The Future of the Electoral College After 2016

Donald Trump was the fifth in a list that includes John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), and George W. Bush (2000). And Trump lost the popular vote by a significant margin — almost three million votes. The fact that this divergence of the popular vote and the Electoral College vote has happened twice in the last 16 years has generated a critical debate about the Electoral College.Some have argued that overriding the popular vote by a college of wise electors was the intention of the Framers of the Constitution (where the Electoral College is laid out in Article II). But modern electors do not have the discretion to override their state voters and are bound to elect in the way the popular vote has gone in their states. And as Jack Rakove has explained in this unit, the intention of the Framers was not to overrule the people but to create unity in case of a large number of presidential candidates splitting the vote a dozen ways. This has not been a problem since 1794 when two great political parties began to dominate American politics — the Democratic Party and the conservative (Federalist, Whig, and then) Republican Party. So, whatever the Framers intended, the Electoral College does not seem to function the way they may have wanted.Two-thirds of the American people in poll after poll favor eliminating the Electoral College. People have a hard time justifying the idea that every other federal or state official is elected by popular vote except the most important office — the president. But the people do not change the Constitution; their representatives do by amending it. First, they must pass the amendment by a two-thirds vote of each chamber of Congress and, second, by a three-quarters vote of all of the state legislatures.Presently, it is difficult to see where those votes would come from. In 2012, many Republicans were in favor of abolishing the Electoral College because they believed that President Obama’s reelection had been favored by what has been called the “blue wall” of the Electoral College. They argued that there were 18 eastern, midwestern, and western states that had voted Democratic in every presidential election since 1992, giving the Democratic candidate a wall of 242 electoral votes of the 270 necessary. By contrast the Republicans have 13 solid red states they could count on, but these only amount to 102 electoral votes. Thus, some argued the Republicans were going to face an uphill struggle compared to the Democrats in the future, and it might be a good idea to get rid of the electoral system. However, in 2016, Donald Trump narrowly won three blue wall states — Pennsylvania, Michigan, and Wisconsin — creating some doubt about the idea of a “blue wall.”Because of the Trump victory, Republican legislators have backed away from the notion of abolishing the Electoral College, while most of the support for its elimination is on the Democratic side. After all, Republicans also know that they have historically had the advantage in the Electoral College, as all five losers of the popular vote who won the electoral vote have been Republicans or the conservative equivalent. Interestingly, former President Trump has been on both sides of this issue. In 2012, he was against the Electoral College, calling it a “disaster,” when he thought it had favored President Obama’s reelection. Right after his victory in 2016, he proclaimed the Electoral College a very good idea. However, in April 2018, he again suggested that he would be in favor of abolition of the college, because he claimed that the popular vote would make it easier for him to win reelection. As with most politicians, he is not thinking to abolish the Electoral College because it is an obsolete institution that is distorting the will of the people, but whether abolition will give him or his party a strategic election advantage immediately. And that has been the problem.The Electoral College will not be abolished soon. It takes years to go through the process of amending the Constitution. There is, however, another solution afoot that might lead to the practical abolition of the Electoral College without amending the Constitution — at least right now. It is called the National Popular Vote Project, a movement that was founded in 2004. This project depends on state legislatures changing the way they award their electors. While the Constitution directs presidential election by Electoral College, it does not indicate how states can allocate votes to the Electoral College. Forty-eight of the 50 states use a winner-take-all electors system based on the final vote of their state. They could change that decision.The advocates of this project ask states to pass legislation that would award all of their electors to whichever candidate wins the national popular vote, rather than their own state vote. The goal is to get states with an accumulated 270 electoral votes to adopt this system, thus forcing the popular vote. Advocates reason that if this interim step is taken at the state level, Congress will have no choice but to go along with the practical reality of the popular vote being the decisive factor in future presidential elections, and thus amend the Constitution. So far, 10 blue states have passed legislation to join the National Popular Vote Project; 12 other states have taken up the matter but have not passed the necessary legislation to join the project.

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