Donald Trump became POTUS because of the electoral college. But why does the US use this system anyway?

By Matt Blitz

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On December 13, 2000,  Vice President Al Gore conceded the presidential election to Governor Bush. A day earlier, a lengthy and expensive manual vote recount process in Florida was stopped by the United States Supreme Court despite Bush leading by only 537 votes. With Bush winning the state’s 25 electoral votes, it gave him 275 electoral votes and put him over the needed threshold.

This election result was highly unusual, not just because of Supreme Court decisions and hanging chads. It was also only the fourth time in United States history that a candidate had garnered a majority of the popular votes but lost the election- Gore received 50,996,582 votes and Bush 50,456,062. Bush won because of the Electoral College system – a much maligned and complex way of determining the future leader of America. How does it work? Why does America use the Electoral College? Why isn’t a simple vote count good enough to determine the president of the United States of America?

To begin with, contrary to popular belief, when Americans go to the polls to seemingly vote for the next president of the United States, they are, in fact, not actually voting for the president. Rather, they are casting a vote for a group of electors who will then vote for the president as they see fit. To reduce any chance of confusion, rather than having people explicitly vote for electors on the ballot, the presidential candidate a given group of electors is pledged to vote for is put on the ballot instead.

Another common misconception about presidential voting in the United States is that the president is elected once the general public’s votes are tallied up. Again, because the general public does not technically vote for a president, but rather on which Electoral College representatives will get to vote for president, the president isn’t officially elected until the following January. Specifically, on January 6th the current vice president opens voting during a Joint Session of Congress. It’s during this session that electoral votes are tallied, with the deadline for those to be submitted being in late December. This may seem to be something of a technicality, but there are many completely legal scenarios in which a different president may be chosen than the one who appears to have won after the general public has cast their ballots for electors. (More on a couple of these scenarios in a bit.)

So who are these voters that actually elect the president and how are they chosen? There are only two federal laws that pertain to who can be an elector. The first one comes from Article II of the Constitution, which states that “no Senator or Representative, or Person holding an Office of Trust… shall be appointed an Elector.” The second is a provision buried in the 14th amendment that says any state official that was involved in an insurrection or rebellion against America is also barred from being an elector. (You can thank the Civil War for that one.) Beyond those two restrictions, anyone can be an elector.

As for who ends up being an elector, that depends on the political parties and how a given state legislature sets the method of selection. But in a nutshell, each state’s political parties nominate a group of electors who are extremely loyal to their respective parties. Their number is equal to the number of electoral votes the state has, which in turn is equal to the number of senators (two per state) and number of representatives (determined by population) said state has, or in the case of the District of Columbia, a set three electors (thanks to the 23rd Amendment).

There is also potentially one additional minor caveat to consider when the party selects its groups of electors- an elector cannot vote for a vice president and president who both are from the elector’s home state. This rule was meant to ensure an elector could not vote for two of their state’s “favorite sons”. (More on why this was considered so important in a bit.) Today, this is obviously not an issue for anyone so long as the presidential candidate picks a vice presidential candidate from another state than their own.

On election day, whichever political party’s candidate, be it Republican, Democratic or a third party, wins the majority of the state’s votes, that slate of electors becomes the ones who get to vote for the president in their respective state. For example, in 2012, Californians voted for the 55 party-selected Democrats who in turn all cast their 55 votes for the Obama/Biden ticket.

(Note: there are currently two exceptions to this all-or-nothing approach- Maine and Nebraska; they both use a district system. In this system, the state’s popular majority is accounted for in some electors’ votes, but others vote based on congressional district’s popular majority within the state. This can potentially result in a splitting of the votes.  For instance, in 2008, Nebraska ended up with four Republican electors and one Democrat.)

However, as previously alluded to, to make this even more confusing and convoluted, there are no federal laws or Constitutional provisions that require electors to cast their vote in accordance with the state’s popular vote result. There are some state laws, however, pertaining to this; 29 states (and the District of Columbia) have laws that require the electors vote the way the popular vote has instructed them too.

That said, penalties are not too severe in most cases- failure to adhere to these state laws by so-called “faithless electors” could result in a fine or replacement as an elector. That also leaves 21 states that do not have such laws, allowing electors to vote as they see fit instead of how the general public directed them too. It turns out, this seems to have been what the founders intended.

It should be noted here that, according to the National Archives, more than 99% of the time electors have voted as instructed and no elector has ever been prosecuted or punished for failing to vote in accordance with the popular vote of their respective states.  However, there have been 22 times involving 179 electoral votes that faithless electors have bucked the system. The most recent was in 2004 when an elector apparently accidentally voted for John “Ewards,” rather than the Democratic nominee John Kerry. (John Edwards was Kerry’s running-mate in that election.) Another notable recent instance was in 2000 when a DC elector abstained from voting in protest over the District’s lack of representation in Congress.

Despite the occasional faithless elector, to date, none of these faithless votes has ever been the deciding vote in an election. However, there have been elections where a single faithless elector could have decided the president, such as in 1876 when Rutherford B. Hayes, despite losing the popular vote, won 185 electoral votes vs. 184 to Samuel Tilden.

So, why does the United States use the somewhat convoluted Electoral College when a popular vote would be drastically simpler and more democratic? In short, it was a necessary compromise from a time when the “united states” were not bound nearly as cohesively as today, nor the general public very well educated on the whole or well informed about the various candidates.

For the more detailed answer, the Electoral College dates back to 1787’s Constitutional Convention in Philadelphia, where they were given the gargantuan task of figuring out a solution to the mostly ineffective Articles of Confederation. Among the many issues that needed resolving was how the president of United States was to be elected.

In order to understand the delegates’ thought process, context is needed. The young country was only 13 states and residents were generally extremely provincial, meaning they still trusted their own state more than the federal government. Further, in many cases people identified more as a citizen of their state, rather than a citizen of the United States first.

From this, the founders were concerned that citizens of each state would put their own best interest before the nation’s. On top of this, because each state’s citizens would likely know their own candidates much better than candidates from other states (most of whom they probably wouldn’t even have ever heard of), they were doubly likely to vote for their own candidates. The ultimate result of this was feared to be that the winner of each state would likely be a citizen of that state, who would in turn have little chance of winning, or even garnering any support at all, in other states.

This brings us to the first option put on the table- election via popular vote. While more democratic, as mentioned, delegates were very concerned that each state would potentially elect their own candidate, making it difficult to ever get a candidate with wide support throughout the nation. Instead, they feared they’d be left with a field of many “favorite sons.”

Among these favorite sons, the bigger states – like Virginia – would dominate, resulting in little chance of someone from a smaller state ever becoming president, and making it so Virginia’s interests would be disproportionately represented in the nation’s highest office. For reference, at the time, Virginia had 424,000 men eligible to vote, which was more than Georgia, Delaware, South Carolina, Rhode Island and New Hampshire combined.

The other major option proposed was a simple Congressional appointment. Despite being inherently non-democratic, there was a thought that the president should be less powerful than Congress and, therefore, needed to be dependent on them. Also, the thinking went, the general public was largely extremely poorly educated and poorly politically informed. Congressional members, on the other hand, were not only already elected to represent their respective citizens in such matters, but were also intimately familiar with prospective presidential candidates, their character, work ethic, political leanings, etc. and were generally quite well educated relative to most people. Thus, in a nutshell, members of Congress were simply the most qualified to pick the most qualified president.

Ultimately this proposal lost because it threatened the checks and balances of the federal government. As then delegate and future President James Madison noted,

[T]he election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. [T]he candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views.

Essentially- if the president was elected by Congress, while in theory Congress at the time may well have been in a much better position to pick the best president, those who sought the office would be constantly campaigning and trying to impress those members, perhaps even giving favors upon election in exchange for votes. Beyond this, no president interested in getting re-elected could ever oppose Congress for fear they wouldn’t re-elect him or her later. Needless to say, this system was ripe for extreme corruption. So while in theory Congress was best suited to pick the potential best president, in practice they’d likely not have done so, or if they did, lorded too much power over that individual.

Thus, the Committee of Eleven on Postponed Matters devised and proposed the Electoral College, a system the delegates ultimately approved. Alexander Hamilton noted of the Electoral College, “…if the manner of it be not perfect, it is at least excellent.”

As to what “the manner of it” actually was intended to be- the idea here was essentially something of a cross between a popular vote and congressional selection- it was democratic in the sense that the popular vote could potentially determine the state’s allegiance (in the beginning state legislatures didn’t all do it this way), but it also limited the larger states’ influence slightly by awarding extra votes to smaller states via an elector for each of their senatorial representatives.

As for why it was also partially a compromise for those who advocated for a congressional selection, in a time before political parties in the United States, there is evidence that the founders very much assumed the electors, who explicitly could not “hold an Office of Trust or Profit under the United States” (to avoid at least some of the aforementioned corruption potential), would not be bound by the popular vote in their state or party affiliation or any such similar device.

In fact, in the earliest elections, over half the states’ legislatures selected their presidential electors with no regard for public vote, a right state legislatures still technically retain, but is a practice that died swiftly around the turn of the 19th century.

Beyond potentially disregarding popular vote in selecting which group of electors gets to vote for president, if a given state legislature really wanted to, they could even decide to pick a group of electors via something completely arbitrary like putting a bunch of mice in a maze, one representing each person who ran for president, with the winning mouse determining which group of electors is chosen.

Of course, no state legislature would dream of doing something so outlandish. However, several state legislatures have very recently begun banding together to use their elector picking power to potentially disregard their own citizen’s popular choice (more on this in a bit).

In any event, by 1790, along with the rest of the Constitution, the Electoral College was ratified by all 13 states and has in the vast majority of cases resulted in little controversy or public outcry for a change to the original system. In fact, the Electoral College has undergone only a few small changes since 1790.

The most significant change occurred following the election of 1800. At the time, each elector would cast two votes, one for one presidential candidate and one for another. The person with the most votes became president, and the person with the second most became vice president. This ensured that, at least in theory, the second most qualified individual was vice president- ready to step in should something happen to the most qualified person- the president.

Today the person who potentially would step in should something happen to the president is not selected by members of the Electoral College, nor even by the citizens of the United States, but rather by the president- the most undemocratic selection of all. As Senator Samuel White of Delaware noted when this switch was made, the vice president is now chosen, not based on the individual’s qualifications for that office, but rather by if “he by his name, by his connections, by his wealth, by his local situation, by his influence, or his intrigues, best promote the election of a president…”

So what spurred the change in the Electoral College, no easy thing to do given that it requires an amendment to the Constitution? Mainly the rise of political parties. In 1800, Thomas Jefferson and John Adams were both vying for the presidency, with each having their preferred vice president within their own party- something of a new concept. This was a problem if all electors for a given party ended up voting for both individuals, for instance, Thomas Jefferson and his proposed vice president, Aaron Burr. If this happened, they’d both be tied for president.

It happened.

What followed was 36 rounds of voting within the House to try to break the tie (the opposing party members muddied things up by voting for Burr just to attempt to see their most hated rival, Jefferson, defeated). There were even threats of militia’s forming to march on the capital to push for Jefferson, before Jefferson, who was always understood to be his party’s choice for president over Burr, was chosen.

In the aftermath, the 12th amendment was passed. This said that each elector got two votes, as before, but instead of both votes being for a potential president, one would be for president and the other for vice-president, thus creating little chance that a vice-presidential candidate could be elected president. (Little chance, because, as VEEP illustrated, it can still happen).

Other than that, over two hundred years later, the Electoral College is still essentially the same process as it was on day one. While today it’s a bit outdated given American attitudes concerning federal and state allegiances, it is a process that has survived in no small part because it’s both relatively difficult to amend the U.S. Constitution and, on the whole, the system has worked pretty well, not garnering nearly as much controversy as it would need to spur a Constitutional change.

All that said, following the highly controversial 2000 election between Bush and Gore, there have been attempts to tweak the Electoral College system without the need for amending the Constitution. How would this be possible? It all comes down to the fact that states are allowed to select their electors however they see fit, not just based on a winner-take-all popular vote selection.

Towards this end, several bills have been proposed in various states to tweak the elector selection. In most cases, these bills looked to switch to a district system, rather than a winner-take-all.  To date, little has come of these, as most who oppose the Electoral College want a nation-wide popular vote system, which on the surface would seem to require a Constitutional Amendment… or would it?

It turns out there is a way around this, too, via the National Popular Vote system. This is a clever proposal in which each state that joins agrees to give all its Electoral College votes to whatever candidate wins the national popular vote, rather than their particular state-level popular vote. In some cases, this may well mean a state’s legislature would go against its own citizen’s popular vote in selecting electors.

Currently 11 states have pledged to this system, for a total of 165 electoral votes.  If 105 more electoral votes are pledged (making for a total of 270), the system will take effect and the United States, while still using the Electoral College system, will begin electing its president via electors based on the national popular vote- no Constitutional amendment required.

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