Electoral College Should Be Replaced With a National Popular Vote

The 2016 Presidential Election rekindled the debate over the fairness and democratic legitimacy of the Electoral College system. Despite losing the national popular vote by almost 2.9 million votes to opponent Hillary Clinton, Donald Trump was declared the winner of the 2016 Presidential election due to his 304-227 Electoral College victory (New York Times, 2017). It is this said potential of producing a so-called ‘wrong winner’ that invokes much of the controversy surrounding the current electoral system, and as such sees many call for its replacement with a National Popular Vote as the main mechanism. Whilst the difficulty of amending the constitution has been the primary obstacle standing in the way of reform, such a system is still not without its own flaws (Gringer, 2008: 182). As such, investigation is required in order to assess the electoral system that would best promote, and not sacrifice, the core American values of democracy, liberty and tradition.

This essay will aim to outline the main points of such a debate, so that a conclusion may be reached both as to whether the current Electoral Collegiate system should be replaced, and if so, whether the National Popular Vote mechanism is the most suitable choice for its replacement. Starting with a general background and history of the Electoral College, this paper will then move on to assessing the merits and flaws of the current system, before investigating the potential benefits of replacement with a National Popular Vote. From this, we can then hope to draw a balanced and reasonable conclusion as to whether electoral reform should be mandated, and as to how this reform should present itself.

Origins and Background of the Electoral College System:

The method of electing the President and Vice President was the object of considerable discussion at the 1787 Constitutional Convention. As Max Farrand commented in 1913,

Whatever difficulties might have been encountered in other directions, they paled into insignificance in comparison with the problem before the convention of determining a satisfactory method of electing the executive (Farrand, 1913: 160).

Whilst some delegates favoured a national popular vote, most felt that individual citizens lacked sufficient knowledge of the characteristics of candidates to make an informed and reasonable decision. Additionally, with federalism and state's rights at the height of the agenda at the time, most delegates felt that it was up to the states to mandate how they voted for the President (Whitaker, 2001:1). Similarly, delegates from smaller states were worried that the elections would simply be dominated by a few populous larger states, and as such, it would be their issues that were given priority by the executive. This is an issue still relevant to the debate today.

In the end, the convention settled upon the compromise plan of the Electoral College system. Under this plan, electors appointed by the legislatures of each State would vote for the President and Vice President of their choosing. Whilst the provisions did not enforce the selection of these electors by popular vote, they did not forbid it either, and as such electors were chosen almost exclusively by direct popular choice in every state other than South Carolina since the beginning of the eighteenth century (Whitaker, 2001:2). These electors would be proportioned amongst the states by virtue of state population, but with each state receiving a minimum of three electors, this would go some way to alleviating the fears of smaller states as to big state domination.

In the end, whilst of course not a perfect system, it's fair to say that the framers likely did as good a job as possible at the time. Having to balance a myriad of competing interests, as well as considering the issues of the time that would have concerned candidate exposure to the public and the difficulty in widespread vote counting, the framers created a system that has so far lasted the course of the nation. But whether the contemporary system's survival is due to its merits, or simply the difficulty faced in amending it, remains to be seen.

In Favour of the College:

Opponents of the Electoral College system, and to some extent the majority of the left-leaning media publications in the US, would likely argue that there are no benefits to be found in maintaining the current electoral mechanism. Any system which has the capability to produce a winner who does not receive the plurality of votes is a system that is fundamentally flawed. Whilst this viewpoint is certainly a reasonable one, I would still argue that there are still a number of benefits associated with the current system that should at least be considered.

The first, is that the Electoral College does a good job of satisfying the key players in the American pillar of federalism, the States. It is important to not forget that most basically, the US exists as a union between formerly independent states, and as such the States can still be seen in some sense as individuals competing for power with each other within the Union. The proportional method of assigning each state electors based upon their population, with a minimum of three per state, achieves the difficult outcome of satisfying both the small and large states. The states with the largest populations still clearly hold the biggest say, but not to the point that small states are completely irrelevant or ignored. As Alexander Bickel wrote,

The Electoral College can satisfy, at once, the symbolic aspirations and distant hopes of the small states, and the present, practical needs of the large ones. Not many human institutions work out as artistically as that (Charles, 2002: 894).

Relative to the culturally distinct federal system of the USA, the Electoral College does a perfectly admirable job in this sense.

Secondly, the current system satisfies the need for certainty of the outcome of results soon after the close of an election very effectively. Primarily, the Electoral College protects against an ambiguous outcome, often providing a clear winner quickly even in close elections. An exception to this was of course the most recent 2020 election, where results took a number of days to come in, but that can perhaps be explained largely by the troublesome character of President Trump as well as the difficulties arising due to the COVID-19 pandemic (Sullivan, 2020: 5).

A direct election would likely require multiple rounds of voting, keeping the outcome of an election ambiguous for much longer. Additionally, at present, the recounting of votes is only required on a county or perhaps state basis, such as with the Florida recount that almost occurred in 2000 (Elving, 2018). Imagine the time and potential problems that would arise if a nationwide recount had to occur in a country the size of the US.

Thirdly, the Electoral College favours the two-party system, ensuring that candidates and parties have to flatten their level of support. Whilst not to say that third-party candidates cannot influence the outcome of elections, as Ross Perot famously did in the 1992 election (Burden and Lacy, 1999: 234), the winning requirements of the Electoral College system mean that a candidate must have widespread support from across the country in order to be successful. As a result, in the absence of a strong third party, candidates must flatten their support and try to represent the interests of individuals from all over the country, generally ensuring that the candidate with the strongest popular following will win the election (Charles, 2002: 894). Whilst of course this may reduce voter choice, it ensures that successful candidates are often seen to represent the wills of significantly larger portions of the country, which is much better for stability and legitimacy.

The final argument in favour of retaining the current mechanism, and perhaps the reason held by most that still support it, is faith in the Burkean style value of tradition. Edmund Burke talks of the value of tradition, and that the practical nature of the science of Government means that any institution which has performed successfully for a long period of time should be shown respect and altered only cautiously (Burke, 1790: 50). With the Electoral College performing largely successfully in its function of unambiguously appointing the executive since its inception, it is fair to say that it is an institution deserving of respect when in the discussion of its replacement. As Martin Diamond states, ‘we should preserve the Electoral College…simply on grounds of its nearly two century’s long history of tranquil popular acceptance’ (Diamond, 1977: 2). This is perhaps the most appealing and widely held reason for keeping the electoral system as it currently is; respect for the traditional institutions of the nation.

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Against the Current System:

Despite the above points, the Electoral College has unsurprisingly received much criticism, both popular and scholarly. Below, I will outline the major criticisms most commonly labelled against it.

The first, and most publically relevant, is the occurrence of the ‘minority winner’. In this instance, due to the mechanisms of the Electoral College, it is possible for the winner of the election to receive fewer popular votes than their nearest challenger but still win by virtue of Electoral College votes. Whilst admittedly a relatively rare occurrence, happening only 5 times in 55 elections since 1804, its simple existence could realistically be considered a problem. Can an election outcome truly be considered democratic if it does not accurately represent the will of the majority? (Whitaker, 2001: 6).

The second major objection is that the current system gives an advantage to the votes cast in smaller states and as such should perhaps even be considered unconstitutional. The guarantee of at least three electors afforded to all states at the 1787 Convention regardless of population can be said to favour the small states, as they cast, in effect, more electoral votes per voter. For example, in 1996, voters in Wyoming cast 209,250 votes for President or one electoral vote (Wyoming is allocated 3) for every 69,750 voters. By comparison, Californians cast 9,663,105 votes, or one electoral vote (California is allocated 54) for every 178,946 voters (Whitaker, 2001: 7). This as such could be considered to be undemocratic and to some extent even unconstitutional due to the ‘one person, one vote’ rule established in Reynolds v. Sims (1964). In this landmark case, the Supreme Court ruled that election systems should give equal weight to each vote cast, and as a result, it could be fair to argue that the current system does not do this (Reynolds v. Sims, 1964).

A further criticism involves the existence of faithless electors. Whilst electors are often appointed through state-wide popular votes, the Supreme Court ruling in Ray v. Blair (1952) made it clear that electors are under no constitutional obligation to vote for the candidate as indicated by the popular vote in their state, and so can technically vote for the candidate of their choosing (Ray v. Blair, 1952). This is clearly undemocratic, and to some extent could perhaps even be considered somewhat tyrannical, with faithless electors giving the potential that citizens votes could count for absolutely nothing in the election itself. Whilst admittedly this has been an incredibly rare occurrence throughout electoral history, the fact that there were 7 faithless electors in the 2016 election demonstrates that there is certainly a potential for major controversy (New York Times, 2017).

An additional criticism relates to the ‘wasted vote’ born out of the unit voting system. This criticism is essentially the idea that the winner-taker-all rule unnecessarily ‘wastes’ votes when compared to say a direct-vote system. Effectively, most states ‘waste’ votes when the unit winner wins by more votes than required, as these excess margins could then be used to make up the difference in units where the candidate has lost (Charles, 2002: 903). This is the major drawback of unit voting, as a direct nationwide-constituency vote would help to ensure fewer wasted votes.

A final, but admittedly rather defenceless objection, is that claim that the Electoral College system is simply too complicated for the average American to understand. As an ABA commission on electoral reform concluded, the College is ‘archaic, undemocratic, complex, ambiguous, indirect, and dangerous’ (Charles, 2002: 897). Opponents of the system would argue that the lack of understanding in the system reduces the legitimacy of any outcome obtained by it, as citizens are not truly aware of what they are voting for. However, Diamond argues that the idea of a ‘long-standing constitutional arrangement’ being undemocratic simply because it is complex is absurd. He goes on to ask,

‘If a kind of prissy intelligibility is to be made the standard for deciding what should remain and what should be simplified in American government, how much would be left in place? (Diamond, 1977: 14).

In this instance, it is hard to disagree with Diamond. How different realistically is the argument that the Electoral College system is illegitimate due to a lack of general understanding from the point advocated by the framers that average citizens did not have enough knowledge of the characteristics of the candidates to select an effective Executive. It seems to me to be somewhat of a contradiction.

The Case for a National Popular Vote:

The question, therefore, arises as to whether the benefits of the mechanism of a National Popular Vote outweigh the benefits of the current electoral system. The case in favour of adopting a popular vote is rather simple. Primarily, the system would remove any controversy surrounding the victory of a minority winner, as in this system it would become physically impossible. Promoting the ideals of democracy, the system would ensure that the candidate received a clear plurality of votes, more unambiguously representing the will of the people. Additionally, every vote would be seen to be of equal weight, removing the importance of the state in which it was cast (Whitaker, 2001: 16).

The growth in minor and third-parties that would almost certainly accompany such an electoral change could be seen to provide the voter with a wider choice, whilst a second-round ballot of votes between the two leading candidates would go some way to ensuring that the winning candidate still had to receive a significant margin of support to secure victory. However, opponents would also argue that such a growth in minor parties could lead to the destabilisation of the current two-party system and relative stability that accompanies it, and perhaps result in governance by less stable coalitions as seen in many parliamentary democracies (Whitaker, 2001: 16).

Furthermore, dispensing of the appropriating of electors to the states would severely damage the value of federalism that the country was founded upon. The use of a National Popular Vote would see the role of states become completely irrelevant in the election of the President, meaning that candidates need much less focus on the interests of citizens in the smaller more rural states, marginalising a significant proportion of the electorate. Additionally, the scale of time and organisation that would be required should the results be close enough that a recount be triggered would be exceptionally burdening on the country (Charles, 2002: 894).

Conclusion:

Whilst the Electoral College system certainly appears to exhibit enough flaws to convince me that reform would likely be beneficial, I do not believe the case in favour of a National Popular Vote is strong enough for it to present itself as the solution. Although the dispensing of victory by a minority winner is certainly a strong and appealing point in favour, it also appears to be the only such major benefit. At the cost of both tradition and the pillar of federalism that the country was built upon, I would argue that it is not worth it.

That is not to say that I am against partial reform of the current system in an attempt to fix some of the certainly visible flaws, just so long as it does not stray too far from its current model so as to lose popular acceptance (Diamond, 1977: 2). For example, the District Plan would preserve the Electoral College method of electing the President and Vice-President, with each state still proportioned the same number of electors. However, electors would be chosen by the winner of each individual congressional district, with an additional two 'senatorial electors being assigned to the winner of the state as a whole. This method would have the benefit of more accurately representing the popular vote, helping to reduce the likelihood of a minority winner, whilst still maintaining the Electoral College system (Whitaker, 2001: 17). It is the system already successfully utilised by Maine and Nebraska.

Additionally, a simple amendment mandating that electors must follow the electoral outcome of their voting unit would also completely irradiate the problem of faithless electors.

Despite the significance of this debate on the political landscape of America, I do believe it also important to put it into relativity. Since it was first introduced, there have been 752 proposals to enact constitutional electoral reform, with the ratification of the 12th Amendment in 1804 acting as the only successful attempt (Congressional Research Service, 2017: 4). Throughout history, attempts to enact electoral reform have proven almost impossible. Therefore, whilst this debate is certainly an important one, it may also be considered largely irrelevant due to the current political environment of the country. Instead, attempts for reform should perhaps be focused on more pressing, non-constitutional developments, for example in the realm of campaign finance, as this could provide equally important, yet realistic positive change.