Abolishing the Electoral College without a Constitutional Amendment

About the Author: Joel Park is a first year law student at American University- Washington College of Law. Joel graduated from Brown University and hopes to pursue a career in government focusing on advancing civil rights and criminal justice reform after graduating law school. 

 

The November 2020 election saw the highest voter turnout in a century with Joe Biden winning seven million more votes than Donald Trump.[1],[2]  Yet, if 21,847 voters (5,229 in Arizona, 6,335 in Georgia, and 10,283 in Wisconsin) voted for Trump instead of Biden, Biden would have lost the election despite his lead in the national popular vote.[3]  This hypothetical is not difficult to imagine.  In two of the last six elections, the candidate who lost the popular vote won the presidency because of the Electoral College.  In 2000, George W. Bush lost the popular vote by more than 500,000 votes, and in 2016, Donald Trump lost the popular vote by more than 2.8 million votes.[4],[5]  These mismatches between the popular vote and the Electoral College erode the democratic legitimacy of the one political office that is supposed to represent all Americans, the President of the United States.

Unlike a national popular vote, states vote for President through the Electoral College.  N The Electoral College divides 538 electoral votes among the States and D.C. with each receiving a minimum of three votes based on the size of the state’s congressional delegation.  With the exception of Maine and Nebraska, states assign their electoral votes based on the winner of the statewide popular vote in a winner-takes-all system.[6]  Thus, the presidential election is fifty-one separate elections as candidates compete for enough electoral votes to reach 270.  Inequity is built into this system.  As each state is assigned at least three votes, less populated states like Wyoming, whose electoral votes each represent 193,000 residents, are proportionately overrepresented compared to more populated states like Texas, whose electoral votes each represent 763,000 residents.[7]   With this built-in variance between the value of electors, a candidate could build an electoral college winning coalition of the least populated states representing 23 percent of the population.[8]  While it is unlikely that this coalition of sparsely populated states would vote for the same candidate, many Americans still support abolishing this system.

While the Electoral College does not explicitly favor one political party over another, support for the institution falls along partisan lines.  According to a recent Gallup poll, 61 percent of Americans support abolishing the Electoral College in favor of a national popular vote.[9]  The poll found that 89 percent of Democrats, 68 percent of independents, and 23 percent of Republicans supported this type of reform.[10]  Although reform is popular among Americans, it does not have broad bipartisan support.

Despite the lack of broad bipartisan support, Senator Brian Schatz (D-HI) introduced a constitutional amendment to abolish the electoral college and establish the direct election of presidents through a national popular vote.  Senator Schatz’s proposal would eliminate the Electoral College and expand voting to include U.S. territories which currently do not have electoral votes.[11]  Because the Electoral College is a constitutional provision, it can only be removed through a constitutional amendment.  This process would require two-thirds majorities in both the House and Senate as well as three quarters of the state legislatures to ratify.  In the current polarized political climate, this proposal would unlikely be ratified.

As a constitutional amendment to abolish the Electoral College is unlikely to pass, the National Popular Vote Interstate Compact (NPVIC) could effectively accomplish the same outcome of replacing the Electoral College with a popular vote.  Once enacted by enough states, the signatories would award their electors to the winner of the national popular vote.[12]  Because these states would represent the 270 votes required for victory, their selection would decide the presidential election.  Fifteen states and D.C. have joined the NPVIC representing 196 electoral votes.[13]  The measure is currently pending in nine state legislatures representing 88 electoral votes.[14]  Should all these states adopt, the NPVIC will have more than the necessary 270 electoral votes to implement what in effect is a national popular vote.  With this majority of the electoral votes, the NPVIC would effectively nullify the current electoral college system by relying on a national popular vote to elect the President without facing the same hurdles to enactment. While a constitutional amendment abolishing the electoral college would be preferable, the barriers to enactment mean the more conservative, state-based approach of the NPVIC is a more viable path to ensuring one person, one vote.

 

[1] Biden Elected 46th President of the United States, Washington Post (Dec. 13, 2020), https://www.washingtonpost.com/elections/.

[2] Kevin Schaul et. al., 2020 Turnout Is the Highest in over a Century, The Washington Post (Dec. 1, 2020), https://www.washingtonpost.com/graphics/2020/elections/voter-turnout/.

[3] Agreement among the States to Elect the President by National Popular Vote, National Popular Vote, https://www.nationalpopularvote.com/sites/default/files/1-pager-npv-v203-2020-11-27.pdf (last visited Dec. 1, 2020).

[4] Federal Elections Commission, Federal Elections 2000 Election Results for the U.S. President, the U.S. Senate and the U.S. House of Representatives (2001), https://www.fec.gov/introduction-campaign-finance/election-and-voting-information/federal-elections-2000/.

[5] Federal Elections Commission, Federal Elections 2016 Election Results for the U.S. President, the U.S. Senate and the U.S. House of Representatives (2017) https://www.fec.gov/resources/cms-content/documents/federalelections2016.pdf.

[6] Split Electoral Votes in Maine and Nebraska, 270toWin, https://www.270towin.com/content/split-electoral-votes-maine-and-nebraska/ (last visited Dec. 1, 2020).

[7] Dan Solomon, Texas is Screwed More by the Electoral College Than Any Other State, Despite Our Size, Texas Monthly (May 28, 2020), https://www.texasmonthly.com/politics/texas-screwed-electoral-college/.

[8] Danielle Kurtzleben, How To Win The Presidency With 23 Percent Of The Popular Vote, NPR (Nov. 2, 2016), https://www.npr.org/2016/11/02/500112248/how-to-win-the-presidency-with-27-percent-of-the-popular-vote.

[9] Megan Brenan, 61% of Americans Support Abolishing Electoral College, Gallup (Sep. 24, 2020), https://news.gallup.com/poll/320744/americans-support-abolishing-electoral-college.aspx.

[10] Id.

[11] S.J.Res. 17, 116th Congress (2019).

[12] Agreement among the States to Elect the President by National Popular Vote, National Popular Vote, https://www.nationalpopularvote.com/written-explanation (last visited Dec. 1, 2020).

[13] Id.

[14] Id.

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