The age-old process threatens democracy in more ways than one.
By Brandon Wolf
Twice in the last 16 years, the LGBTQ community has lost the chance to put a strong ally in the White House due to the bizarre American system of electing presidents known as the Electoral College. In 2000, Al Gore won the popular vote, but was denied the presidency because of his Electoral College vote total. And now, in 2016, it’s déjà vu as Donald Trump heads to the White House even though Hillary Clinton got over two million more votes.
Clinton lost Michigan by 10,704 votes, Pennsylvania by 64,403, and Wisconsin by 22,177—for a total of 97,284. If her margin of support had been distributed differently in terms of geography, she could have won the Electoral College. Instead, .08 percent of the total voters decided who our next president would be.
The founding fathers—living in a totally different political culture 229 years ago—had valid reasons for their design of the Electoral College. Alexander Hamilton and James Madison, the two major architects of the system, envisioned a process with high ideals. But within 15 years, both men were extremely disheartened at what the system had become, and Hamilton introduced an amendment to overhaul it.
There are numerous problems caused by the Electoral College, but there are also solutions. America needs to abolish it and move to electing presidents by a direct vote of the people.
Understanding the Electoral College
To understand the Electoral College’s problems, one must comprehend how and why our country ended up with this system. To do that, we look back to the original 13 British colonies that later became the United States—New Hampshire, Massachusetts, New York, Rhode Island, Connecticut, Pennsylvania, New Jersey, Maryland, Delaware, Virginia, North Carolina, South Carolina, and Georgia.
British settlement started in America in 1607. The settlers were British subjects, and each colony was run by a royal governor who was appointed by the king. A colonial assembly in each colony advised and assisted the governor. The assemblies were comprised of men chosen by popular vote, from within districts.
The colonists elected their representatives by means of lively town-hall gatherings. They wanted “noble men”—those with worthy character, intellect, the ability to contemplate complex issues, and the gift of communicating clearly. Generally, these town-hall elections allowed “the cream to rise to the top.”
Most colonial men owned land, but few could afford books, newspapers, travel, or correspondence by horseback. Those who could were more knowledgeable and were admired by those who weren’t.
Each colony of British citizens was independently self-governed, and concerned mostly with its own issues. The British king at first ignored the early colonies, but by 1680, they were growing rapidly in population and wealth. The king found them to be a good source of tax revenue. He also limited their foreign commercial interactions.
When this royal exploitation became unbearable, a series of tax protests broke out beginning in 1760. By 1770, the colonies had slowly begun to form a shadow government.
In 1774, the First Continental Congress convened, with delegates chosen from the 13 colonial assemblies. They discussed a tax revolt now known as the Boston Tea Party, as well as the possibility of war.
The American Revolutionary War broke out in 1775. In July 1776, the Second Continental Congress met and drafted the Declaration of Independence. The new nation was called the United States of America, and it boasted a population of 2,400,000. The war ended in 1783.
By 1787, there was a desire to create an original American constitution, so a Constitutional Convention met in Philadelphia. One of the convention’s committees was tasked with developing a method to elect a national president.
The Electoral College Is Born
Hamilton and Monroe were the driving forces behind the presidential election process. Several ideas were considered: having the new U.S. Congress choose, having the state legislatures choose, or having a direct popular vote.
The first two ideas failed because they would make presidents beholden to the congressional members or state legislatures that elected them. The idea of a popular vote failed because it was feared every state would vote for a “favorite son” and the largest state would always decide the winner.
The southern states were concerned that slavery would be abolished by the new nation. Since that would have had a huge impact on the southern economy, every effort was made to assure those states that they would not be overpowered by the northern states.
What emerged was an indirect election of a president through a “college” of electors. Each state would be allocated a total of electors equal to their number of senators and representatives. These electors would then cast their votes for a president.
The convention had already designed the new U.S. Congress. A bi-cameral body would combine a Senate that gave each state equal power and a House of Representatives that would give each state power in relation to their respective populations.
The Senate would be elected by the respective state legislatures. The House would be elected by popular vote. The number of representatives a state received would be based on a census taken every 10 years.
In deference to the South, which had a large population of slaves who were considered mere property, the convention allowed for each slave to count as “three-fifths of a person” in the census.
The Constitution left the manner of choosing the electors and counting their votes to the individual state legislatures. The designers had no idea how enormously flawed this part of the design would become.
The electors would meet and cast two votes each. One vote had to be for a man outside their state. This was done to weed out the favorite sons.
The man receiving at least one more than half of the electoral votes would become president. The runner-up would become vice-president. An electoral tie would be broken by the House of Representatives, but with each state allowed only one vote in the balloting.
It was an elaborate design, but a clever one considering the history of the small colonial districts with active local participation, the economic realities of the day, and the need to persuade 13 formerly autonomous states to work together.
Hamilton and Monroe’s greatest miscalculation was believing that the spirit of district participation would continue as the norm. They envisioned deliberate, thoughtful local meetings where the finest men would be chosen as electors.
The Noble Dream Unravels Quickly
The design worked for exactly three presidential elections—1788, 1792, and 1796. Political parties had quickly sprung up, based on ideologies. The parties had the financial means to communicate between districts and create slates. Winning control of state legislatures, they put into place practices that benefited certain parties, such as winner-take-all allocation of a state’s electoral votes.
The states, given the power to decide how the electors would be chosen, utilized a variety of methods. Many of them abandoned the concept of districts, and used party appointments instead.
In 1800, Thomas Jefferson and Aaron Burr received the same number of electoral votes. The tie was resolved by the House of Representatives, but only after 36 rounds of balloting and some very unseemly political dealings to sway the vote.
Madison and Hamilton felt the elections they witnessed violated the spirit in which the Constitution had been written, and advocated for a constitutional amendment stipulating electors be chosen by district popular vote.
Hamilton introduced an amendment in 1802. It was used as the basis for the 12th Amendment, but the district requirement was gutted. The 12th Amendment was ratified in 1804. It merely changed the casting of ballots to one for president and one for vice-president.
The Evolution of the College
By 1804, states were showing a definite trend toward the winner-take-all approach in awarding electoral votes to a candidate, and by 1836 this was the universal practice. Using the power given the states to set their own rules, political parties hijacked Hamilton and Monroe’s noble plan.
Since the Civil War, all states have chosen their presidential electors for the Electoral College by popular vote. This process has been normalized to the point that in most states a candidate’s name appears, but it only represents a pre-determined slate of electors for that candidate. That slate is most often appointed by a political party, and electors serve as robots.
In 1913, the 17th Amendment mandated the election of U.S. senators by popular vote. And in 1961, the 23rd Amendment enfranchised the District of Columbia. Otherwise, the Electoral College still functions as it was first designed.
Debating the Electoral College
The most common argument for the College is that it prevents an urban-centric victory. However, 2015 population figures show the 50 largest cities make up only 15 percent of the nation’s population, while the top 100 cities make up only 19 percent.
There are many common arguments against the College, including the following:
• It awards the presidency to a candidate who does not win the popular vote: The one-person-one-vote principle is quite simply violated.
A 2011 computer simulation proved that a candidate with just 22 percent of the nationwide popular vote could win an election by winning a list of 39 specific states by a margin of just one vote. It’s improbable, but the fact it is possible shows the weakness of the current system.
The United States is the only country that elects an executive president via an Electoral College, and the only one in which a candidate can become president without winning the most popular votes.
• There is an exclusive focus on large swing states: Political campaigns focus on a few swing states. Four out of five voters in national elections are ignored by the candidates.
• It discourages turnout and participation: Except in closely fought swing states, voter turnout is largely irrelevant in states with entrenched political party domination. In contrast, a popular vote would give campaigns and parties a strong incentive to increase turnout, because every vote would count in determining a winner.
• It obscures disenfranchisement within states: The Electoral College reduces elections to a mere count of electors, and obscures voting problems within many disenfranchised communities.
• It disenfranchises U.S. territories: Puerto Rico, the Northern Mariana Islands, the U.S. Virgin Islands, American Samoa, and Guam cannot vote because the Constitution allows only states to participate.
• It favors less-populous states: The College gives undue power to voters in small states. A California voter has one-fourth the power of a Wyoming voter.
• It disadvantages third parties: The winner-take-all system greatly decreases the national power of minor parties that have formed for ideological reasons.
• It is not straightforward: The College is extremely complex and has the potential to override the people’s will at many points.
The Permanent Solution—Amending the Constitution
Amending the Constitution is a two-part process. First, an amendment must pass both houses of Congress by a two-thirds vote—or it can be proposed by a constitutional convention called by two-thirds of the state legislatures.
The proposed amendment must then be ratified by three-fourths of the state legislatures. The Congress may, at its discretion, limit the length of time for the state ratification to be completed.
The failed Equal Rights Amendment of 1972 was given a seven-year ratification time limit, followed by an extension of three years.
Over the last 150 years, various efforts have attempted to abolish the College. A 1934 amendment failed in the Senate by two votes. A 1970 amendment failed in the Senate by about a dozen votes. In 1979, the Senate killed yet another amendment 51–48.
Texas representative Gene Green introduced joint resolutions to abolish the College in 2004, 2005, 2007, and 2009. Representative Jesse Jackson Jr. also introduced a bill to abolish the College, several years in a row. Most recently, on November 15, 2016, Senator Barbara Boxer filed an amendment to abolish the College.
A Temporary Bypass Gains Momentum
The National Popular Vote bill is currently gaining support. It would guarantee the presidency to the candidate winning the popular vote. The plan is to enact the bill in enough states to equal 270 electoral votes.
The bill has been approved by 11 state legislatures. It mandates the state’s electors to vote for the popular-vote winner if that candidate does not win the Electoral College. The Constitution allows states to determine their means of choosing electors and casting votes, so the concept is constitutionally sound.
The compact would not take effect until enough states to equal 270 electoral votes have enacted the bill. Once active, the compact would have the same effect as abolishing the Electoral College. The U.S. would have a direct-vote system by default, because winning the popular vote would be the only path to victory for candidates.
The advisory board of the effort includes Republicans and Democrats. In 2014, Newt Gingrich signed a letter of endorsement.
Both parties share equally in the benefits of this proposed system. Close elections in battleground states can currently swing in favor of either Democrats or Republicans. In 2004, John Kerry nearly won the electoral vote but not the popular vote. In 2012, it appeared that Mitt Romney might also.
Moving to a direct vote would most likely encourage more participation in non-battleground states—more Democrats in Texas, and more Republicans in California and New York. The new president-elect proved this point when he told 60 Minutes in mid-November that he would have campaigned in New York and California under a direct-vote system.
What You Can Do to Help
Abolishing the College should become a national campaign issue just like freedom of choice, gun control, foreign affairs, and the economy.
The next big U.S. election is the 2018 midterms. The party not in power usually wins new congressional and state legislative seats. Candidates for office should be screened for their support of abolishing the College. If the midterms increase support, both the National Popular Vote bill and congressional amendments should be introduced and passed.
The 11 states that have enacted the popular-vote bill all voted for Hillary Clinton in 2016. If the other states supporting her enacted it, the electoral total would rise to 232, leaving only 38 more electoral votes needed for the compact to go into effect. The enacted bills could just as easily be undone by new state legislatures, so the bypass is still not the permanent solution.
Lane Lewis, a member of Houston’s LGBTQ community and the chair of the Harris County Democratic Party, responded to an OutSmart request for his thoughts. “Whether discussing the Electoral College, voting rights, or anything related to a representative democracy, we must always look to ensure that elections accurately reflect the will of the people. Arguably, things like the Electoral College, gerrymandering, voter ID laws, etc., too often interfere with the will of the many.”
On a post-election Bill Maher show, former U.S. Attorney General Eric Holder told Maher that the Electoral College needs to be abolished. Maher commented: “That is some heavy lifting.” Holder replied: “Then let’s lift heavy!”
Extensive information about the National Popular Vote bill is available at nationalpopularvote.com.
Disclaimer: The vote totals referred to in the article are based on election results as of December 1, 2016.
Brandon Wolf is a regular contributor to OutSmart magazine.