It’s Not Even Stealing: How the Electoral College Makes it Easy to Subvert an Election
In a true democracy, every vote counts and every vote counts equally. State and local elections in the United States operate in accord with this principle. But when it comes to electing a President every four years, the United States is decidedly not a democracy.
The Electoral College exists for the sole purpose of selecting the President of the United States, It is an arcane and idiosyncratic system — the one element of our vaunted democracy that no other nation has seen fit to copy. And no wonder. The Constitution contains no provision whatsoever that a President is elected by the votes of citizens. Consequently, five times in our nation’s history and twice this young century the Electoral College has deemed the winner to be the candidate with the second most votes.
How the presidential election process went off the rails is a cautionary tale. How to get it back on track is a puzzle for our time.
The Electoral College’s distortion of democratic principles is justified by the notion that it was the invention, if not the intention, of the venerated framers of the Constitution. However, the current system bears little resemblance to what the framers designed. The original scheme called for each elector to cast two votes to select from among a ballot of several contenders, with the top vote-getter becoming President and the runner-up, Vice-President. Many of these same framers were instrumental in amending the process in 1804, and made further attempts to rectify the system.
The main culprit of Electoral College distortion is the all-or-nothing apportioning of electoral votes — the product of machinations by individual states to amplify the power that the framers invested in them. The “unit rule” originated with Virginia. Recognizing with 20–20 hindsight that favorite son Jefferson would have won the election of 1796 had their electoral votes not been split, Virginia electors voting as a solid bloc to deliver him the Presidency in 1800. Other states followed suit by necessity, rather than allow their electoral votes to be outweighed by unit-rule states, with all but SC adopting the unit rule by 1832. (SC electors were chosen by the state legislature, rather than by popular vote, until 1868.)
Because of the unit rule, presidential elections are decided by a handful of swing states. Votes in most states, including three of the four most populous (California, Texas, and New York), now count for little, while votes in battleground states like Florida, Pennsylvania, and Wisconsin carry extraordinary weight. In so-called national elections, presidential campaigns are waged almost entirely in these battleground states. The majority of states, large and small, are virtually neglected; they are rarely visited by candidates, and see relatively few political ads. Political consultants advise their campaigns not to conduct national polls, but rather, to focus resources on the few states that will decide the election. Voters in swing states pay a price as well, as every vote for the losing candidates counts for naught.
George Edwards III, author of “Why the Electoral College is Bad for America” (Yale University Press), aptly describes the dilemma and its darker implications:
“Under the unit rule a few votes can change the outcome of an entire state, which may affect the national election result… Thus, the electoral college creates incentives for fraud because there may be a large payoff from stealing a few votes.”
The most blatantly undemocratic aspect of the Electoral College system is that it provides no assurance that a President will be elected by the citizenry. Quite the contrary, electors, not the voting public, choose the President. This enables political operators to steal an election by rerouting the decision from the votes cast in the 50 states and District of Columbia, to the halls of Congress. Technically, it’s not even stealing — it’s perfectly legal, enshrined in the Constitution.
Could the President of the United States be elected by the several hundred representatives in the House or a handful of Supreme Court justices, rather than the multi-million votes of the populace? In the great tradition of dealing with a crisis only with 20–20 hindsight, Americans appear untroubled by this prospect, assured that it can’t happen here, because…well, because it hasn’t happened yet. But in fact, it has.
Election of 1876
The Republican party had gone four for four, from Lincoln’s triumph in 1860 through Grant’s decisive reelection in 1872. The Republican nominee in 1876 was Rutherford B. Hayes, a compromise candidate who had finished no higher than fifth on the first four ballots at the national convention. The Democratic candidate was New York Governor Samuel J. Tilden, who had made a name for himself by confronting Tammany Hall corruption. Tilden won the popular vote by a quarter million votes (50.9% to 47.9%) and appeared to have a safe margin of victory in the Electoral College as well, having swept the South. However, the Republicans contrived to contest the electoral votes in three states — Florida, Louisiana, and South — and leave Hayes one vote short of the required majority. Not coincidentally, these were the three states in which federal troops were still posted to enforce Reconstruction, and Republicans retained control of state government.
As written in the Constitution, failure to achieve an Electoral College majority sends the election to the House of Representatives, with each state delegation receiving one vote. The House of Representatives opted to refer the decision to a bipartisan commission composed of 10 members of Congress (5 Democrats and 5 Republicans) and 5 Supreme Court justices. The congressional bill that created the commission identified 4 of these justices by name — 2 Democratic and 2 Republican — and left it to them to select the tie-breaking fifth. The obvious choice was the politically independent Justice David Davis, but his selection was scuttled when it was learned that the Democratic-controlled Illinois legislature had just appointed Davis to a vacant Senate seat. The justices turned instead to a quasi-independent Republican justice, and a straight-party vote tipped the scales to Hayes. When last-gasp maneuvering ensued, the parties resolved the matter with the Compromise of 1877. Hayes was granted his victory on the condition that he end Reconstruction and remove federal troops, while southern states agreed to respect the equal rights of blacks. Hayes kept his promise; southern states did not. (Adding irony to injury, the partisan maneuvering negated the votes of citizens in the election with the highest voter turnout ever, 82%. )
To guard against a reoccurrence, Congress passed the Electoral Count Act in 1887, which allows Congress to reject electoral votes that are not “regularly given.” Most importantly, the Act affirmed the authority of states to resolve their own disputes as long as they have a pre-election mechanism in place for doing so. Since enacting the Electoral Count Act, despite a smattering of irregularities over the years, Congress has never overruled a state’s electoral count.
Origin of the Electoral College
The Constitutional Convention of 1787 was convened to make improvements to the Articles of Confederation, in particular, by establishing a more robust federal government. A strong central government could enable the young nation to issue currency, pay off Revolutionary War debts, coordinate trade with other nations, and hold its own on the world stage. However, this would come at a cost: some sacrifice of the autonomy that the recently-liberated colonies now enjoyed as states. Approval of a constitution that gave more power to a national government was hardly preordained, since the Convention delegation included both proponents and opponents of federalism. Compromises were necessary to secure the support of small states, wary of being overpowered by more populous states, and of southern states, determined to fend off any threat of abolishing slavery.
The Constitutional Convention met in Philadelphia during the oppressively hot summer of 1787, made even more unbearable by shuttering the windows of the Pennsylvania State House to ensure the agreed-upon secrecy of the proceedings. The delegates first addressed the issue of selecting a President on Day 5, when they roundly defeated a proposal to have electors choose the President, assigning the role instead to the yet-undefined national legislature. This decision was reversed a week later. Another dozen inconclusive votes followed, as the delegates went round in circles throughout June, July, and August, advancing one plan after another, then circling back to reconsider and reject each one.
Direct popular vote was favored by three of the most vocal and influential delegates: James Madison, Gouverneur Morris, and James Wilson. Objections to this method cited logistical concerns of the day, which are no longer applicable: that the nation’s far-flung citizens would not know the candidates well enough to make an informed decision, and that accurate and timely polling across the 13 states would be prohibitively difficult. When the popular vote method was rejected, Wilson proposed as an alternative that voters in state districts select electors who would in turn cast votes for President.
Still lacking consensus as the Convention was drawing to a close, the delegates referred the matter to a Committee on Postponed Parts (a.k.a., the Committee of Eleven), which recommended the final version. Electors, to be selected however state legislatures chose, would be the ones to elect the President and Vice-President. Mirroring the “Great Compromise,” which established the two houses of Congress to split the difference between equal representation of states in the Senate and population-based representation of states in the House, the number of electors would equal the number of representatives and senators.
The two-elector bonus gave smaller states some extra weight in the Electoral College, an advantage that would increase over time. With the first national census, in 1790, the population difference between the largest state (Virginia) and smallest state (Delaware) was a factor of 12 to 1. The ratio is now 68 to 1. This, plus the rounding-up error that results from fixing the number of congressional representatives at 435, means that California, with a population of 39.5 million, is afforded 1 electoral vote for every 718,000 inhabitants, while Wyoming, with a population of under 600,000, is allotted 1 electoral vote per 193,000.
The Constitutional Convention made an even more momentous concession to small states to secure their agreement to the presidential selection plan. In the event that no candidate received a majority of electoral votes, the decision would divert to the House of Representatives under a one-state, one-vote formula that put all states on an equal footing. Given the Electoral College system as originally conceived, it was expected that this would commonly occur. There were no political parties as yet to winnow the field to one candidate apiece, and it was assumed (correctly) that several notables might vie to succeed Washington, the presumptive first president.
It was painfully obvious from the wrangling that characterized contested presidential elections after Washington that the Electoral College was not functioning as intended. The election of 1800, in which Jefferson was selected by the House of Representatives on the 36th ballot, was so fraught with intrigue and rancor that it precipitated the fatal duel between presidential candidate Aaron Burr and the man who thwarted his candidacy, Alexander Hamilton. The 12th Amendment in 1804 did away with the rule that the electoral vote runner-up served as Vice-President, but the Electoral College remained in place. Further efforts to reform the Electoral College system soon followed, but since the Constitution granted states full authority to select electors however they might choose, state legislatures would not relinquish this power and subsequent proposals to amend the Constitution were ill-fated.
Anomalies in presidential elections can have the effect of removing the popular vote from the equation, leaving the outcome in the hands of Congress (as in 1876) or the Supreme Court (as in 2000). The will of the people can be waylaid in several ways: (1) by state legislatures contesting the state’s vote, as discussed above, (2) by electors failing to cast their votes in accordance with the state’s popular vote, and (3) by third party candidates claiming enough electoral votes to deny the frontrunner the required majority. The first two could undermine the 2020 election.
There is no Constitutional guarantee that a state’s electors will be bound by the state’s popular vote. The Constitution specifies that each state appoints electors “in such Manner as the Legislature thereof may direct,” and that electors “vote by ballot” to choose the President of the United States. What has become standard procedure in most states is that, in marking ballots for the party ticket, voters are actually selecting a delegation of same-party delegates who are pledged — sometimes by law, sometimes implicitly — to cast their elector votes for the party’s candidates. Electors who fail to abide by that obligation are known as “faithless electors.”
Whether this constitutes a threat to democratic principles is a matter of debate. Robert Hardaway, in Saving the Electoral College: Why the National Popular Vote Would Undermine Democracy, (Praeger), asserts that “faithless electors have cast only 7 out of 17,000 votes cast in the past 150 years and have never come close to affecting an election.” While conceding that correcting this vulnerability would “ease anxieties,” he maintains it isn’t worth amending the Constitution for “so insignificant a reform.”
Edwards contests both his figures and his premise. From 1796 through 1896, electors failed to honor the popular vote in 8 presidential elections. Sporadic renegade action resurfaced half a century later, with a single elector failing to vote as obliged in the presidential elections of 1948, 1956, 1960, 1968, 1972, 1976. As While no harm was done in 1976, Edwards illustrates that the potential was there. If the razor-thin margins of victory in Ohio and Hawaii had broken in Ford’s favor, he would have been the apparent victor with an elector vote edge of 270 to 268. That faithless elector would then have deprived him of the required majority, allowing the heavily Democratic House to settle the matter in favor of Carter.
Cause for concern has only increased with recent elections. Robert Alexander, in presidential Electors and the Electoral College: An Examination of Lobbying, Wavering Electors, and Campaigns for Faithless Votes (Cambria) describes campaigns to dissuade electors from supporting their party’s candidate in 2000, 2004, and 2008. In the aftermath of the 2016 election, moderate Republicans initiated a Hail Mary attempt to persuade enough Republican electors to jump ship and deny Trump the victory. While this attempted coup floundered, the final electoral count affirmed a record number of faithless electors, depriving Clinton of 5 electoral votes and Trump of 2 votes. Congress allowed these votes to stand, while would-be faithless electors in Colorado, Maine, and Minnesota had their votes invalidated because of state laws that explicitly prohibited it.
Supreme Court decisions have modestly reduced, but not eliminated, the prospect of faithless electors subverting the will of voters. The Supreme Court in Ray v. Blair (1952) ruled that states may require electors, as a condition of appointment, to pledge that they will honor the outcome of the state’s popular vote. This decision resolved that states had the right to make the selection of electors contingent on a pledge, but did not address whether electors are free to vote as they choose, regardless. Around 30 states have adopted laws that instruct electors to vote in accordance with the popular vote, but only 15 of them specify a sanction, such as levying a fine or replacing the faithless elector.
The 2020 Supreme Court decisions in Chiafalo v. Washington and Colorado Department of State v. Baca upheld the right of states to sanction electors. Thus, Colorado was justified in replacing the two faithless electors, and Washington was justified in levying a $1000 fine against each faithless elector. But in the absence of state laws to reverse their actions, the 2016 votes of faithless electors in Washington, Hawaii, and Texas stood as cast.
Although not a factor in the presidential election of 2020, the most straightforward situation that can send a presidential election to the House of Representative is a third-party candidate garnering enough votes to prevent an electoral college majority. No third-party candidate has substantially disrupted a presidential election since Teddy Roosevelt in 1912, running as the Progressive Party candidate, finished second with 88 electoral votes. Still, the possibility remains. Strom Thurmond, running as a Dixiecrat in 1948, received 39 electoral votes and George Wallace received 46 electoral votes in 1968.
Third-party candidates can also deny the winning candidate a popular vote majority. Ross Perot did so decisively in 1992, winning 19% of the popular vote; while Clinton, with just 43% of the vote, enjoyed a 202-vote margin of victory over George H.W. Bush in the Electoral College. Even a small tally for a third-party candidate can leave the winner short of a majority. Some political observers have suggested that winning with less than a majority of the popular vote has implications for a President’s mandate to govern, but it didn’t deter Lincoln, who ascended to office with 39.8%, nor has it deterred Trump, with 46.1%. In fact, Presidents have won without a popular vote majority 4 times in the last 30 years, and 18 times in all. Although the matter is of little concern in a system dominated by two major parties, it could be resolved with ranked-choice voting.
Electoral College Myths and Rebuttals
Many arguments for retaining the Electoral College have been advanced. Some appear reasonable on the surface, some are exercises in sophistry, and some are patently frivolous, but all, in Trumpian fashion, persist through sheer repetition in the face of contrary evidence. Routinely proffered justifications are that the Electoral College (1) forces presidential candidates to conduct a national campaign, (2) protects small and rural states, (3) prevents large cities from dominating the election process, (4) ensure attention to states’ interests, (5) gives a voice to minorities, and that perennial favorite: (6) the Electoral College was the inspired brainchild of the omniscient framers of the Constitution. Claims are also made that the Electoral College promotes national harmony, safeguards federalism, and preserves the two-party system.
As Edwards explains in the preface to his book, his interest the Electoral College was sparked by the seemingly undemocratic process that decided the Bush-Gore election contest. His deep dive into the history, rationale and workings of the Electoral College led him to the alarming discovery that defenders of the Electoral College “never engaged in rigorous reality checking, provided systematic data to support their claims, or referred to the vast relevant literature on politics and elections [and] simply assumed their claims to be true.” Subsequent elections, 2016 in particular, reinforced his concerns and provided additional material for the current (2019) 3rd edition.
Edwards devotes 3 chapters (88 pages) to a rigorous analysis of Electoral College myths, dispelling them with meticulously researched historical accounts, hard evidence, and sound reasoning. No myth is more laughable than the contention that the Electoral College forces candidates to conduct national campaigns, which Edwards examines at length. Regarding the claim that small and rural states would be neglected by the popular vote method, it is hard to imagine they could be neglected any more than at present. Edwards presents data showing that over the five most recent presidential elections, 13 of the 30 least populous states were never visited by the presidential candidates, and 5 others were visited just once. Cities, like states, are selectively ignored because of Electoral College math. Edwards reports that, in the election of 2000, the campaigns ran no ads in 25 of the 75 largest media markets, and an insignificant number in another 10, while tens of thousands of ads ran in hotly contested areas. The data also belie the premise that presidential candidates would overly concentrate their attention on large cities. As Edwards points out, the 20 largest U.S. cities account for only 11% of the population. (In fairness, the 20 largest metropolitan areas comprise about 38% of the U.S. population.) And, because market size determines advertising rates,
“it does not cost more to reach ten thousand voters in Wyoming than it does to reach ten thousand voters in a neighborhood in Queens or Los Angeles. It typically cost less to reach voters in smaller communities because larger markets tend to run out of commercial time, increasing the price of advertising.”
Extolling the virtues of a 1979 Senate resolution calling for a constitutional amendment to replace the Electoral College with the national popular vote, former Republican presidential candidate Robert Dole projected that it would reform campaigning:
“While urban areas will still be important campaigning centers, there will be a new emphasis given to small states. Candidates will soon realize that all votes are important, and votes from small states carry the same import as votes from large states.”
Judith Best, a fervent supporter of the Electoral College, maintains in Choice of the People? that a presidential candidate must be responsive to state interests. Edwards counters by asserting that there are diverse interests within every state, citing as evidence the 14 states with one Democratic and one Republican senator, who cast legislative votes along very different lines. More to the point, Edwards argues that the President should not be responsive to the interests of individual states, but to the needs of the nation as a whole. It is problematic to govern otherwise. With Florida as a key swing state, foreign policy on Cuba may be shaped by the lingering resentment of Cuban exiles in Miami. Trump’s payback to Blue states is another case in point. As the pandemic struck, personal protective equipment was scarce in the Northeast where it was desperately needed, but readily available in the Heartland.
If not the current system, then what? Given the daunting hurdles required to abolish the Electoral College, several methods have been proposed to retain it, but distribute electoral votes more equitably.
District plan. The district plan is a straightforward rendering of representative democracy, with the electors selected by the qualified voters in each of various districts within a state. The “Father of the Constitution,” James Madison, asserted years later that that the district system was what the framers really had in mind, and went so far as to advocate in 1823 for a constitutional amendment to adopt it. The district plan was favored by many leading political figures of the day, including Thomas Jefferson and Alexander Hamilton (who agreed on little), John Quincy Adams, Andrew Jackson, Martin Van Buren, and Daniel Webster. But with a constitutional amendment required to make a change, state politics prevailed. As Edwards explains, “The dominant party in a state favored the winner-take-all system precisely because it distorted the popular will and allowed the majority to reap all the benefits of the state’s electoral votes.”
History has shown that the district plan would certainly have been subverted by what Edwards describes as “incentives for creative gerrymandering.” Both the name and the practice date back to the crafty drawing of a Boston congressional district by Massachusetts Governor Elbridge Gerry in 1812. Gerrymandering now distorts elections with astounding precision. Based on the gerrymandered congressional districts that were in place in 2012, Edwards concludes that a district plan would have delivered the presidency to Romney, despite his trailing Obama by nearly five million votes.
Proportional plan. The proportional plan calls for a state’s elector votes to be divided the same way that the state’s popular vote splits. The proportional plan would dramatically reverse the current trend of disproportionate attention to large, hotly-contested states. Candidates would have little incentive to pull out the stops to win a 15–14 electoral victory in Florida when the same margin of victory would come far more cheaply in a small state. It would also drive campaign number-crunchers batty, having to conduct polls in every state and then consult mathematicians to determine, say, that Kentucky is a lock to split 5–3, whereas Missouri could just as easily break 7–6 or 8–5.
The proportional plan would only be workable with a large increase in the number of electoral votes in play. Otherwise, rounding error would create irregularities. For the 7 states with the minimum number of electoral votes, a close popular vote contest would split the electoral votes 2–1; they might then become the new battleground states. The 5 states with 4 electoral votes would need to have a wildly uneven vote in order to split 3–1 or 4–0.
One consequence of the proportional plan — seen as a drawback by some and as an advantage by others — is that it would open the door to third-party candidates getting a share of electoral votes. Drawing a fraction of electoral votes from various states, a third-party candidate could deny an electoral majority to the major party candidates and tip a close election into the House of Representatives.
Automatic plan. A third approach to retaining, but reconstituting, the Electoral College is the automatic plan. It rarely figures into the debate because its modest objective — to eliminate faithless electors by requiring that a state’s entire electoral count automatically go to the state’s popular vote winner — would leave the Electoral College system virtually intact.
Alternative proposals are not only inadequate, but unfeasible. In the absence of a constitutional amendment, they would require every state to relinquish its constitutionally-given power to wield its electoral votes as it sees fit. A complete overhaul in the form of a Constitutional amendment, which would only require the approval of only 3/4 of the states, is more viable.
When all the pros and cons are considered, most scholars and political observers concur that the popular vote is the most equitable method for electing the president.
Popular Vote Movements
Gallup polls dating back to 1944 show long-running public support for replacing the Electoral College with the popular vote. Various polls have consistently shown approval ratings for a national popular election to be in the 60–80% range, with some mild waxing and waning in accordance with party ascendancy–until recently, of course. Soon after the 2016 election, a Gallup poll revealed that direct election of the President was supported by 81% of Democrats and 19% of Republicans.
Support for the popular vote has resided in Congress as well, but always with some opposition to scuttle the process. Hundreds of proposals to reform the Electoral College with a constitutional amendment have been introduced in both chambers of Congress. Congressional committees have held hearings on the topic on 17 occasions, and it has been debated in the full Senate on five occasions and twice in the House. Proposals were approved with a 2/3 majority twice in the Senate and once in the House, but never for the same amendment.
The movement made serious headway in the late 1960s under the stewardship of Indiana Senator Birch Bayh, who as chair of the Senate Judiciary Committee successfully negotiated both the 25th amendment (concerning when a President is unable to discharge the duties of office) and the 26th Amendment (lowering the voting age to 18). Then-President Nixon supported the proposal. Nixon had won the electoral vote handily in 1968, despite leading Humphrey by less than 1 percent of the popular vote, but the third-party candidacy of George Wallace that received 46 electoral votes from the deep South might have denied him the required 270. Nixon was also aware that he could have claimed a popular vote victory in 1960. Kennedy was credited with a historically-slim edge, but the national count was obscured by a peculiar way of tallying the votes in Alabama, where electors, rather than presidential candidates, were listed on the ballot. The Congressional Quarterly, reanalyzing the results, called the popular vote in favor of Nixon.
The 1969 constitutional amendment to adopt the national popular vote sailed through the House with bipartisan support. The Senate version had 39 sponsors — 29 Democrats and 10 Republicans, and was favorably sent to the floor by the Senate Judiciary Committee with an 11–6 vote. The measure was favored by a majority of senators and political analysts projected that it would win approval in the required 3/4 of state legislatures. Yet, the proposal died in the Senate, undone by a filibuster of southern state senators who, by Edwards’ account, “were trying to preserve the old order against any further national influence” in an era of civil rights reforms.
There has been no viable effort in Congress since then to amend the Constitution. Yet, the popular vote movement lives on in the form of an ingenious method that does not require a constitutional amendment.
National Popular Vote Compact
Jesse Wegman, in Let the People Pick the president: The Case for Abolishing the Electoral College (Macmillan), chronicles the campaign to supplant the Electoral College through a multi-state agreement to honor the national popular vote. Wegman credits the idea to Dale Read Jr., who published a law review article in 1976 entitled, “Direct Election of the President without a Constitutional Amendment: A Call for State Action.” Read proposed that the popular vote would prevail if enough states to constitute an Electoral College majority agreed, prior to the presidential election, to cast their electoral votes for whoever wins the national popular vote.
The plan found a champion in John Koza, a computer scientist who early in his career co-founded a company that promoted state lotteries and developed the rub-off instant lottery ticket. Struck by the importance of the issue, Koza turned his full attention to the cause of abolishing the Electoral College and teamed up with Barry Fadem, a lawyer specializing in campaign and election law, to form National Popular Vote, Inc. (NPV). Koza and Fadem have traversed the country making presentations to state lawmakers, garnering support with the self-evident argument that the Electoral College renders their states politically irrelevant.
NPV provides the legislative language for the “Agreement Among the States to Elect the President by National Popular Vote,” an airtight interstate compact that would become effective in participating states only when it is enacted by states that collectively comprise a majority of electoral votes. To date, 15 states and the District of Columbia — all with Democratic majority legislatures — have signed on, bringing the prospective electoral vote total to 196, just 74 short of the target. The NPV compact was making inroads with Republican lawmakers as well, especially after the 2012 election in which the Electoral College magnified Obama’s margin of victory, but the 2016 election brought that to a halt.
Koza is the lead author of the NPV publication, Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote, an encyclopedic resource on the history and impact of the Electoral College and the efforts to circumvent it with the NPV compact — available in paperback and free online. Now in its 4th edition (2013), over half of the 775 pages of text are devoted to the chapter on myths about the Electoral College and the NPV compact. Koza enumerates, analyzes, and debunks each of 131 myths, ranging from 9.1.1 (“A federal constitutional amendment is necessary for changing the current method of electing the president”) to 9.40.1 (“The National Popular Vote compact is not perfect”). Covering much the same ground as Edwards, Koza rebuts the usual arguments for retaining the Electoral College (e.g., protection of small states, influence of big cities, preservation of the two-party system) and fends off every conceivable criticism of the NPV proposal (e.g., that is would favor one party, escalate campaign spending, undermine federalism, foster extremist candidates, and be susceptible to mob rule or election of a demagogue).
Koza’s defense of the NPV plan does falter, however, on one point: whether the interstate compact would be vulnerable to countermeasures and intrigue. Could Texas, foreseeing an election in which the Electoral College math might foil a favored candidate’s popular vote win, enact the NPV agreement by the July 20 lock-in date and activate the compact just for that election? Might a state thwart the NPV compact by implementing the practice of listing electors rather than candidates on the ballot, as Alabama did in 1960, making it impossible to tally the national popular vote? Koza does not deny the possibility of such maneuvers, but dismisses them as statistically unlikely and as “parlor games devoid of any connection to political reality.”
He applies the same reasoning in dismissing the threat of faithless electors, contending that electors would willingly rubber-stamp the nationwide choice, just as they have always rubber-stamped statewide choices. That was then (2013); this is now.
Hardaway’s book in defense of the Electoral College is an explicit rebuttal to Every Vote Equal, which he calls “a manifesto. (Hardaway similarly reveals the extremism of his political beliefs with his references to “Russian-style direct election” and “Russian-style popular vote.”) Hardaway argues that a 51-jurisdiction national recount would be unfeasible, as seen by the difficulties encountered in Florida in 2000, and fraught with chaos and inconsistency. Any state could assert that an accurate recount — adjudicating every challenged vote, absentee ballot, and precinct irregularity — could not be concluded by the mid-December federal deadline. Hardaway even suggests that states could refuse to conduct a recount on statutory grounds.
The Heritage Foundation, a conservation think-tank, takes aim at the NPV proposal with a May 2020 issue brief, “How the Electoral College Protects and Nurtures Our Republic,” by Bradley Smith, a former chairman of the Federal Election Commission and co-author of Voting Rights and Election Law. The brief is riddled with inconsistencies (for example, faulting the NPV plan because it enables a candidate to win with only a plurality of the popular vote) and data-defying logic. Smith maintains that the Electoral College system “requires a President to campaign all across the country, to accommodate a wide variety of lifestyles and subcultures” and that it aims to create “ruling majorities that are respectful of minority interests and values.” (As evidence to the contrary, Edwards makes the case that the Electoral College facilitated Trump’s election by the country’s dominant social group, white male Protestants, despite faring poorly with many demographics: African Americans, Hispanics, Asian Americans, Jews, Muslims, women, younger voters, college graduate, and urbanites. Trump’s subsequent hostility to the interests of these groups hammers the point home.) Smith also raises the canard of voter fraud, arguing that the Electoral College reduces the risk because “[t]here is no value in encouraging fraud in states that a party is likely to win anyway,” whereas, with the popular vote “every fraudulent vote anywhere in the country will have value.”
Smith’s most ardent criticism of a national popular vote is that it is “at odds with constitutional principles.” Elevating the framers’ compromises to the status of driving principles of democracy, Smith advances the idea that the Electoral College is one of a number of “anti-majoritarian” devices — presidential veto, equal representation of states in the Senate, judicial review, the Bill of Rights — that “protect minority rights against a triumphant majority.” Edwards makes the distinction between those constitutional provisions, which allow a minority to prevent an action from going forward, and the Electoral College that enables a minority of the electorate to impose its will on the majority.
The only unassailable reason to champion the Electoral College is the one that defenders dare not advance: that it creates an unfair advantage that favors the party that is currently in power.
The possibility that the Electoral College system might misfire spectacularly will be with us for the foreseeable future, and looms heavily over the upcoming election.
What sets the United States apart from the autocracies and banana republics of the world is not the presence, so much as the scope, of corruption. It is difficult, but hardly impossible, to corrupt the process. (The exceptions are no secret: the suspect Cook County/Chicago tally that delivered Illinois’ electoral votes and the 1960 election to Kennedy; Florida’s removal of thousands of eligible voters from the rolls to favor Bush in 2000.) This November, however, we will be one of “those countries” where the election is untrustworthy and vulnerable to manipulation. Voting machines in many states have no paper record to safeguard against hacking. Virus-avoidant mail-in voters will be uncertain whether their votes will be counted. In-person voters may face intimidation and violence.
Accentuating these concerns, federal government institutions have eroded to the extent that they threaten, rather than protect, democratic principles. To wit, within the past five years:
· a President’s right to nominate a Supreme Court justice was undermined by a Republican Senate majority;
· foreign interference in a national election was invited and facilitated;
· the President and, by tacit support, the party in power have perpetrated an assault on the free press, with any criticism of government disparaged as fake news;
· the Supreme Court opened the door to renewed voter suppression;
· an impeachment process took place in which the President was allowed to forbid government officials from testifying and deny access to relevant government documents; and
· the attorney general is guided by partisanship and loyalty to the president, in frequent conflict with rule of law.
In light of the wisdom we attribute to the founders and framers, no words are more prescient that those of Virginia’s George Mason (one of three delegates to the Constitutional Convention of 1787 who refused to sign the proposed Constitution because it did not include a bill of rights): “From the nature of man we may be sure that those who have power in their hands will not give it up while they can retain it.”