Joey Garrison, December 11, 2020
Across all statehouses amid a global pandemic, 538 electors are set to convene to cast their votes for either President-elect Joe Biden or Trump, reflecting the popular votes in their states.
Although protests are likely at some capitol buildings – and extra security is expected – the outcome should offer little suspense. Biden and Vice President-elect Kamala Harris are set to end the day with 306 electoral votes, topping Trump’s 232.
Historically, the Electoral College meeting is a formality given little attention. But Trump’s unprecedented efforts to overturn the election have magnified every turn in the election calendar and shined the spotlight on electors who are usually overlooked.
Raising the stakes, some Senate Republicans circled the date as the moment they would finally recognize Biden as the president-elect. Senate Majority Leader Mitch McConnell last month said “the Electoral College will determine the winner.”
“This is the moment of truth, and something that is already inexorable becomes fully locked in,” said Ben Wikler, a Wisconsin elector pledged for Biden and chairman of the Wisconsin Democratic Party. “This year, more than ever, it’s almost a sacred act to cast the official votes that have been determined by voters to choose the most powerful person in the world.”
No competing slates; ‘faithless electors’ curbed
The Electoral College meeting comes after Trump, who has leveled baseless claims of widespread voter fraud to argue the election was stolen, has lost a barrage of lawsuits seeking to overturn the election.
He also failed to convince state lawmakers in states he lost like Michigan, Pennsylvania and Georgia to certify their own separate slates of Trump electors. It means Monday will lack the drama of competing slates of electors casting votes, spoiling a dubious legal strategy pursued by the Trump team.
“We’ve seen pretty clear signals from state legislators that’s not going to happen,” said Rebecca Green, director of William and Mary School of Law’s election law program. She said such a scenario presented the biggest opportunity for “mischief on Dec. 14,” adding the ingredients aren’t there to “push forward any kind of fireworks.”
Eliminating more suspense, the U.S. Supreme Court ruled in July states can insist members of the Electoral College support the winner of the popular vote on Election Day, prohibiting rogue electors in most states. Thirty-two states don’t allow these so-called “faithless” electors.
“You can expect, as a result of that ruling, a lot fewer shenanigans,” Green said.
Focus of Trump, allies shifts to Jan. 6
With Trump facing a loss in the Electoral College, the president and his allies have shifted their focus to Jan. 6, when a joint session of Congress meets to count the electoral votes and certify a winner.
But expected efforts by Republican House members to contest individual state’s electors were dealt a blow Tuesday when most states – having resolved election disputes –appeared to meet the safe harbor deadline guaranteeing their electors are counted under federal law.
Matthew Weil, director of the Bipartisan Policy Center’s Elections Project, said the Electoral College vote marks a “turning point” for Trump and his election challenge. Its action sets in motion the effective final act when Congress weighs certification prior to the Jan. 20 inauguration.
“I can’t imagine anything that could change the outcome once Congress acts,” Weil said.
Who are the electors?
Americans who voted in last month’s presidential election voted to appoint electors pledged for either Biden, the Democratic nominee, Trump, the Republican nominee, or nominees of third parties to formally vote for president. A state’s population determines its number of electors.
These electors are mostly party activists – in some cases state lawmakers, Congress members or even governors – appointed by state parties earlier this year.
Most aren’t household names. Some are more well-known such as former Georgia gubernatorial candidate Stacey Abrams, who is an elector in Georgia; Wisconsin Gov. Tony Evers, an elector in his state; and New York Gov. Andrew Cuomo, former President Bill Clinton and Hillary Clinton, each electors in New York.
Electoral College members pledged for Trump will convene in states the president won, while Biden electors will meet in states the former vice president carried, based on the certified election results in each state. Biden electors received notification to appear from governors or secretaries of states in the six states Trump has contested: Pennsylvania, Michigan, Wisconsin, Georgia, Arizona and Nevada.
Biden electors feel the weight of their votes
The meetings – many begin at noon or 2 p.m. – are open to the public and typically streamed live online. Most begin with the national anthem. Some states kicked off past meetings with colonial-style military bands marching in or other forms of pageantry. That’s less likely to be the case during the pandemic.
Meetings usually last under an hour, sometimes no longer than 20 minutes. Secretaries of states or other state election officials typically preside over the gatherings. With a room full of electors from the same party, there’s no debate, but some electors use the time to give speeches on democracy and the historic moment.
“We’re gathering at the state capitol at noon. That’s what I know,” said Wendy Davis, a city commissioner from Rome, Georgia, who is a first-time elector for Biden. A longtime party activist in a state that hadn’t voted Democrat since 1992, Davis said the state’s 16 electors reflect the diverse coalition that turned the state blue.
“It’s enormous. It’s such an honor. I still don’t think the enormity has sunk in because we’ve been so busy working hard on the election.”
Electors cast their votes for president and vice president on separate ballots. They then sign six vote certificates, one to be delivered to Vice President Mike Pence as president of the U.S. Senate, two to the state’s secretary of state, two to the U.S. archivist and one to a federal judge in the district of the meeting.
It wouldn’t be unprecedented to see protests. Trump critics gathered outside several capitol buildings in 2016 to voice their opposition to his Electoral College victory.
Amid the uproar as Trump fights the election results, some Democratic electors said they’ve heard from Trump supporters ahead of the vote.
Marseille Allen, one of Michigan’s 16 Democratic electors, said the electors each received an email from elderly man urging her not to vote for Biden but said it didn’t come off as threatening. Allen, a state probation agent from Flint, Michigan, said as an African American woman, voting in the Electoral College holds added significance.
“To be able to actually cast my vote for president when at one point this same institution didn’t even consider me a full human being,” Allen said, “it’s an honor I will never, ever be able to put into words.”
GOP electors in states Trump lost left with no options
As for electors pledged to Trump in disputed states, several contacted by USA TODAY said they have no current plans to show up at their statehouses in protest or stage their own meetings.
“I have no directions whatsoever,” said Stanley Grot, a Trump Michigan elector from Shelby Township, where he’s the town’s clerk. “Of course anything can change between now and the 14th. At this point, I have no other plans.”
Ken Carroll, a Trump elector from Georgia and plaintiff in a lawsuit that sought to halt the state from certifying Georgia’s election, said Georgia Republican electors don’t plan to meet Monday. He worries about “where our country’s going,” but said it’s “never even crossed our minds” to try to intervene with the Electoral College vote.
“You may have some groups that may show up on their own and protest it,” said Carroll, a party activist form Easton, Georgia, who works in insurance. “But I think they would be more likely to protest the election itself, not the electors.”
Mary Buestrin, a Trump elector from Wisconsin, said state Republican leaders told her to “keep the date open” but heard nothing more. “Nothing has been going on that I know of.” A GOP elector during past elections, Buestrin said she can’t envision a chaotic scene.
“It never has been, and someone’s always lost and someone’s alway won. It’s been a very civil, very short meeting that is held.”
Experts say objections unlikely to work in Congress
During the Jan. 6 meeting of Congress, Pence – as president of the Senate – will open the electoral certificates from each state alphabetically to count the votes. Any objections require support from one House member and one senator to be considered. The two chambers would meet separately to vote on any disputes.
More than 60 state Republican lawmakers from Pennsylvania have called on the state’s congressional delegation to reject Biden’s victory in the state. Attracting applause from Trump, U.S. Rep. Mo Brooks, R-Ala., said he hopes to “reject the count of particular states” like Georgia and Pennsylvania.
But legal experts said such threats will likely amount to little more than theater.
Ned Foley, director of the election law program at Ohio State University’s Moritz College of Law, said even “if the off-chance, by surprise, there are rival submission of electoral votes,” it would lack the votes to move forward. The House, controlled by Democrats, would quickly shoot down the effort, he said, and enough Republican senators would likely oppose the move as well.
“It may require a vote, there may be a little theater or drama on Jan. 6, but as a practical matter it’s not going to affect who gets inaugurated on Jan, 20,” Foley said.
In 2016, Rep. Pramila Jayapal, D-Wa., rose to object to the certification of electoral votes in Georgia, but Biden – then president of the Senate – quickly killed debate with his gavel because she lacked the signature of a senator.
“It is over,” Biden said as Republicans applauded.
In 2004, then-Sen. Barbara Boxer signed on to a House objection on the election results in Ohio, the decisive state in President Georgia W. Bush’s victory over Democrat John Kerry. The House and Senate each defeated the objection.
“I don’t believe that Congress will defy the will of the people,” Green said. “You can have empty rhetoric in front of a microphone at a press conference. But so far, we’ve seen in court that doesn’t fly. And I also believe that’s not going to fly in Congress for the same reason.”
Multiple Senate Republicans this week suggested they’ll be ready to recognize Biden as the president-elect after the Electoral College meets Monday.
Outgoing Sen. Lamar Alexander, R-Tenn., set to vacate from his seat next month, said it appears Biden will “very likely to be the president-elect” following the Electoral College vote.
“And if he is, I would hope the president would put the country first, congratulate Joe Biden, take pride in his considerable accomplishments, and help him off to a good start,” he said.
Sen. Mike Braun, R-Ind., said he would “probably not” be willing to challenge results come Jan. 6. “I don’t know that I don’t think any one senator would probably feel comfortable doing that.”
Braun said he supported efforts to vet concerns about election, but nothing “coalesced” to overturn the election. He said he’s waiting until Monday’s Electoral College vote to call Biden president-elect.
“I think at that point, the process has played itself out.”
Staff reporters Kevin Johnson and Nicholas Wu contributed to this report. Reach Joey Garrison on Twitter @joeygarrison.
Controversial since its creation, this U.S. institution has elected five presidents who didn’t win a majority of votes and has even resulted in one tie.
BY ERIN BLAKEMORE
October 16, 2020
BORN OF COMPROMISE and enshrined in the U.S. Constitution, the Electoral College isn’t a place. It’s a temporary voting body that elects the president of the United States. When voters select their presidential and vice-presidential candidates on Election Day, they’re actually choosing the members of this body who will cast votes on their behalf in the days and weeks after the election.
For the past 233 years, this confusing and contentious institution has split opinions and overseen some truly rocky presidential elections. It has elected five presidents who didn’t win a majority of American votes and resulted in one tie. And though most electors vote for their pledged candidates, some have historically gone back on their promises.
Every four years, debate revives over the efficacy, equality, and even necessity of this electoral system. Here’s what you need to know about how it came about, how it works, and the proposals for Electoral College reform.
The Electoral College and the Constitution
The Electoral College is the result of a series of compromises struck during the grueling Constitutional Convention of 1787. Delegates quibbled over, and discarded, a variety of ways to elect a president. Some believed citizens should vote directly while others argued that Congress should decide. Still others insisted this would give the national legislative body too much power and that the decision should lie with the states. But that was contentious, too, because delegates couldn’t agree on what role, if any, state legislators and governors should play in the process.
Giving states electoral power also raised the question of how less populous states would be represented. This was a sticking point among Southern slaveholding states, which lacked the population of their northern neighbors. Delegates from those states insisted that their enslaved residents, who were not considered citizens and would not be allowed to vote, be counted for the purpose of allocating electoral votes.
Finally, the framers hit on a solution that balanced all of these factors. Article II of the Constitution holds that each state should appoint electors equal to the number of its U.S. senators and representatives. While the size of the House of Representatives would be based on population—as determined by the U.S. Census—each state received two senators to give a small bump in power to less populous states.
The question of how to count enslaved people resulted in the notorious Three-Fifths Compromise, which determined that three out of every five slaves would be counted as persons for congressional representation, taxation, and the Electoral College.
One point that the Founding Fathers didn’t consider during their deliberations was how to distinguish between ballots for the president and vice president. This flaw would become obvious in the nation’s fourth election in 1800, which resulted in a tie between presidential candidate Thomas Jefferson and his running mate Aaron Burr. The contest was thrown to the U.S. House of Representatives, which ultimately selected Jefferson after deadlocking 35 times. In 1804, the 12th Amendment was passed to create separate votes for presidents and vice presidents in the Electoral College.
Then there was the matter of who was qualified to be an elector. The Constitution originally provided only that electors couldn’t be members of Congress or federal employees and left it up to the states to decide who they would choose and how.
In 1868, however, the 14th Amendment added a requirement that electors can’t have participated in a rebellion against the United States or have aided its enemies. More notably, it also negated the Three-Fifths Compromise by conferring citizenship on formerly enslaved people at the end of the Civil War, ensuring that each individual would be counted.
How states allocate electoral votes
States’ approaches to their electors varied from the start. At first, Connecticut, South Carolina, and Georgia’s state legislatures appointed electors directly, while other states let citizens decide. But as political factions grew, states’ procedures changed and slowly shifted this role to political parties. Now, political parties select a slate of people in each state who will stand as electors for the party’s candidate.
In the 2020 election, there will be 538 electors. To win the election, a candidate must win a majority—270 electoral votes.
State rules vary on how to allocate electoral votes. In the winner-take-all system, which is in effect in 48 states and the District of Columbia, all of the state’s electoral votes are allocated to the slate of electors chosen by the political party of the candidate who won the state’s popular vote.
Maine and Nebraska assign electoral votes by congressional district, a system that has resulted in one split election in each state. In 2008, Democrat Barack Obama won the electoral vote in the Nebraska congressional district that covers Omaha and its suburbs, while Republican John McCain won the rest of the state. In 2016, Republican Donald Trump won the electoral vote in the less populous district that covers most of Maine, and Democrat Hillary Clinton won the other district and the state’s popular vote.
In 2019, Maine became the only state to adopt a ranked-choice system in which voters rank candidates in order of preference. If no candidate receives a majority, the votes are then tabulated in rounds, and the lowest-ranked candidates are eliminated until only two are left. In the final round, the candidate with 50 percent or more of the vote wins.
Counting the votes
Though a candidate usually declares victory or concedes on Election Night, the returns reported by the media immediately after the election are only preliminary. The official count comes later, when the electors cast their official votes.
After Election Day, which takes place on the first Tuesday after the first Monday in November, states use the remainder of November and December to gather, certify, and send their electors’ formal votes for president and vice president to the National Archives and Records Administration, which administers the Electoral College.
The votes are counted in a joint session of Congress on January 6. The sitting vice president—who is also president of the Senate—presides over the session, opening the votes, reading them aloud, and passing them to two “tellers” from each chamber who count them. If one candidate receives 270 or more electoral votes, the vice president announces the results—including, sometimes, their own win or loss.
Members of Congress can object to individual electors’ returns or states’ overall returns. If a written objection is signed by at least one senator and one member of the House of Representatives, it bumps the session to a recess. The two houses then debate the objections and vote on whether to accept or reject them. Both houses must agree to reject the returns to exclude them from the final tally.
Such formal objections have only occurred twice in history. In 1969, two members of Congress objected to a vote that had been cast by a “faithless elector,” an elector who was expected to vote in favor of Republican Richard Nixon but instead cast it for Democrat George Wallace. In 2005, two Democratic members objected to all 20 of Ohio’s votes in favor of incumbent President George W. Bush, claiming that the state’s voting process had been flawed. Both objections failed and the election results were unchanged.
The Electoral College and the popular vote
Although there hasn’t been a tie in the Electoral College since Jefferson and his running mate Burr split the votes in 1800, the U.S. House of Representatives was called in to decide the vote for a second and last time in 1824. At the time, the Democratic-Republican party had fragmented, and no candidate won the majority of the electoral votes. Ultimately, the House of Representatives chose John Quincy Adams instead of Andrew Jackson, who had won the popular vote.
The Electoral College would allow a candidate to win a majority of the popular vote and lose the election four more times in history—in 1876, 1888, 2000, and 2016.
In 1876, Democratic candidate Samuel Tilden won the popular vote but lost to Republican Rutherford B. Hayes by a single electoral vote. Disputed returns from three states led to the creation of a bipartisan commission that awarded the election to Hayes in 1877, but Southern Democrats only accepted the results when Republicans promised that federal troops would leave the South, effectively ending the period of federal intervention in the post-Civil War South known as Reconstruction. Hayes was declared the victor in Congress just two days before his term began.
Congress passed the 1887 Electoral Count Act a decade later to avoid such protracted disputes by setting the deadlines and vote-counting procedures that are still used today, but that didn’t resolve the bigger issue. In 1888, Democratic incumbent Grover Cleveland won the majority of the popular vote, but lost to Republican nominee Benjamin Harrison in the Electoral College 233 to 168.
In 2000, Democratic Vice President Al Gore won the popular vote for president by more than half a million votes. But he lost the Electoral College to Republican candidate George W. Bush 271 to 266 after the U.S. Supreme Court halted the recount of ballots in Florida, where Bush had only a narrow lead and voting irregularities had been recorded.
Sixteen years later in 2016, another Democratic candidate won the popular vote but lost the Electoral College when Hillary Clinton lost to Republican challenger Donald Trump. Clinton had a 2.86 million vote lead and 48 percent of the popular vote, but only garnered 232 electoral votes to Trump’s 306.
Unpledged and faithless electors
There has also been controversy over the electors themselves. In some elections, state parties have selected unpledged electors—electors who can vote for any candidate regardless of party affiliation. This practice was primarily used in the mid-20th century in Southern states whose conservative Democratic Party members wanted to express their displeasure with national party platforms that challenged segregation.
However, the only time these unpledged electors have been elected to the Electoral College was in 1960, when 15 unpledged Democratic electors from Mississippi and Alabama cast votes for Southern Democrat Harry Byrd instead of John F. Kennedy, the national Democratic candidate who ultimately won the election. The practice died out after the 1960s, when conservative Southerners moved their loyalties to the Republican Party.
But most electors do promise to vote a certain way in the Electoral College—and when they go against those pledges, they earn the moniker “faithless.” Thirty-two states and the District of Columbia have laws that require electors to abide by their pledges. Still, there were seven faithless electoral votes cast in 20th-century elections, and another seven in the contentious 2016 election alone. During that contest, five electors pledged to Democratic contender Hillary Clinton and two pledged to Republican Donald Trump successfully switched their vote to candidates who were not in the race, such as former Democratic presidential candidate Bernie Sanders and moderate Republicans John Kasich and Colin Powell. In 2000, one elector from the District of Columbia cast a blank ballot in protest of the capital city’s lack of Congressional voting status. However, no election has ever been determined by a faithless elector.
In July 2020, the U.S. Supreme Court ruled that states can enforce electors’ pledges by penalizing rogue electors or removing them from the slate—to the dismay of Electoral College opponents, who had hoped a Supreme Court ruling affirming electors’ rights to vote as they wish would have thrown future elections into chaos and galvanized a national movement to eliminate the Electoral College.
Is Electoral College reform possible?
According to the National Archives, more than 700 proposals to reform or abolish the Electoral College have been introduced to Congress in the past two centuries. These proposals aim to address the many factors that allow a candidate to win the majority of votes and not the presidency as well as various biases within the system.
Although the framers specifically intended to ensure less populous states had a say in elections, critics claim sparsely populated states now have an unfair advantage. By guaranteeing every state at least two electoral votes to match its senatorial representation, the system gives small states more electoral votes per capita. For example, the least populous state, Wyoming, had one electoral vote per 195,000 people in the 2016 election—and California, the most populous, had one per 712,000 people.
Legal scholars note that this bias toward small states has played a decisive role in three elections, most recently in 2000. Had Electoral College votes in that election been allocated by population without the two-vote Senate bump, Gore would have defeated Bush 225 to 211.
Critics also deride the winner-take-all approach to allocating votes as undemocratic for the way it overrides the preferences of wide swaths of a state’s voters. They argue that this system favors candidates from major parties and encourages candidates to campaign in just a few battleground states that are ideologically split and disproportionately white.
One reform proposal is the National Popular Vote Interstate Compact, an agreement among states to award all of their electoral votes to the candidate who wins the popular vote nationwide. Several states have passed legislation to join the compact, but it would come into effect only when participating jurisdictions represent a majority of the Electoral College. As of October 2020, it has been enacted by 15 states and the District of Columbia and needs an additional 74 electoral votes to come into effect.
There’s also a state-level push for ranked-choice voting, which is seen as a way to force candidates to court not just their tried-and-true supporters, but voters across the political spectrum. It could also help states sidestep the effects of third-party and independent voters, whose votes can siphon off support from major candidates. In 2020, Maine will become the first state to ever use this system in a presidential election.
To abolish the Electoral College, however, would require a Constitutional amendment. This onerous process requires a two-thirds majority in both chambers of Congress, or a convention requested by two-thirds of state legislatures. A Constitutional amendment must then be ratified by the legislatures of three-quarters of the states.
In 1969, the House of Representatives came close when it voted to allow for the direct election of both president and vice president, with a runoff if no candidate received more than 40 percent of the vote. But the resolution didn’t pass the Senate, and nothing similar ever made it that far again.
And not everyone believes that it should. Proponents of the Electoral College argue that the system allows states to check the power of the national government and averts the possibility of nationwide recounts that could throw elections into chaos. Rather than lament the system’s bias toward small states, they argue it encourages candidates to campaign outside of highly populated urban areas.
In the most recent Pew Research Center poll on the matter, published in March 2020, 58 percent of U.S. adults said they support eliminating the current system in favor of a popular vote. That number is split along party lines: While 81 percent of Democratic-leaning respondents said they’d nix the Electoral College, only 32 percent of Republican-leaning respondents agreed.
And so, the electoral system that has vexed America since its earliest days has proven relatively durable.
The founders envisioned electors as people who could prevent an irresponsible demagogue from taking office.
PETER BEINART NOVEMBER 21, 2016
Americans talk about democracy like it’s sacred. In public discourse, the more democratic American government is, the better. The people are supposed to rule.
But that’s not the premise that underlies America’s political system. Most of the men who founded the United States feared unfettered majority rule. James Madison wrote in Federalist 10 that systems of government based upon “pure democracy … have ever been found incompatible with personal security or the rights of property.” John Adams wrote in 1814 that, “Democracy never lasts long. It soon wastes, exhausts and murders itself.”
The framers constructed a system that had democratic features. The people had a voice. They could, for instance, directly elect members of the House of Representatives. But the founders also self-consciously limited the people’s voice.
The Bill of Rights is undemocratic. It limits the federal government’s power in profound ways, ways the people often dislike. Yet the people can do almost nothing about it. The Supreme Court is undemocratic, too. Yes, the people elect the president (kind of, more on that later), who appoints justices of the Supreme Court, subject to approval by the Senate, which these days is directly elected, too. But after that, the justices wield their extraordinary power for as long as they wish without any democratic accountability. The vast majority of Americans may desperately want their government to do something. The Supreme Court can say no. The people then lose, unless they pass a constitutional amendment, which is extraordinarily difficult, or those Supreme Court justices die.
That’s the way the framers wanted it. And, oddly, it’s the way most contemporary Americans want it too. Americans say they revere democracy. Yet they also revere those rights—freedom of speech, freedom of religion, the right to bear arms—that the government’s least democratic institutions protect. Americans rarely contemplate these contradictions. If they did, they might be more open to preventing Donald Trump from becoming the next president, the kind of democratic catastrophe that the Constitution, and the Electoral College in particular, were in part designed to prevent.
Donald Trump was not elected on November 8. Under the Constitution, the real election will occur on December 19. That’s when the electors in each state cast their votes.
The Constitution says nothing about the people as a whole electing the president. It says in Article II that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Those electors then vote for president and vice-president. They can be selected “in such Manner as the Legislature thereof may direct.” Which is to say, any way the state legislature wants. In 14 states in the early 19th century, state legislatures chose their electors directly. The people did not vote at all.
This ambiguity about how to choose the electors was the result of a compromise. James Madison and some other framers favored some manner of popular vote for president. Others passionately opposed it. Some of the framers wanted Congress to choose the president. Many white southerners supported the Electoral College because it counted their non-voting slaves as three-fifths of a person, and thus gave the South more influence than it would have enjoyed in a national vote. The founders compromised by leaving it up to state legislatures. State legislatures could hand over the selection of electors to the people as a whole. In that case, the people would have a voice in choosing their president. But—and here’s the crucial point—the people’s voice would still not be absolute. No matter how they were selected, the electors would retain the independence to make their own choice.
It is “desirable,” Alexander Hamilton wrote in Federalist 68, “that the sense of the people should operate in the choice of” president. But is “equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station.” These “men”—the electors––would be “most likely to possess the information and discernment requisite to such complicated investigations.” And because of their discernment—because they possessed wisdom that the people as a whole might not—“the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”
As Michael Signer explains, the framers were particularly afraid of the people choosing a demagogue. The electors, Hamilton believed, would prevent someone with “talents for low intrigue, and the little arts of popularity” from becoming president. And they would combat “the desire in foreign powers to gain an improper ascendant in our councils.” They would prevent America’s adversaries from meddling in its elections. The founders created the Electoral College, in other words, in part to prevent the election of someone like Donald Trump.
To modern American ears, it sounds insanely undemocratic for electors to ignore the will of the people of their state. But were Hamilton alive, he might wonder why Americans find this undemocratic feature of the Electoral College so outrageous while taking its other undemocratic features virtually for granted. For instance, each state gets as many electors as it has members of the House of Representatives and Senate. (The District of Columbia now gets a few, too). That is itself undemocratic. It’s undemocratic because while representatives are allocated between the states via population, senators are not. Each state gets two: Whether it has 38 million people (California) or half a million (Wyoming). Because states, not people, are represented equally in the Senate, the Senate is undemocratic. And because a state’s number of electors is based partly on its number of senators, the Electoral College is thus partially undemocratic too.
Moreover, every state except Nebraska and Maine allocates its electors based on the principle of winner take all. Win California by one vote and you get all its electors. For that reason, too, the Electoral College does not always reflect the popular vote. In two of the last five presidential elections, in fact, the candidate who received the most votes—Al Gore in 2000 and Hillary Clinton in 2016—has lost the Electoral College. Americans are mildly but not profoundly disturbed by this. Most of the people protesting Donald Trump’s election are not protesting because he lost the popular vote. When George W. Bush became president after losing the popular vote in 2000, there were protests, but no real question about the inevitability of his taking office. In this way, as in many others, Americans comfortably accept undemocratic elements of America’s system of government even as they profess publicly that democracy is sacrosanct.
In truth, Americans are wedded less to democracy than to familiarity. They accept those undemocratic features of the Electoral College, and of American government in general, to which they’re accustomed. They value things as they are.
This makes sense. Americans are used to choosing presidents in a particular way. As the University of Michigan constitutional law professor Richard Primus pointed out to me, they’re like a family that for as long as anyone can remember has been playing a board game by a certain set of rules. What happens if, in the middle of a game, one player consults the instructions, finds that the actual rules are different, and proposes suddenly abiding by them instead? The other players—especially those who would be disadvantaged by the change—will likely refuse.
Were the electors to meet on December 19 and decide that Donald Trump is unfit to be president, all hell would break loose. Trump’s supporters, and even some who opposed him, would say the election had been stolen. Their worst fears about America’s “rigged” system of government would be confirmed. The president who the electors chose—even if it were Hillary Clinton, who beat Trump by over a million votes—would lack legitimacy in the eyes of much of the public. It’s unclear whether such a president could effectively govern. Violence might break out. Moreover, once the precedent was set, future electors would become more likely to act independently again. The process of choosing them would grow fraught. America’s entire system of presidential elections would grow unstable.
It’s a terrifying prospect. The prospect of a Trump presidency, however, is terrifying too, terrifying in unprecedented ways. Which is why, for the first time in modern American history, there’s a plausible case for urging the electors to vote their consciences. The case is not overwhelming. But it’s not absurd. It all depends on how dangerous you think President Trump would be.
Could the danger posed by electing Trump exceed the enormous danger posed by stopping him? It could, for four reasons.
The first is climate change. Trump has repeatedly called it a “hoax.” He’s vowed to “cancel” America’s obligations under the climate agreement signed last year in Paris, which might lead other nations to do the same, and to undo the restrictions on emissions from coal-fired power plants instituted by the Obama administration. According to a study by Lux Research, America’s annual carbon emissions, which would have dropped under a Clinton presidency, will rise sharply under Trump. And if emissions don’t drop, an article this spring in the journal Nature predicts that 13 million Americans who live in coastal areas could find their communities uninhabitable over the next century. Half of Florida’s population would be at risk.
The second reason to think that allowing a Trump presidency might be more dangerous than overturning it is the threat of nuclear war. At several points over the last 70 years, presidents have faced decisions that could have triggered nuclear catastrophe. Harry Truman considered dropping atomic bombs on North Korea in 1950. John F. Kennedy famously said during the Cuban missile crisis that the chances of war with the Soviet Union were “between 1 in 3 and even.” According to Israeli historian Dmitry Adamsky, the Reagan administration’s 1983 war game, Able Archer, which the Soviets misinterpreted as preparation for an American attack, “almost became a prelude to a preventative nuclear strike.” As Jeffrey Goldberg has noted, North Korea—the most bellicose and erratic regime on earth–may have nuclear missiles that can reach the US mainland by the end of Trump’s second term. Which increases the chances that he could face his own moment of nuclear reckoning. In August, MSNBC’s Joe Scarborough reported that, during a private meeting with a “foreign policy expert,” Trump had asked the expert “three times, in an hour briefing, ‘Why can’t we use nuclear weapons?’” In March, Trump asked Chris Matthews, “Somebody hits us within ISIS — you wouldn’t fight back with a nuke?” Trump has also repeatedly declared his desire to be “unpredictable” when it comes to the use of nuclear weapons.
The president can launch nuclear weapons within minutes, on his own authority. In the words of former National Security Agency Director Michael Hayden, “The system is designed for speed and decisiveness. It’s not designed to debate the decision.” Trump is famous for his impulsivity (his self-destructive late night tweets almost cost him the presidential race), his policy ignorance (he twice during the campaign seemed unaware that the US has nuclear weapons on air, land and sea) and his dismissive attitude toward experts (in November he boasted that, “I know more about ISIS than the generals do.”) Which is why 50 former Republican national security officials warned in August that he “would be the most reckless president in American history.”
Does all this mean that, under President Trump, nuclear war is likely? No. But it does mean that it’s significantly more likely than under Hillary Clinton or any other plausible alternative.
The third reason it’s not crazy for electors to consider defying the popular will in their states is the prospect of what Trump might do in the event of a terrorist attack. Last November, Trump said he’d require Muslims to register in a government database. In December, after jihadist terrorists killed 14 people and seriously injured 22 in San Bernardino, California, he demanded a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
Trump has also barred numerous reporters from his rallies, vowed to make it easier to sue journalists for libel and called for investigating Washington Post owner Jeff Bezos’ tax returns in retaliation for his paper’s critical coverage of Trump’s campaign.
What might a President Trump do if terrorists killed hundreds or even thousands on American soil? During times of war and cold war, even more sober presidents have massively violated individual freedom. During World War I, Woodrow Wilson signed the Sedition Act, which made “uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language about the United States government or military” a crime. FDR interned Japanese-Americans during World War II. John F. Kennedy allowed J. Edgar Hoover to bug Martin Luther King’s phone. We don’t know how Trump would respond in a moment of national hysteria, when restricting press freedom and persecuting unpopular minorities became seductively easy. We do know that, based on his past statements, he’d be less restrained by the Bill of Rights than any president in recent memory.
The final reason it’s worth debating an Electoral College rejection of Trump is the potential that his presidency could spark a constitutional crisis. During the campaign, in a stunning break from American tradition, Trump repeatedly suggested that he might not accept the outcome. As one Trump ally told Politico, “If he loses, [he’ll say] ‘It’s a rigged election…I can’t really picture him giving a concession speech, whatever the final margin.”
If defeated in his bid for a second term, would Trump leave the White House? Would he leave if Congress impeached him? Would he abide by a decision of the Supreme Court that thwarted his agenda? “I can easily see a situation in which he would take the Andrew Jackson line,” declared the eminent libertarian-conservative legal scholar Richard Epstein in June. “[Chief Justice] John Marshall has made his decision; now let him enforce it.”
The problem with all these hypothetical scenarios is that they’re just that: hypothetical. The dangers posed by a Trump presidency are speculative. The dangers posed by using the Electoral College to forestall a Trump presidency are more certain. Moreover, some of the very characteristics that make a Trump presidency so frightening also make his response to being defeated by the electors frightening. If Trump was prepared to the contest defeat on November 8, it’s hard to imagine him accepting it on December 19.
Luckily for Trump, the chances of the electors actually defeating him on that date are extremely slim. Two electors from states that supported Hillary Clinton are reportedly trying to convince their colleagues from states that supported Trump to vote for other Republicans, thus denying Trump a majority and sending the presidential election to the House of Representatives.
But these days, electors are not the independent-minded figures Hamilton envisioned. They’re party activists chosen for their loyalty. Many states even have laws requiring electors to abide by the popular vote, though David Pozen, a law professor at Columbia (and author of a smart recent blog post on Trump and the Electoral College) told me that such laws may well be unconstitutional.
If it’s so unlikely that the electors would defeat Trump, why is the topic even worth discussing? Because, given Trump’s likely ascension to the presidency, Americans must talk differently about democracy itself. Yes, the democratic features of America’s political system are precious. But so are some of the undemocratic ones, the ones that prevent people’s basic rights from being taken from them by a show of hands. Right now, the nature of American public discourse—which treats democracy as an unambiguous good—makes that difficult to say. Rarely do Americans publicly acknowledge the tradeoff between democracy and liberty, between popular will and minority rights, which so concerned the framers. If Trump threatens the rights of Muslims or journalists, if he pressures the Federal Reserve or defies the Supreme Court, he will likely do so in democracy’s name. He may have public opinion on his side. If Americans can’t defend their system’s limitations on democracy, they’ll have trouble resisting him.
Democracy is a crucial component of American government. But, as Fareed Zakaria has argued, more democracy isn’t always better. For most of American history, political parties were not internally democratic. They aren’t in most democracies around the world. Yet during the primaries, when GOP elites sought to block Trump’s nomination, the media generally described their efforts as undemocratic. Which made them almost impossible to publicly defend.
I didn’t defend them either. I was wrong. Before this election, I supported abolishing the Electoral College. Now I think America needs electors who, in times of national emergency, can prevent demagogues from taking power.
Go ahead and call me an elitist; Donald Trump has changed the way I view American government. Before this year, I would have considered Hamilton’s demand for independent-minded electors who could prevent candidates with “talents for low intrigue, and the little arts of popularity” from winning the presidency to be antiquated and retrograde. Now I think the framers were prescient and I was naïve. Eighteen months ago, I could never have imagined President Donald Trump. Now I’m grateful that, two hundred and twenty-seven years ago, they did.
OCTOBER 29, 2020
As Americans await the quadrennial running of the presidential obstacle course now known as the Electoral College, it’s worth remembering why we have this odd political contraption in the first place. After all, state governors in all 50 states are elected by popular vote; why not do the same for the governor of all states, a.k.a. the president? The quirks of the Electoral College system were exposed in 2016 when Donald Trump secured the presidency with an Electoral College majority, even as Hillary Clinton took a narrow lead in the popular vote.
Some claim that the founding fathers chose the Electoral College over direct election in order to balance the interests of high-population and low-population states. But the deepest political divisions in America have always run not between big and small states, but between the north and the south, and between the coasts and the interior.
One Founding-era argument for the Electoral College stemmed from the fact that ordinary Americans across a vast continent would lack sufficient information to choose directly and intelligently among leading presidential candidates.
This objection rang true in the 1780s, when life was far more local. But the early emergence of national presidential parties rendered the objection obsolete by linking presidential candidates to slates of local candidates and national platforms, which explained to voters who stood for what.
Although the Philadelphia framers did not anticipate the rise of a system of national presidential parties, the 12th Amendment—proposed in 1803 and ratified a year later— was framed with such a party system in mind, in the aftermath of the election of 1800-01. In that election, two rudimentary presidential parties—Federalists led by John Adams and Republicans led by Thomas Jefferson—took shape and squared off. Jefferson ultimately prevailed, but only after an extended crisis triggered by several glitches in the Framers’ electoral machinery. In particular, Republican electors had no formal way to designate that they wanted Jefferson for president and Aaron Burr for vice president rather than vice versa. Some politicians then tried to exploit the resulting confusion.
Enter the 12th Amendment, which allowed each party to designate one candidate for president and a separate candidate for vice president. The amendment’s modifications of the electoral process transformed the Framers’ framework, enabling future presidential elections to be openly populist and partisan affairs featuring two competing tickets. It is the 12th Amendment’s Electoral College system, not the Philadelphia Framers’, that remains in place today. If the general citizenry’s lack of knowledge had been the real reason for the Electoral College, this problem was largely solved by 1800. So why wasn’t the entire Electoral College contraption scrapped at that point?
Standard civics-class accounts of the Electoral College rarely mention the real demon dooming direct national election in 1787 and 1803: slavery.
At the Philadelphia convention, the visionary Pennsylvanian James Wilson proposed direct national election of the president. But the savvy Virginian James Madison responded that such a system would prove unacceptable to the South: “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” In other words, in a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College—a prototype of which Madison proposed in this same speech—instead let each southern state count its slaves, albeit with a two-fifths discount, in computing its share of the overall count.
Virginia emerged as the big winner—the California of the Founding era—with 12 out of a total of 91 electoral votes allocated by the Philadelphia Constitution, more than a quarter of the 46 needed to win an election in the first round. After the 1800 census, Wilson’s free state of Pennsylvania had 10% more free persons than Virginia, but got 20% fewer electoral votes. Perversely, the more slaves Virginia (or any other slave state) bought or bred, the more electoral votes it would receive. Were a slave state to free any blacks who then moved North, the state could actually lose electoral votes.
If the system’s pro-slavery tilt was not overwhelmingly obvious when the Constitution was ratified, it quickly became so. For 32 of the Constitution’s first 36 years, a white slaveholding Virginian occupied the presidency.
Southerner Thomas Jefferson, for example, won the election of 1800-01 against Northerner John Adams in a race where the slavery-skew of the electoral college was the decisive margin of victory: without the extra electoral college votes generated by slavery, the mostly southern states that supported Jefferson would not have sufficed to give him a majority. As pointed observers remarked at the time, Thomas Jefferson metaphorically rode into the executive mansion on the backs of slaves.
The 1796 contest between Adams and Jefferson had featured an even sharper division between northern states and southern states. Thus, at the time the Twelfth Amendment tinkered with the Electoral College system rather than tossing it, the system’s pro-slavery bias was hardly a secret. Indeed, in the floor debate over the amendment in late 1803, Massachusetts Congressman Samuel Thatcher complained that “The representation of slaves adds thirteen members to this House in the present Congress, and eighteen Electors of President and Vice President at the next election.” But Thatcher’s complaint went unredressed. Once again, the North caved to the South by refusing to insist on direct national election.
Akhil Reed Amar teaches constitutional law at Yale University. This essay borrows from his recently published book, The Constitution Today.
In modern practice, the Electoral College is mostly a formality. It is true, as the National Archives and Records Administration notes, that there is “no Constitutional provision or Federal law that requires Electors to vote according to the results of the popular vote in their states.” But the U.S. Supreme Court ruled in 1952 that states could require electors to take a pledge to support the party’s presidential and vice presidential nominees from its national convention. And many do. Some even prescribe fines of $500 to $1,000 to so-called “faithless electors” for not voting for the party’s nominee, or allow them to be replaced by an alternate.
Whether those pledges or fines could be upheld by the Supreme Court is unclear. As the National Archives notes, “No Elector has ever been prosecuted for failing to vote as pledged.” In addition, more than 20 states do not have a state law or party or state pledge requiring electors to back the candidates with the most votes in their state.
“There is a lot of uncertainty because it is such a scarce occurrence,” Chris Hughes, a staff attorney at FairVote, a voting-rights advocacy group, told us.
According to FairVote, there have been 157 “faithless electors” in the history of the U.S. But even that figure is deceptively high. Of those, 71 votes were changed because the original candidate died before the Electoral College cast its votes. In all, the group states, “82 electoral votes were changed on the personal initiative of the elector.” None has affected the outcome of a presidential election.
“Presidential Electors are theoretically free to vote as their consciences dictate, something the founders anticipated Electors would indeed do under Hamilton’s Electoral College invention,” Laurence Tribe, a professor of constitutional law at Harvard Law School, told us via email.
Tribe said the constitutionality of imposing a fine on a “faithless elector” is “open to doubt, and it is even more doubtful that a court would compel any Elector to be ‘faithful’ to the State’s winner-take-all outcome. Nor is it likely that the Vice President, who presides over the process of opening the Electors’ ballots and counting the votes cast by the 538 Electors, would feel free to ‘correct’ a faithless Elector’s vote.
There is another huge practical hurdle to the scenario called for in the petition. The electors are chosen by the state parties. They are usually people heavily involved in the campaign of their party’s nominee or active in the state party.
“The electors are mostly people connected to the political party leadership in their states,” Richard Pildes, a professor of constitutional law at New York University School of Law, told us via email. “So if you try to picture how this might happen, it would have to be the party leadership in some group of states that is convinced to abandon Trump.”
Kermit Roosevelt, professor of law at the University of Pennsylvania Law School, put it succinctly. He said that while there is “no clear requirement in the Constitution that electors vote for the candidate they’re pledged to … it’s very unlikely that defections will happen now.”