MACKENZIE GARRITY—Hillary Clinton won the national popular vote in 2016, yet Donald Trump was elected President. In fact, Clinton received approximately 3 million more votes than Trump. And so we ask: what swings the vote? The Electoral College. In fact, there are five Presidential elections wherein the popular vote winner was defeated by the Electoral College process: 1824 (Andrew Jackson elected over John Quincy Adams’ popular vote win), 1876 (Rutherford Hayes elected over Samuel Tilden’s popular vote win), 1888 (Benjamin Harrison elected over Grover Cleveland’s popular vote win), 2000 (George W. Bush elected over Al Gore’s popular vote win), and 2016 (Trump elected over Clinton’s popular vote win).
The process behind the Electoral College (the “College”) has shaped the way we participate in Presidential elections. The College is the reason a state generally does not divide its vote even if the state’s voters are divided among multiple candidates. Traditionally, every state’s College votes are allocated completely to one Presidential candidate. Each state receives a number of Electors equal to its representation in Congress: one Elector for each of the state’s House representatives and two Electors for the state’s Senators. These rules mean that it does not matter if the Representatives or Senators from a state are divided among multiple political parties; when election night comes, the Presidential candidate with the most votes selects the Electors. This happens because a state’s voters are truly voting for a Presidential candidate’s “slate” of Electors.
48 states have winner-take-all statutes that allocate every College vote to the candidate who wins the state-wide popular vote. The winner-take-all statutes attempt to bind electors from a candidate’s “slate” to voting in line with the winner of the state popular vote. In fact, some states have “Faithless Elector” laws that seek to remove or fine electors who fail to vote for the candidate who wins the popular vote in his or her state. The Supreme Court agreed in mid-January 2020 to hear challenges to these “Faithless Elector” laws from Washington and Colorado.
Seems crazy? Others agree; former Presidential candidate Pete Buttigieg says it is time to rid the country of the College and move to a popular vote system. Buttigieg has called the College “undemocratic” because one person does not equate to one Presidential vote. In states where the outcome of the popular vote is a foregone conclusion, Presidential candidates dedicate no campaign stops to the state’s voters and rarely focus on the issues important to that state. In the 2016 election, the Presidential candidates neglected to visit 24 states and D.C. during their campaigns. The image below is a rendering that shows each state drawn in a size proportional to the number of campaign events held in the state during the 2016 election, with missing states receiving 0 campaign visits.
When pressed about whether the Republican party may resist the Constitutional change required to modify the country’s election rules, Buttigieg explained of his proposal: “So maybe when we make this reform, we set it to take effect in the 2030s, when it’s not clear which party is going to benefit.” Other former democratic Presidential candidates Elizabeth Warren, Kamala Harris, and Beto O’Rourke, also expressed support for elimination of the Electoral College. During his campaign, Buttigieg recognized that a Constitutional amendment comes with immense procedural and political hurdles, and that, therefore, elimination of the Electoral College would not be an easy undertaking.
While running, Buttigieg’s campaign website advocated for the National Popular Vote Interstate Compact. The Compact is constituted of states who agree to allocate their Electoral College votes to the candidate who wins the popular vote nationwide. The beauty of the Compact is that it is a state-based approach that does not require the elimination of the College but will still recognize the winner of the national popular vote. The Compact will only go into effect if the states involved make up a total of at least 270 Electoral College votes—the number needed to win a Presidential election. The National Popular Vote bill has been enacted in 16 jurisdictions and currently covers 196 electoral votes (it needs 74 more votes to go into effect). Optimistically, the bill has passed at least one chamber in state legislatures that cover 75 College votes and has been endorsed by a total 3,408 state legislators from all 50 states.
“[A]t the end of the day, I think most Americans, of any party, ought to be able to get on board with the idea that one person, one vote, counting equally, is the fairest way to choose our President.” – Pete Buttigieg.