Can the Electoral College System Be Changed?

Can we Change the Electoral College? Should we Change the Electoral College?

We explain the different ways America can change the Electoral College system, and discuss the pros and cons of abolishing or reforming the electoral system.^{[1][2][3][4][5]}

The two ways to change the electoral system regarding the election of the President and Vice President are by 1. a Constitutional Amendment and 2. Changing state-based rules. In both cases the problem is “those who win elections are not likely to change them,” and given recent history, that means getting the less populous, rural, and largely Republican states to change the rules is unlikely. We explain the Electoral College and the different options for changing it, and the related complications, below in more detail.

FACT: Things can change. Winner-takes-all rules have been changed since the Constitution was written. Senators were not elected by direct vote until the 17th Amendment established the direct election of U.S. Senators. The 12th, 14th, 15th, 19th, 20th, 22nd, 23rd, 24th, and 25th Amendments all changed the way voting works in the United States. See Presidential Election Laws.

How the Presidential Election and Electoral College Work

Firstly, the United States is a Republic in terms of voting. The President and Vice President are elected by the Electoral College, not the popular vote. In fact, the general election vote for President is an advisory vote and meant to inform the country and state-based electors of the people’s wishes. The electors don’t officially cast their votes until “the first Monday after the second Wednesday in December.”

However, by custom and state-based rules, most states have a winner-take-all system. That means the state’s electors vote with the popular vote in that state as a matter of state-based rules and custom. This is what has resulted in Republicans winning despite losing the popular vote in recent elections like 2016.

Nothing in the Constitution prohibits the electors from voting however they want to vote. It is only the state-based rules that say electors have to vote with the state-based popular vote and not the national popular vote. “Faithless Electors” can still change their vote in many states according to state-based rules, and can change their vote in all states according to the Constitution.^[6][7]

Thus, when talking about changing the Electoral College, we have to consider “how state-based rules would change” and how “the Constitution would change.” To reform the system, we would have to address both, but this doesn’t mean every voting reform solution requires it.

FACT: Some dates are subject to change each election, for example, electors vote “On the first Monday after the second Wednesday in December” which for 2016 was December 19th. See a timeline of the 2016 election for 2016’s dates for examples.

TIP: How electors are appointed or elected differs by state, but in all cases, they are elected or appointed by officials, not a popular vote. Learn more About the Electors.

FACT: There are 538 electors, and a 270 majority vote is needed to elect both the President and Vice President, who are voted for on separate ballots. Why 538? The number of electoral votes is tied to congressional representation. The House has 435 seats, while the Congress has 100, and D.C. makes up the other 3.

TIP: The electors can change their vote up until it is officially cast. Also, states can change electors before they cast their vote. So long-term rule changes aside, a lot can change regarding the electors.

How the Electoral College Works.

TIP: Your vote counts, even though it technically doesn’t count directly in the Presidential election. Your vote has an impact on the state and local level, despite the complexities of the American voting system.

FACT: The election of 1824 is most famous for the “corrupt bargain.” This bargain was an agreement made in the House of Representatives that gave John Quincy Adams the presidency despite his winning fewer popular and electoral votes than Andrew Jackson. 1824 was also significant for another reason. It was the first election in which the majority of states used a statewide winner-take-all voting method for choosing their presidential electors. Learn more about How the Electoral College Became Winner-Take-All or learn more about realigning elections that changed the parties.

Why Did the Founders Create the Electoral College?

The Electoral College was set up by the founders to safeguard our Republic from tyrants (see also the Federalist #10 and #68).

The system was intended to protect the country from dangers including the tyranny of the majority, mob rule, and would-be despots like a Hitler or Caesar. Its creation was also a way to give equal representation to the less populated southern states. It was one of many Constitutional compromises like the Connecticut Compromise and 3/5ths Compromise.

It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture…. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. – PUBLIUS Federalist #68 (AKA the Founding Federalist Alexander Hamilton)

Is the Electoral College Fair Today?

Today the less populated southern states that benefited from the compromise still tend to be more rural and less populated. Meanwhile, the other rural states in the middle of the country tend to share their population size and politics. One could argue that if we went by majority vote, it would lead to politicians favoring populated states like New York and Texas and thus, one could argue the college is still fair in that it offers these less populated states fair representation.

However, one could also argue that it is unfair that two of the last six elections (Gore and Clinton), had candidates win the popular vote, but lose the election due to the College.

TIP: Here is a list of 2016 electors (this can change as per the rules).

FACT: Electoral votes do not correlate with the population. California has almost 40,000,000 people and 55 electoral votes, while Wyoming has almost 600,000 people and 3 electoral votes. Rounding out the math, 700,000 Californians get a 1 electoral vote while 200,000 Wyomingites get 1 vote. Thus, Wyomingites have over three times the power per person of Californians, as do other less populated states like Rhode Island.^[8]

How to Change or Abolish the Electoral College

Now that we know how the College works, why our founders put it there,

If one wanted to push for changing or abolishing the Electoral College, they could go about it in two different ways.

1. The electoral college is written into the Constitution, and thus it can be abolished by a federal Constitutional amendment ratified by three-fourths of the States (38 of 50 States). The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. See the Official Constitutional Amendment Process.^[9]
2. The electoral college could also be dealt with on a state-level. We can use the same customs and state-based Constitutions that are currently used to enforce the winner-takes-all system to shift to a National Popular Vote based system. This would require enough states to enter into a compact to vote with the national popular vote to give a 270 majority to the popular vote in each election. See details here; it is a very clever loophole which many states wanted after the 2012 election. The 2016 election has re-awakened interest in pursuing this course of action. It presents the best way forward right now as is both less out-of-line with the intentions of the founders and easier to accomplish. Learn more about the National Popular Vote Interstate Compact.

Myths About Constitutionality. This video explains winner-takes-all laws and how they are state-based laws.

Myths About Big States and Big Counties.

Should We Abolish the Electoral College? – Opinions

Now that we know we can abolish the College, that the founders didn’t create the winner-takes-all system, and that the popular vote doesn’t elect the President, we can ask, “should we abolish the Electoral College?”

It is unfortunate that we didn’t address types of legal voter suppression like gerrymandering, voter ID, the electoral college, or other systems that suppressed the vote going into the election, but now that the people have voted, it is too late to cry foul. Instead, we should be looking forward.

In the future, it may be unwise and unfair to abolish the electoral college.

2016 proved that even though Clinton had a majority of the popular vote, the country is essentially split between three types of voters 1. liberals 2. conservatives 3. the 45% of Americans who didn’t vote.

A majority of voter eligible voters didn’t vote for Trump or Clinton in 2016, nor did they vote for Bush or Gore in 2000, they voted for nobody.

We have not faced a tyranny of a majority. Instead, we just keep seeing the country split; neither a majority or minority is being tyrannical. We might think we have “the tyranny of the duopoly.” If anything is tyrannical today, it is the divisive factions which seem more driven toward special interest than the common good. But minority or majority, the College is meant to protect against both. In our current system, the electors can step up and make a difference. If we went on pure popular vote alone, they couldn’t. Given this, a National Popular Vote Compact may well be a better choice if people want to abolish the College than an amendment. The Compact would allow us to follow the national vote, but still allows a last line of defense in our electors, which is exactly what the founders intended. Thomas Jefferson cherished the people; Madison and Hamilton were more skeptical. The founders of the United States had many conflicting political philosophies, but they agreed that establishing a Republic in which the people cast an advisory vote could safeguard the Union. Between state-based gerrymandering and strict voter ID, may make sense to take reform seriously. A direct election by a national majority with no safeguards may imperil the country. While the founders might not have foreseen today’s complications, they were wise in providing safeguards for the Union.

1. Can and Should the Electoral College Be Abolished?
2. The surprisingly realistic path to eliminating the Electoral College by 2020
3. the Electoral College
4. Most People Hate The Electoral College, But It’s Not Going Away Soon
5. U.S. Electoral College – Frequently Asked Questions
6. Presidential Election Laws
7. How the Electoral College Became Winner-Take-All
8. FairVote
9. the Official Constitutional Amendment Process