The Electoral College is the process by which the states and District of Columbia elect the president of the United States. Each state and D.C. is represented by a number of electors equal to the size of its congressional delegation. There are 538 electors in total. To win the Electoral College, a candidate must receive a majority—at least 270—electoral votes.
The Electoral College will meet in mid-December to cast their votes after the general election on November 3, 2020. Although there is no constitutional provision or federal law requiring electors to vote in accordance with the election results in their state, electors typically vote for their state’s popular vote winner. Some states have provisions permitting the disqualification and replacement of an elector whose vote deviates from the state’s popular vote.
Arguments in favour of the Electoral College
Geographically distributed national support
Since no single region contains a majority of electoral votes, candidates cannot win by focusing only on regional issues while leaving other areas of the country out. It also encourages a candidate to select a running mate from a different region in order to build coalitions of states while campaigning. Those who support this theory suggest that even more important that winning a majority vote, is the ability to gain wide distribution of support across the country. In the event that the popular vote is very close, the thought is that the candidate with a wider distribution of support would beat a candidate with more popular support.
Enhanced minority influence
In states with concentrations of ethnic and racial minorities or special interest groups, often being states with high numbers of electoral votes, winning over those groups can swing an election due to the “winner-takes-all” system in the Electoral College. The votes of minority groups can carry more influence than their amount of votes would suggest.
Two party system stability
For a third party to win the presidency, they would need to have enough electoral votes to prevent a majority to any candidate and have enough U.S. House support to be elected over the two major party candidates. Because of this, the Electoral College process essentially forces third party voters to merge into one of the two major parties. Likewise, the two major parties, seeking the votes to win the election can mold their platforms to gain the votes of third party movements. The goal is to have two parties representing the centers of their respective platforms. Supporters of this theory suggest that extremists would have more incentive to campaign if the elections were based solely on popular vote, because if runoff elections were required to win the presidency, parties would tend toward more radical platforms to gain more support.
Maintains federal system of representation
As a requirement by the federal system of the United States, certain responsibilities must be left up to the states when it comes to representation in the federal government. The structure of the Electoral College provides the states the ability to determine the outcome of presidential elections, due to its similar setup to the United States House of Representatives and United States Senate, balancing the power of smaller states with that of the most populous.
Arguments against the Electoral College
Chance of majority candidate losing
There are three possible ways a presidential candidate could lose the popular vote but still be elected as president.
- If three candidates split the electoral votes in a way that none reach the majority required, either one candidate would have to withdraw from the race and give the support of his electors to another candidate, or the U.S. House of Representatives would be charged with electing the president, per the 12th Amendment.
- If one candidate’s support was heavily concentrated in more populous states, but another candidate’s support is spread out geographically and by only a slim majority, a candidate receiving only a minority of the popular vote could win the electoral vote.
- If a third party received enough votes that no candidate gets more than 50% of the popular vote, candidates can still be elected by a majority electoral vote. This is not uncommon in U.S. history and has happened 15 times.
- In 1824, four candidates split the electoral college vote in a way that none received the majority. John Quincy Adams was elected president by the House even though Andrew Jackson received more electoral votes.
- In 1836, the Whig Party ran three candidates in different areas of the country. Their thought was that the local candidates would win their party the majority of electoral votes at which time, they would choose amongst themselves who would be president. The Democratic-Republican candidate, Martin Van Buren, won the majority electoral vote and the presidency.
- In 1876, Samuel J. Tilden (D) won the popular vote but lost the electoral majority by one vote to Rutherford B. Hayes (R).
- In 1888, Grover Cleveland (D) won the popular vote but lost the electoral majority to Benjamin Harrison (R).
- In 2000, Al Gore (D) won the popular vote but lost the electoral majority to George W. Bush (R).
- In 2016, Hillary Clinton (D) won the popular vote but lost the electoral majority to Donald Trump (R).
“Faithless electors” possibility
While a “faithless elector” has never changed the outcome of an election, there have been seven instances of an elector casting a vote for a candidate other than for the one they pledged. This was often attributed not to the elector trying to sway the election a certain way but in trying to make a statement due to the rarity of the occurrence.
Depressed voter turnout
Since a candidate with a majority of the popular vote can still lose a presidential election, some argue it creates a disincentive to participate in the presidential election. No matter how high the voter turnout is, the state still receives the same amount of electoral votes for a presidential candidate. Others do not believe this is an issue because of the other offices at stake during any particular election day, from state offices to U.S. House and Senate seats.
Inaccurate reflection of the population
Because each state has a minimum of three electoral votes, votes from those in the least populated states count more toward the electoral vote than votes from those in more populous states. For instance, in 1988, the seven least populated states combined to count for as many electoral votes as Florida, yet the total population of those states was less than that of Florida.
Another example of the failure to provide an accurate reflection of the population is when it comes to third party candidates. If a third party candidate does not carry a majority in any state, they could carry a significant minority of the popular vote throughout the country, but they may not get a single electoral vote in the election.
Supreme Court rules states can enforce laws penalizing faithless electors (2020)
On July 6, 2020, the United States Supreme Court issued rulings in two connected cases that upheld the constitutionality of penalties for faithless electors. Chiafalo v. Washington and Colorado Department of State v. Baca were consolidated when originally granted review by the court. On March 10, 2020, the cases were no longer consolidated but remained linked.
In Chiafalo v. Washington, the state of Washington fined electors after they voted contrary to Washington state law requiring that they cast their electoral college ballots for the winner of the popular vote. The electors claimed the fines were unconstitutional and appealed them to an administrative law judge, who upheld the imposition of the fine. The electors appealed to the Thurston County Superior Court. The court affirmed the secretary of state’s decision. On appeal to the Washington Supreme Court, the appellants moved for direct review. The state supreme court affirmed the ruling of the trial court, holding that the imposed fines were constitutional under Article II, section 1, that the electors were not granted absolute discretion in casting their votes under Article II or the Twelfth Amendment nor did the fine interfere with a federal function, and that an elector acts under the authority of the State, meaning that no First Amendment right is violated when a state imposes a fine based on an elector’s violation of their pledge.
In Colorado Department of State v. Baca, electors made a similar argument to that of the plaintiffs in Chiafalo v. Washington. The case dated back to the 2016 presidential election when three of Colorado’s presidential electors tried to cast their votes for candidates other than Hillary Clinton, who won the state. Then-Secretary of State Wayne Williams told the electors they must vote for Clinton or be removed. Two of the electors then opted to vote for Clinton, but one–Micheal Baca–would not and instead tried to vote for John Kasich. Baca was then removed and replaced with another elector. The three electors filed suit, claiming Baca’s removal amounted to a deprivation of their rights. The case was eventually appealed to the Tenth Circuit Court of Appeals, which determined that the nullification of Baca’s vote and his removal from office were unconstitutional.
Both cases were argued before the Supreme Court on May 13, 2020. The court issued rulings for both cases on July 6, 2020, that upheld the constitutionality of penalties for faithless electors. In Chiafalo v. Washington, the Supreme Court unanimously affirmed the Washington Supreme Court’s decision, holding that a state may enforce an elector’s pledge to support their party’s nominee and the state voters’ choice for president. In Colorado Department of State v. Baca, the Supreme Court reversed the appellate court’s decision in an 8-0 per curiam decision for the reasons outlined in Chiafalo v. Washington.