*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.
Though democracy is something we have all grown up associating with the heart of the American spirit, in reality we are a republic because of our electoral college. Instead of a direct democracy wherein one person means one vote for an elected office, we do not go off of the popular vote alone. Instead we use a system wherein states have a certain number of electoral votes, and members of this Electoral College cast the actual votes for the presidency. This system is highly unfair and illogical, and there are strong arguments in favor of abolishing, or at least reforming, it.
The Electoral College is a means of indirectly electing the presidency and was established in Article 2, Section 1, Clause 2 of the U.S. Constitution. Because it is directly outlined in the constitution, it would be extremely difficult, and maybe even impossible, to abolish entirely. Abolishing it would require a constitutional amendment. The more easily available route to fixing the issues with this system would be reform at the state level, as they do have more control over how they select their electoral representatives.
There are 538 electoral votes in total. There is one for every House Representative and for each Senator, as well as three additional ones for the District of Columbia. This system already sets up less populous, often conservative states, up for an advantage> The senate, and the related electoral votes, means that smaller states get a say that can be as great as a more populated state.
The first reason the Electoral College makes no sense, is that it stacks the deck in such a way to allow minority rule. Although for the most part the number of electoral votes a state has is based on the size of the population, it is not an equitable distribution. For example, California has 1 electoral vote per 718,000 people, while Wyoming has one electoral vote per 193,000 people. This discrepancy between population size and their weight of their say in elections means that smaller states, which are generally the conservative ones, get to have a disproportionately large say in outcomes that affect everyone.
The next reason is that for all states other than Maine and Nebraska, we have a winner take all situation. What I mean by that is, even if one candidate won 55% of the districts and the other 45%, the one who got more would receive all of the state’s electoral votes. It would make much more sense if all states had a system like Maine and Nebraska, where electoral votes are cast district by district. Why should a candidate get to sweep an entire state if it is divided?
The final main reason is because there is no constitutional guarantee enforcing that electoral representatives have to follow the will of the people. There is something called ‘faithless electors’, which are representatives who vote against the wishes of the people that nominated them. In 2016 alone there were 7 such individuals. And when we are talking about a system where all it takes is the first to 270 votes, those faithless electors make huge difference. It is simply wrong, but is a persistent problem.
What is the argument for not allowing the popular vote to decide the presidency? Our current system favors the privileged. They are able to stack the deck in their favor and use the Electoral College, and other unfair practices around voting, to enable them to force their will. We must change this unfair system. Check out the next blog to hear more about how that might be achieved and the obstacles to doing so.