Voting out the Electoral College: Electing a President by Popular Vote

A 9% failure rate might be OK for some things in life, but you would not want to use a seatbelt if you knew that there was a 9% chance that it would not work the way it was designed to. They why does the United States use an electoral process that has that same failure rate in the election of our President? A voting system like the electoral college seems to work at first glance, but upon closer examination, it is clear this process includes faithless electors, underrepresented states, and a system that at times elects the loser of the popular vote; a system that is imperfect and needs to be changed.

To start to understand why the electoral college needs to be changed, you first need to know why the election of the president is decided by electors. When the Founding Fathers got together for the Constitutional Convention in 1787, some of them wanted only the white men who were educated and owned land to be able to vote. Others thought that the people should be able to vote directly for their representatives irrespective of their level of education or if they owned land. It was James Madison that took these two different points of view and came up with the compromise that both sides agreed with. It was decided, as it is written in Article II, Section I of the Constitution, that each state will appoint Electors how it chooses, and the number of Electors shall equal the number of representatives in Congress (“The Electoral College”). The persons who come to be President and Vice-President is decided by who gets the most Electoral votes. The trouble with a system like this, is that the Electors are not bound by any rules that say they must cast their vote for the person who won the popular vote in their state and they would then be Faithless Electors.

“Faithless Electors” is a term used to describe people that cast their vote for someone other than their party’s nominee (“Faithless Electors”). It did not take long for this new system to start showing its flaws. In 1796, a man named Samuel Miles, a Federalist, took the pledge to vote for his party’s candidate John Adams. When the time came, he decided to cast his vote for the Democratic-Republican candidate, Thomas Jefferson. Miles’s vote did not change the outcome of the election, but it came very close. Adams ended up winning by only by 3 electoral votes. This would be the only time an elector would vote for the opposing party’s candidate, but it would not be the last time someone would receive the title Faithless Elector by casting a deviant vote.

When a Faithless Elector casts their vote, it is called a “deviant vote”. Over the course of 224 years, there have been 90 deviant votes by electors. In 2004, an elector form Minnesota cast his vote for John Edwards, a Democrat, who ran against the eventual Democratic presidential nominee John Kerry in the primary elections (“Faithless Electors”). It was believed to be just a mistake. In 1960, Henry D. Irwin, a Republican, said he would not vote for Richard Nixon because he could not stand him. He even went as far as sending letters to other electors asking them not to vote for Nixon and offered an alternative vote for two Senators he had chosen. Irwin received a few replies to his letter, but his vote was the only deviant vote that year. 2016 had an abnormally high number of faithless electors with seven and ended with the case of Chiafalo v. Washington being argued in the Supreme Court.

In the 2016 presidential election of Trump vs. Clinton, there were ten attempted deviant votes across the states of Maine, Minnesota, Colorado, Washington, Texas, and Hawaii. seven of them were counted but what happened in Washington would lead to a four-year court case. Four electors that year, Esther John, Levi Guerra, Robert Satiacum, and Bret Chiafalo, decided that they were not going to vote for Hillary Clinton who won the popular state vote. Instead, John, Guerra, and Satiacum all cast their vote for Colin Powell while Chiafalo voted for Faith Spotted Eagle, a Native American activist (Kent). The reason was to encourage other electors to do the same and force the election to be determined in the House of Representatives. The state of Washington then fined all four electors $1000 each. Three of the electors challenged the penalties with the argument that it violated their First and Twelfth Amendment rights. In 2020 the Supreme Court give its ruling on the case. The court ruled 8-0 in favor of the state of Washington. Justice Kagan wrote the option for the court that said in the “absent some other constitutional constraint,” Article II enables states to penalize faithless voting (Kent). This ruling gave states the right to fine electors for casting deviant votes but there is still not much stopping it from happening. The only thing that would do that is to change the electoral college system and that can only be done by with a Constitutional Amendment.

Article II, Section 1 of the constitution explains how the electors, chosen by political parties in each state, are the one that elect the president. This was done to try to give each state at the time an equivalent say. A system like this makes sense when there are only thirteen states. But with fifty states and a total population of over 330 million people, the electoral college no longer gives every state an equivalent say. Because of this, presidential candidates spend their time in either states with a large number of electors like Florida and California or battleground states that could go either way. There have been a few challenges to change to a different system. The Bayh–Celler amendment, 1969, was a plan to have a two-round system were the party candidates that got the most votes won if they got at least 40% of the national popular vote (Crezo). It was filibustered on the Senate floor and then later pushed aside so the Senate could get other work done. Another attempt for change was in 2005 with the Every Vote Counts Amendment. It calls for the removal of the electoral college and would be replaced with a plurality of the national votes deciding the presidential election. The Amendment died in committee, but even if it did not, it would still have to be ratified by three-fourths (currently 38) of the state legislatures. In today’s political climate, and for the near future, that is not going to happen. Therefore, if you cannot change the constitution, you have to work around it. That is precisely what the National Popular Vote Interstate Compact (NPV) does.

In the United States we have had 56 presidential elections. Out of those 56 elections, five times the person who won the popular vote was not elected to office because they did not get the 270 electoral votes needed to win. This is a failure rate of 9%. This is not acceptable when choosing the leader of the free world. The National Popular Vote Interstate Compact, also known as NPV, would stop this from happening ever again. It solves the electoral college winner, popular vote loser problem by giving all the electoral votes of a state to the person who gets the most nation-wide votes (“National Popular Vote Interstate Compact”). For example, if Illinois is won by a Democrat but a Republican wins the national popular vote, that Republican would get all of Illinois electoral votes. At present the compact has been passed into law in sixteen states for a total of 196 electoral votes. If more states join the compact and the total number of electoral votes for those states is more than or equal to 270, the compact then goes into effect. From then on, the presidential election will be decided by the national popular vote and it would have been done so without the need to pass a constitutional amendment. Colorado attempted to make this same type of system into law with Amendment 36 in 2004 (Wagner). It did not pass by over three hundred thousand votes because it was seen as a way for Democrats to deny President Bush electoral votes and therefore a second term in office. But there are people that say the NPV is unconstitutional and that changing the way we elect our president with the electoral college ensures that some states go unheard.

The argument against the National Popular Vote Interstate Compact is that it violates the Compact Clause of the Constitution. The Compact Clause says that “No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State…” (“National Popular Vote Interstate Compact”). But the Supreme Court has said, in United States Steel Corp. v. Multistate Tax Commission, that “not all agreements between States are subject to the strictures of the Compact clause.” Until the NPV goes into effect and lawsuits start to be filed, this will remain unresolved. Some other reasons to not use a popular vote system is that it would mean the end of state caucuses and primaries and there would be no reason to have national conventions (Uhlmann). None of this would happen. Members of the political parties would still need to choose their candidate and all the political parties can still have national conventions to announce their candidate to the rest of the nation. The NPV would change none of this.

One of the stronger arguments against a popular voting system, like the NPV, is that it will, in some states, go against how that state voted or that it would hurt the rights of minorities (Diekemper). The first part of that argument is correct. A system like the NPV will go against the way the people of that state voted-sometimes. The only way around that is a constitutional amendment to change to a national popular vote. As far as the right of minorities being hurt it depends on how you look at it. One way of looking at this is since the founding of the electoral college system, thought the 15th amendment up to today, the right of minorities have always been hurt. This can come in the form of gerrymandering, voter ID laws, or restrictions on where to turn in their ballot. Every time a law is passed that makes it harder to vote, such as recently passed SB202, Integrity Act of 2021 in Georgia, that makes it a misdemeanor to hand out water to people waiting in line to vote among other things, it always hurts minorities more than anyone else. A national popular voting system will not make that any better, but it also will not make it any worse. Those adjustments need to take place on a state level. The NPV will just give people a direct say in who will lead the executive branch of the federal government. Another way of looking at it is that the minorities of today will not be the minorities of tomorrow. It is projected that sometime in the mid 2040’s, Non-Hispanic Whites will be in the minority (“Older People Projected to Outnumber Children”). If your political party is made up of a very large portion of Non-Hispanic White, this is a big problem for you and the NPV is going to do nothing to help with that.

To summarize, our existing system of electing a president with the electoral college has several flaws and very few redeeming qualities. You have faithless electors that are in no way bound to vote for the candidate of their political party, making them free to vote for anyone they wish for. To change the voting system so it is a more direct interpretation of the will of the people would require a conditional amendment. Getting both political parties to agree on the amendment and then get it passed by at least 38 states is not going to happen in the current political climate. The best work-a-round presently is the National Popular Vote Interstate Compact that gives electoral votes from member states to the candidate who wins the popular vote. The only flaw in the NPV is that, sometimes, electoral votes will go to the loser of the popular vote in that state. But even with this flaw, without a conditional amendment, it is the best system to let the people directly vote for who they want. In a country built on the idea of individual freedom, what could be more American than a person’s vote directly counting for the person they are voting for?

Works Cited

Crezo, Adrienne. “The First (And Last) Serious Challenge to the Electoral College System.” Mental Floss, 6 Dec. 2016, http://www.mentalfloss.com/article/13012/first-and-last-serious-challenge-electoral-college-system. Accessed 21 Mar 2021.

Diekemper, Noah. “Keep the Electoral College.” Intercollegiate Studies Institute, 28 May 2019, http://isi.org/intercollegiate-review/keep-electoral. Accessed 23 Mar 2021.

“Faithless Electors.” FairVote, 6 July 2020, http://www.fairvote.org/faithless_electors. Accessed 18 Mar 2021.

Kent, Andrew et al. “Chiafalo V. Washington”. Harvardlawreview.Org, 2021, https://harvardlawreview.org/2020/11/chiafalo-v-washington/. Accessed 29 Mar 2021.

“National Popular Vote Interstate Compact.” Ballotpedia, ballotpedia.org/National_Popular_Vote_Interstate_Compact. Accessed 28 Mar 2021.

“Older People Projected to Outnumber Children.” The United States Census Bureau, 10 Oct. 2019, http://www.census.gov/newsroom/press-releases/2018/cb18-41-population-projections.html. Press release.

“The Electoral College.” National Archives, 2021, https://www.archives.gov/electoral-college. Accessed 17 Mar 2021.

Uhlmann, Michael M. “As the Electoral College Goes, So Goes the Constitution.” The American Mind, 3 Nov. 2020, americanmind.org/memo/as-the-electoral-college-goes-so-goes-the-constitution/. Accessed 22 Mar 2021.

Wagner, David S. “The Forgotten Avenue of Reform: The Role of States in Electoral College Reform and the Use of Ballot Initiatives to Effect That Change.” Review of Litigation, vol. 25, no. 3, Summer 2006, pp. 575–602. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=aph&AN=21490219&site=ehost-live. Accessed 27 Mar 2021.

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