Jonah Patel
The Electoral College system in the United States has been a subject of debate, with critics arguing that it unfairly represents voters. The system allows for faithless electors, who vote against their pledged candidate, and can potentially change election outcomes. While the Supreme Court has upheld the constitutionality of state laws requiring electors to pledge their votes to the candidate who wins the most votes in their state, it has also stated that the Constitution does not require electors to be completely free to act as they choose. The debate over the Electoral College has led to proposals for reform or a shift to direct popular voting, with some states already supporting an interstate pact that honours the national popular vote.
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What You'll Learn
The partisan divide on the Electoral College
The Electoral College system has long been a source of partisan divide in the United States, with many calling for its abolition. The 12th Amendment outlines the process for electing the president and vice president, and while it has been amended to prevent ballot confusion, it has also been exploited, as seen in the efforts to overturn the 2020 election results.
The Electoral College consists of electors from each state who cast their votes to select the president and vice president. The number of electors per state varies, with some states having more electors due to population disparities, which is a controversial aspect of the system. The selection process for electors also differs between states, with political parties nominating slates of potential electors at state or national conventions.
The partisan divide regarding the Electoral College is evident in the differing preferences for electing the president. Democrats tend to favour a direct popular vote, where the candidate with the most votes wins, while Republicans prefer the Electoral College system. This divide is further highlighted by surveys conducted after the 2016 election, where a higher percentage of Democratic respondents supported amending the Constitution to abolish the Electoral College and implement direct popular voting.
The concept of "faithless electors" adds another layer to the debate. Faithless electors are those who vote against their pledge, and while there are no federal laws or constitutional provisions binding an elector's vote, some states have implemented laws and penalties to address this. The Supreme Court has ruled that states have the right to require pledges from electors and enforce them, but the constitutionality of removing faithless electors is still under debate.
The National Popular Vote Interstate Compact (NPVIC) has been proposed as a potential solution, where electors commit to voting for the nationwide popular vote winner. However, this agreement has not yet reached the required electoral majority to take effect. The Electoral College system's controversies and complexities have led to ongoing discussions and efforts to reform or abolish it, reflecting the deep partisan divide on this issue.
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The National Popular Vote Interstate Compact
The NPVIC is a response to the shortcomings of the current electoral system, where "winner-take-all" laws allow a candidate to win all of a state's electoral votes by receiving the most popular votes in that state. This has resulted in five out of 46 presidents being elected without winning the nationwide popular vote. For example, in 2004, President Bush would have lost if 59,393 voters in Ohio had changed their minds, despite leading nationally by over 3 million votes. The NPVIC seeks to address this issue by awarding all the participating states' electoral votes to the candidate who wins the overall popular vote across all 50 states and the District of Columbia.
The compact is designed to modify how participating states implement Article II, Section 1, Clause 2 of the U.S. Constitution, which gives state legislatures the power to appoint electors to vote in the Electoral College. By coordinating their efforts, the states in the compact can ensure that the national popular vote winner also secures a majority in the Electoral College. This approach avoids the need for a constitutional amendment, as suggested in early proposals for electoral college reform.
The NPVIC faces challenges, including the uncertainty of how voters will react if their state electors vote against the popular vote of their state. Additionally, it is currently well short of the required 270 electoral votes to take effect, needing an additional 61 votes. Despite these challenges, the NPVIC represents an attempt to address the issue of electoral votes unfairly representing voters by prioritising the national popular vote over state-level results.
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The role of electors and faithless electors
The United States Constitution contains very few provisions relating to the qualifications of electors. Article II, section 1, clause 2 provides that no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an elector. As a historical matter, the 14th Amendment provides that State officials who have engaged in insurrection or rebellion against the United States or given aid and comfort to its enemies are disqualified from serving as electors. This prohibition relates to the post-Civil War era.
Electors are chosen in advance of the general election by political parties. Electors pledge to vote for the candidate from their party if that candidate wins the most votes in the state. Electors are typically chosen and nominated by a political party or the party's presidential nominee, and are usually party members with a reputation for high loyalty to the party and its chosen candidate.
A "faithless elector" is an elector who does not vote for the candidates for U.S. President and U.S. Vice President for whom the elector had pledged to vote, and instead votes for another person for one or both offices or abstains from voting. Faithless electors have never changed an election outcome. However, in a close election, they could matter greatly.
The U.S. Supreme Court has held that the Constitution does not require that electors be completely free to act as they choose and therefore, political parties may extract pledges from electors to vote for the parties' nominees. The Supreme Court decided in 2020 that states can enact requirements on how electors vote. As of 2024, 38 states and the District of Columbia have laws that require electors to vote for the candidates for whom they pledged to vote, though in half of these jurisdictions, there is no enforcement mechanism. In 14 states, votes contrary to the pledge are voided and the respective electors are replaced, and in two of these states, they may also be fined.
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The selection process for presidential electors
Nomination of Electors:
Candidates for electors are typically nominated by state political parties in the months leading up to the election. The process can vary by state, with some states using primaries to select electors, similar to the process for selecting other candidates. Other states may use party conventions or have the campaign committee of each candidate name their electors.
Requirements to be an Elector:
The U.S. Constitution provides minimal qualifications for electors. Article II, Section 1, Clause 2 states that no Senator, Representative, or person holding an office of trust or profit under the United States shall be appointed as an elector. Additionally, the 14th Amendment disqualifies state officials who have engaged in insurrection or rebellion against the United States.
Selection of Electors:
Each state has its laws for selecting electors, and they can be chosen through popular election or legislative appointment. In a popular election, voters cast ballots for individuals running for presidential elector, either through a general ticket or a short ballot. The general ticket involves voting for each elector position separately, while the short ballot allows voters to choose an entire slate of electors. In some states, the names of the potential electors may appear on the ballot alongside the presidential candidates.
Appointment of Electors:
After the general election, each state certifies the results and appoints its electors accordingly. The winning presidential candidate's slate of potential electors typically become the state's appointed electors. However, this process can vary, as seen in Nebraska and Maine, which have a proportional distribution of electors.
Meeting of Electors:
The appointed electors then meet to cast their votes for the President and Vice President of the United States. While electors are expected to vote for the candidate from their party, there have been instances of "faithless electors" who vote against their pledge. The consequences for faithless electors vary by state, with some states imposing fines or voiding their votes.
Counting of Electoral Votes:
The electoral votes are then counted, and the candidate who receives a majority of votes is elected as President. In cases where no candidate receives a majority, a contingent election is held, with the House of Representatives and the Senate responsible for electing the president and vice president, respectively.
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The Electoral College's impact on voters' power
The Electoral College system in the United States has been a topic of debate, with many calling for its abolition. The College is made up of electors from each state who cast votes to select the President and Vice President. The number of electors each state has is dependent on the number of representatives and senators, with a minimum of three electors per state.
The impact of this system on voters' power is a complex issue. On the one hand, the Electoral College can be seen as a way to ensure that less populous states still have a say in the election outcome. Each state's electors vote for the candidate who has received the most votes in their state, meaning that the voters in that state have some influence over who becomes President.
However, critics argue that the Electoral College unfairly represents voters. This is because the candidate who wins the popular vote nationwide may not become President if they do not receive the majority of electoral votes. This has happened on more than one occasion, most recently in 2016 when Donald Trump won the presidency despite losing the popular vote by nearly 3 million.
The Electoral College system also allows for the occurrence of "faithless electors", which further complicates the impact on voters' power. Faithless electors are those who vote for someone other than the candidate they pledged to support. While this has not changed the outcome of an election, it has, in the past, affected the result of a vice-presidential election. The constitutionality of state laws regarding faithless electors has been disputed, with some states imposing sanctions on these electors, and others arguing that electors should be free to exercise their independent judgment.
Additionally, the Electoral College system can be manipulated through partisan gerrymandering, which gives voters in certain districts more power than others. This further diminishes the power of voters who are not represented by these districts.
Overall, the Electoral College has a significant impact on voters' power in the United States. While it allows for representation of less populous states, it can also lead to the disenfranchisement of voters who do not agree with the electors' choices or who are affected by gerrymandering.
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Frequently asked questions
A "faithless elector" is an elector who votes for someone other than the candidate they pledged to vote for.
The U.S. Constitution does not address the concept of "faithless electors". The Supreme Court has ruled that states have the right to require electors to pledge to vote for the candidate whom their party supports, and the right to remove potential electors who refuse to pledge prior to the election. However, it has also been ruled that electors have a constitutional right to vote for the presidential candidate of their choice and are not bound by any prior pledges they may have made.
Electors are chosen in advance of the general election by political parties. Electors pledge to vote for the candidate from their party if that candidate wins the most votes in the state.
Each state receives at least three electors, one per representative and two for their senators. The voters in each state select their state's electors by casting their ballots. Once each state's electors vote, the certificates are sent to Congress. The candidate who receives a majority, 270 electoral votes, is elected President.
