Four Crazy Electoral College Rules

by Rob Richie // Published September 26, 2012
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We're in the homestretch of the presidential campaign and, once again, all the talk is about a handful of swing states. That's because Americans do not vote directly for president. When voters cast a ballot for their preferred candidates, they are choosing their state's electors. As members of the Electoral College, those electors then the pick the president in December.

The current system is one states can change by statute by enacting the National Popular Vote plan. As it is, however, the rules in place result in campaigns ignoring most states because of rules established by over time. Due to partisan incentives, nearly all states now use a "winner-take-all" rule -- meaning that all of a state's electoral votes go to the candidate who wins a plurality of the vote in that state. With a winner-take-all rule, there is no point in spending a dime to generate turnout or persuade voters in states where you are comfortably ahead or hopelessly behind.

As a result, the campaigns and their super PACs are completely bypassing voter contact in some 41 states (and the District of Columbia) and instead spending their billions of dollars trying to affect swing voters in the remaining nine.

The White House's political team has had to factor in the Electoral College map from day one. President Obama has been to North Carolina 19 times since his inauguration, but has yet to visit South Carolina -- primarily because his 45% vote share in South Carolina in 2008 wasn't enough to put the state in play in 2012, unlike North Carolina, where he won with 49%.

Winner-take-all rules are why a candidate can be the choice of American voters in November, but lose among electors in December. Four of our less effective presidents were selected this way -- John Quincy Adams, Rutherford B. Hayes, Benjamin Harrison and George W. Bush. Imagine if one out of every fourteen times you got on a plane bound for Miami, you ended up in Boston.

Discounting the national popular vote and making the presidential race about a few swing states is bad enough, but a closer look at the Electoral College shows how it could get even worse. Here's my list of four particularly crazy rules governing the current Electoral College system.

Faithless electors: Until 1872, at least one state didn't vote for president, instead allowing state legislators to pick electors. While all states now hold popular vote elections, the American people still go to the polls to pick electors who then cast the presidential votes that count.

Although some zealous Electoral College defenders in fact want electors to have independent judgment -- e.g., vote for candidate based on their own views -- that's not the way it works. The campaigns and their parties select electors whom they expect to be reliable partisans -- and they nearly always are, always voting the party line if their party's candidate wins the state.

Yet electors remain real people who can do what they want. This month, several Republican electors revealed that they are fervent backers of former presidential candidate Ron Paul. Frustrated by how their candidate had been treated by the Romney campaign, they indicated there were considering casting electoral votes for Ron Paul instead of Mitt Romney if given the chance.

Human electors can also be, well, human. In 2004, a Democratic elector from Minnesota cast a ballot twice for John Edwards -- once for vice president, as expected, but also for president instead of the state's popular vote winner John Kerry. Keeping your "Johns" straight isn't always easy, and Edwards will go down in history as finishing third in the Electoral College in 2004.

Electoral College ties throwing elections to Congress: With only 538 electors (matching the number of Members of Congress for each state, given that Washington, D.C. has three electors), the two leading candidates can end up in a 269-269 tie in the Electoral College. With so many states locked down for each candidate and very few swing states, it's surprisingly easy to show several plausible outcomes for the 2012 election to result in each candidate winning exactly 269 electoral votes.

You might think that the tie-breaker in the case of an even Electoral College tally would be the national popular vote. But it's not. Instead, we turn selection of the president and vice-president over to that noted body of intellectuals with a Gallup poll approval rating of 13%: Congress.

Congress also picks the president if a third candidate wins electoral votes and prevents an Electoral College majority. That happened in 1824 and nearly happened again in 1968, when pro-segregation candidate George Wallace won several southern states. A shift of less than 2% of California's popular vote from Richard Nixon to Hubert Humphrey would have given Wallace the power to effectively award the White House to the candidate who gave him the best deal -- with his leverage over Nixon being that Humphrey would have had the votes in Congress.

One state, one vote: In the event that the U.S. House picks the president, it chooses among the three candidates with the most electoral votes -- meaning a candidate could become president even without finishing in the top two in the popular vote. But what's even more shocking is that the House vote isn't based on one Member, one vote.

Instead, each state has one vote. That means Wyoming gets one vote -- and so do Texas and California. If a state's congressional delegation is deadlocked, it might not be able to cast a vote. To be elected president, a candidate needs votes from an absolute majority of states. In 1801, it took days of voting and 35 ballots before the House finally picked Thomas Jefferson over Aaron Burr -- the same Burr who a few years later killed Alexander Hamilton in a duel.

The Senate picks the vice president -- and maybe the president: While the House tries to find 26 state votes for the president, the Senate gathers to pick the vice president on the basis of one Senator, one vote. The new vice president does not need to be the running mate of the House's pick for president.

Furthermore, if the House deadlocks on picking a president, the Senate's pick for vice president becomes president. Yet the 12th amendment detailing this procedure is silent on what happens if the Senate fails to pick a vice president. The minority party in the Senate could deny quorum by refusing to attend, and we also might have a 50-50 tie in the Senate -- an outcome that many election watchers this year see as quite possible.

When you consider these four rules and the depressing condition of presidential elections based on swing states rather than the popular vote, it's no wonder that the Electoral College has been the target of more proposed constitutional amendments than any other constitutional provision.

I'm all for direct election of the president with a majority runoff rule or instant runoff, as is the norm in most of the world holding elections for president. But here are two sensible ideas for change that we can do right now.

An Amendment to Fix the Electoral College: The American public overwhelmingly favors direct election of the president, but even those defending the current system should be ready to get on board with a more tailored amendment with three provisions: requiring every state to award electoral votes based on a popular vote in that state or the nation as a whole; replacing human electors with votes to be cast automatically according to the state's rules; and awarding the presidency to the national popular vote winner if no candidate wins an Electoral College majority.

Adoption of the National Popular Vote plan: Advocates of a national popular vote for president are focusing their reform efforts on a sensible proposal that has been steadily advancing in state legislatures: the National Popular Vote plan for president.

The National Popular Vote plan is an interstate agreement that relies on states' constitutional powers to allocate electoral votes and to enter into binding interstate compacts. It guarantees election of the presidential candidate who wins the most popular votes in all 50 states and the District of Columbia. Participating states will award all their electoral votes as a block to the winner of the national popular vote once the law is passed in states holding a majority of the nation's electoral votes. As of today, it has been enacted in states representing nearly half of the 270 electoral votes necessary to trigger the agreement in 2016.

The National Popular Vote plan would greatly reduce the chance of faithless electors causing mischief, as the winning candidate would almost certainly end up with a lopsided margin in the Electoral College. It also would prevent an Electoral College tie, make every vote equal in all states and ensure election of the candidate with the most votes.

Our founders improved the Electoral College once in the Constitution: the 12th amendment, which ended the mess caused by electors casting two votes rather that one. They also regularly changed state laws on how to allocate electoral votes. If alive today, they would be the first in line to take these sensible steps to fix a broken Electoral College system.