Donald Trump’s election as president without a majority of the national popular vote has many Americans wondering about the continued usefulness of the Electoral College. In some quarters, the discussion is a substantive, nonpartisan examination of an elective device that prevents Americans from casting ballots directly for the presidential candidate of their choice. In others, it’s an exercise in sour grapes among those who didn’t get the outcome they were seeking. Arguments for reforming our presidential elections in favor of a direct popular vote predate the most recent election, of course. They were heard with particular force after the 2000 election, when George W. Bush also won the presidency despite losing the popular vote.
The Founders’ vision of how we should elect the president was in keeping with the premise of a shared-power relationship among the governments of the individual states. The Constitution describes a system—it never uses the phrase “Electoral College” itself—wherein each state is allocated a number of electors based on the number of representatives and senators “to which the State may be entitled in the Congress.” This means that the number of a state’s electoral votes varies with the Census taken every ten years. New York State in this decade has 29 electors. In the 1930s and 1940s, when New York’s population was a much higher percentage of the nation’s than it is today, the Empire State boasted 47 electors.
After establishing the formula for the number of electoral votes in each state, the Constitution empowers each state legislature to decide how its votes are distributed. Forty-eight states and Washington, D.C., use a winner-take-all system, whereby the candidate who gets the most votes gets all of the state’s Electoral College votes. Nebraska and Maine, the exceptions, distribute votes through a combination of the statewide popular vote and the popular vote in each of the state’s congressional districts.
The Constitution, therefore, allocates authority to conduct fair and consequential presidential elections not to the federal government, but to the states. Critics may lament that a single, unitary instrument doesn’t control our presidential elections, but for the Framers, this was precisely the point. By scattering election jurisdiction among multiple governments—13 states in 1787, 50 states plus the District of Columbia today—the Founders prevented one person, one branch, or one government from dominating and manipulating the election of the nation’s chief executive.
“A successful candidate for the distinguished office of President of the United States,” Alexander Hamilton wrote in 1788, would need to achieve the “esteem and confidence of the whole Union.” A direct popular vote would narrow the number of citizens whose votes the presidential candidates campaigned for. Candidates would focus their time, energy, and money on the most populated areas. By contrast, under our current system, presidential candidates seek the support of dairy farmers in Iowa, coal miners in Pennsylvania, seniors in Florida, and students in Colorado.
It’s no accident that many of the first states to ratify the Constitution in the late 1780s—Delaware, New Jersey, Georgia, and Connecticut—were the least populated. “Give the larger states an influence in proportion to their magnitude, and . . . New Jersey will never confederate on the plan,” said Garden State delegate William Paterson at the Constitutional Convention of 1787. “She would be swallowed up.” The same reasoning applies to the Electoral College.
The large-state/small-state divide remains the main reason why the current system will endure. There is zero chance that Congress will pass a constitutional amendment replacing the Electoral College with a direct popular vote. Fifteen states have populations smaller than Brooklyn; they won’t vote away their disproportionate influence in presidential elections.
In 2006, a nonprofit group began advocating for an interstate compact allowing states to allocate their Electoral College votes to the winner of the national popular vote. New York signed on in 2014, but, according to Governor Andrew Cuomo, the Empire State’s participation will only “take effect once enough other states have passed identical legislation to comprise a majority of the Electoral Colleges 538 votes.” Only 11 states totaling 165 electoral votes have so far enlisted, but even if Cuomo’s conditions were met, the National Popular Vote Interstate Compact would violate a provision of the Constitution: Article I prohibits states from entering “into any Agreement or Compact with another State” without congressional approval. The Constitution, in essence, doesn’t allow states to band together to nullify the electoral votes of other states.
Today, social media and the streets of some large cities are filled with protest signs about election results and electoral reform. Many of those now calling for the junking of the Electoral College never thought about the issue before last Tuesday; still, any serious conversation about the supreme law of the land can be constructive. We should be careful, though, not to confuse our complaints about the outcome with complaints about the process.
Photo by Mark Makela/Getty Images