuous Middle East our soft power remains a necessary component along with hard power in any vision that can realistically achieve our international aims. Quagmires in Iraq and Afghanistan, along with the impasse we are experiencing with Iran makes the limits of hard power all too obvious. When it comes to soft power, there is nothing more powerful than the strength of the American democratic tradition and the stability of our government. This was of course called into question in the 2000 election between Al Gore and George W. Bush. President Bush was elected despite having lost the popular vote. Americans were not the only ones disillusioned with the long and divisive process. International competitors such as President Vladimir Putin of Russia have exploited this. President Putin implicitly brought up the 2000 election when he criticized the Electoral College as a flawed system (Barry). Aside from needlessly making ourselves vulnerable to such foreign criticism which does real damage to our ability to influence other nations, the Electoral College hurts American citizens’ faith that they are in direct control of their own democracy. The Electoral College denies Americans, as a national electorate equal participation in Presidential Elections and risks making president someone who was not democratically endorsed by the American people, while its greatest advertised benefit, supporting federalism (Gregg 35) and the voice of the states (Gregg 35) is already addressed by the institution of the American senate (Chang 222). The best solution to this issue is adoption of the National Popular Vote (NPV) plan, which will tie the Electoral College results to the winner of the popular vote every single time while remaining more amenable to revision as necessary than a constitutional amendment would be.
The Electoral College was originally a compromise between small states and large states (in terms of population). The primary reason for the states forming a union were practical, not patriotic (Ward 866). The states would be vulnerable to foreign manipulation and intervention so long as they were autonomous political entities unable to guarantee a united front towards aggression.
The smaller states wanted each state to have equal say in the federal government; in line with how each member state has one vote in the United Nations General Assembly regardless of population (of course, I am ignoring the issue of the Security Council and the five permanent members). Today, the United States would not like it if India or China had more power in the UN than we did, just because each nation has several times our population.
More populous states were not happy with the notion of states which were much less populous and powerful than them from having equal influence on the federal government. Their feeling was that the more residents each individual state had (and hence, the larger the share of the entire nation) the more influence that state should have.
Reconciliation between these two divergent perspectives was reached in the Electoral College. The Electoral College awards each state a certain amount of electors. This is based on the number of seats the state has in the House of Representatives (which is based on population for the most part, though each state is guaranteed at least one representative), plus the state’s two Senate seats (Ward 866) which are not based on population. The fewest electors any one state can have is three.
Though the question of how much influence each state should have nationally is inherently a federal issue, states were given discretion as to how they would express that influence. Thus it was up to the states to decide how to allocate the electors (Chang 206). It does not necessarily have to be based on the popular vote of the state – rather, they could be chosen by the state legislature, for instance (Chang 206; Gringer 185).
The electors would meet to cast two votes for President each (Chang 209). Assuming a candidate got the majority of the electoral votes – today that would mean at least 270 Electoral Votes (Gringer 187) – as opposed to a tie or a plurality, that individual would become President and the runner up would become Vice President.
It was believed that a candidate would only rarely be able to get a majority in the Electoral College (Ward 866). When the Electoral College failed to give the majority of votes to any one state, the House of Representatives would elect the President among the three top candidates (Chang 207). Each state delegation would get one vote (Chang 207). This would be the ultimate concession to the small states since each state would be equal in this round of voting. However this only actually happened in 1824 when the House of Representatives chose John Quincy Adams over Andrew Jackson (Ward 866) despite the fact that Adams was second in both the popular vote and electoral vote (Ward 866).
Though most states award all of their electoral votes to the winner of the statewide popular vote – except for Maine and Nebraska (Gregg 34) both of whom employ a proportional allocation of votes based on congressional districts – this is at the discretion of the states ( Chang 206). The Electoral College was never meant to be the voice of the American people. In fact, Americans do not have a constitutional right to vote for President (Chang 206). It is widely known that we vote for electors as opposed to the President herself, but not even this indirect method is guaranteed us by the Electoral College (Chang 206).
The Electoral College today is an impediment because it risks putting in power someone who did not win the national popular vote. An example of this was the 2000 Presidential Election between Governor George W. Bush and Vice President Al Gore (Gringer 182). After the Supreme Court ruled in favor of the Bush Campaign, and Florida’s Electoral Votes were awarded to it, George W. Bush became our 43rd President, even though Al Gore received hundreds of thousands more votes nationally than George W. Bush did (Chang 218). This casts real doubts on our democratic system and hurts our aspiration to be an international model. We are the only nation in the world who implements such a scheme.
Another issue with the Electoral College is that it focuses the attention of Presidential Elections on swing states (Chang 222). Since candidates are looking for electoral votes and not popular votes, they largely ignore states they know they are either going to win or lose for sure (Chang 222-223). They only campaign in states that are close enough that they could go to either candidate – that is, the swing states. This can be interpreted as effective disenfranchisement of most American voters, and even most small states (Gringer 222-223), which are supposed to be the primary beneficiaries of the Electoral College!
The Electoral College is enshrined in our constitution (Chang 206) and would be very hard to remove (Chang 210). Especially since many small states would not be inclined to abolish an institution which is perceived as benefiting them and their support would be necessary in the senate. There have already been over 1,000 attempts at altering or removing the Electoral College (Gringer 184). The National Popular Vote (NPV) plan avoids this peril of the amendment process by working within the constitutional framework to ensure the winner of the national popular vote becomes our president in every single election (Chang 205).
As mentioned above, states decide how to allocate their electors and most states allocate them based on the popular vote of their state. This is not required though. There are absolutely no guidelines or restrictions on the federal level as to how they are allocated (Chang 206) (there are restrictions on who can be an elector, but not on how they are allocated to a particular candidate or candidates).
The NPV calls on individual states to allocate their electors based on the national popular vote. For instance, in 2000 if George W. Bush had won the popular vote in Texas, but lost the national popular vote to Al Gore, the Texan electors would have all gone to Al Gore if the NPV was in effect and Texas was a part of it.
The NPV will only go into effect once the total of electoral votes from the states in the compact meets or exceeds 270 (Gringer 187) out of a total of 538 electoral votes nationwide, constituting a majority. This way the states are only bound to the national popular vote if and when the popular vote winner can be guaranteed victory in the Electoral College itself (Gringer 187).
Some proponents of the Electoral College claim that small states would lose much of their influence under the NPV. There are two primary reasons for this. First, the fewest electoral votes any state can currently have is three regardless of population which gives small states a relatively larger influence. This and the fact that regardless of how much you win or lose in any state (excepting Maine and Nebraska) you still get the same amount of Electoral Votes, candidates are encouraged to campaign across the entire nation, as opposed to just focusing on certain regions (Gregg 35). This makes the President care about the entire country when she is elected, not just the narrow base which elected her.
In the beginning of our Union this would have been a convincing argument, since citizens primarily saw themselves as citizens of their individual state, as opposed to citizens of the United States of America. So people cared much more about their state interests being recognized in the federal government. Today, we see ourselves as Americans first. The election of the President should not be a decision that fifty states make, but one that all Americans as a unified people make. Each vote should count equally, regardless of what state any individual voter comes from.
To the extent that states or groups of states do have particular interests or needs (say the Gulf region in the aftermath of Hurricane Katrina) there is the United States senate which awards each state two senators regardless of population, and thus protects smaller states – it is this institution specifically which would make getting rid of the Electoral College by constitutional amendment so difficult. We also have a presidential primary system which focuses heavily on individual states and their concerns, including those of small states (Iowa and New Hampshire).
Beyond this, the Electoral College in practice primarily serves to give swing states disproportionate influence (Gringer 222). Small states that are not swing states are ignored even more than large states that are not swing states (Gringer 222-223). So the electoral college does not broaden the presidential campaigns to more of the country, it focuses them on certain states that are not necessarily representative of the nation as a whole (Chang 218).
There are other people who support getting rid of the Electoral College, but believe we should only do so by Constitutional Amendment (Gringer 182). This is because they feel there may be legal issues with the NPV (Gringer 197-223). Primarily that it disenfranchises minority voters who can be influential at the state level (Gringer 201), but not necessarily on the national level, and because this could amount to an interstate compact which the Constitution says requires congressional approval (Gringer 226). Lastly, the NPV may be a problem because it is not being well thought out on the national level (Gringer 227). Rather, it is going quietly from state to state without a real discussion (Gringer 227).
If the NPV hurts the ability of minority voters to select the candidate of their choice, so would a constitutional amendment abolishing the Electoral College. In any case, the popular vote and Electoral College have selected the same winner in all but four elections (Chang 216). The last election that this happened, in 2000 (Chang 218), the choice of racial minorities – Al Gore – won the popular vote and lost the Electoral College. So it seems that the minority vote could actually be more influential in the NPV, not the Electoral College. In any case, many states with large minority votes (such as California) have passed the NPV with the support of minority politicians. The courts have ruled in the past that election changes supported by minority legislators and not intended to disenfranchise minorities are okay (Gringer 202).
The Constitution does state that interstate compacts must be approved by congress, yet the Supreme Court has consistently ruled that interstate compacts do not require congressional approval so long as they do not infringe on the power of the federal government (Chang 214). Since the Constitution gives absolute authority to the states as to how to allocate electors (Chang 296), it is not an interference with a federal prerogative and thus should not pose any constitutional issues. Even if it did, passing the NPV and then seeing it struck down by the Supreme Court could create a major impetus for constitutional reform so no one who wants to see the Electoral College abolished is taking a risk by supporting the NPV.
The NPV and the ultimate aim of formally abolishing the Electoral College through constitutional amendment are not mutually exclusive. The NPV could actually provide a good testing ground and serve to show small states and other skeptics that there is nothing to fear from a popular vote, which could then make getting an amendment through the senate more realistic. If there are unforeseen consequences with the NPV, it could be altered much more easily than a constitutional amendment could be (which would require another constitutional amendment).
This flexibility on the part of the NPV is not unimportant, especially if we are to allay the concerns of people who see the stability of the American political system as having its taproot in the Electoral College. While the states can independently join the NPV compact, they can also independently leave it in the case that there are unforeseen circumstances. Though we have every reason to be confidant that a popular vote is the best alternative for the United States, we cannot rule out the potential need to make slight revisions. For instance, the Twelfth Amendment was ratified in the wake of the election of 1800 in which Thomas Jefferson tied in the Electoral College with his own running mate, Aaron Burr (Ward 866). This was a possibility that our Founders failed to account for. We should be humble and allow ourselves more flexibility.
Without doubt, the NPV is our best hope of redressing the inequities of the Electoral College while maintaining a reasonable means of revision that the states could undertake themselves. Until this plan is put into place, our political system continues to suffer. Though I doubt President Putin has very praiseworthy motives for attacking the Electoral College, we cannot commit ad hominem and allow the messenger to blind us to the seriousness of the claim. The electoral crisis of 2000 was not an anomaly, rather it may be a portent of things to come if we fail to act. If Senator John Kerry had won Ohio in 2004 he could have won the Electoral College and become President despite George W. Bush’s popular vote victory (Wisckol). In our most recent election between President Barack Obama and Governor Romney many commentators were speaking of the possibility that one candidate would win the popular vote while another president would electoral vote. Another possibility was that they might tie in the Electoral College and each receive 269 votes which would send the election to the House of Representatives where Romney would almost certainly be elected (Silver). If Obama won the popular vote in this scenario you could have a situation very reminiscent of 2000. The United States is a nation of laws, but that does not mean those laws should not evolve. Our greatness is premised on our ability resolve our weaknesses and faults within the system itself, without having to resort to measures outside of it. Our Founders did not give us commandments written in stone, rather they gave us a document and system which with the NPV in place can continue better give us in the words of President Abraham Lincoln, “government for the people, of the people and by the people.”
Barry, Ellen. Blunt and Blustery, Putin Responds to State Department Cables on Russia. New York Times. 1 Dec. 2010. Web. 2 Dec. 2012.
Chang, Stanley. Updating The Electoral College: The National Popular Vote Legislation. Harvard Journal On Legislation 44.1 (2007): 205-229. Academic Search Complete. Web. 2 Dec. 2012.
Ward, Elliot. Electoral College. Encyclopedia of the American Constitution. Ed. Leonard W. Levy and Kenneth L. Karst. 2nd ed. Vol. 2. Detroit: Macmillan Reference USA, 2000. 866-867. Gale Virtual Reference Library. Web. 2 Dec. 2012.
Gregg, Gary L. Unpopular Vote. American Conservative 10.12 (2011): 33-35. Academic Search Complete. Web. 2 Dec. 2012.
Gringer, David. Why The National Popular Vote Plan Is The Wrong Way To Abolish The Electoral College. Columbia Law Review 108.1 (2008): 182-230. Academic Search Complete. Web. 2 Dec. 2012.
Saddam ‘wins 100% of vote’. BBC News. 16 Oct. 2002. Web. 2 Dec. 2012.
Silver, Nate. New Polls Raise Chance of Electoral College Tie. The New York Times. 1 Oct. 2012. Web. 2 Dec. 2012.
Wisckol, Martin. Momentum Grows to Override Electoral College. The Orange County Register. 2 Nov. 2012. Web. 2 Dec. 2012.