The Electoral College: A Constitutional Flop

by Ambassador Thomas Graham (Retired) and David Bernell

The blunders, failures, and corruption of Donald Trump and his administration – Iran, inflation, the $1.7 billion payout – continue to dominate the news. In the midst of all these things, there are a number of developments that fly below the radar. One of these occurred in the state of Virginia, which took action in April to try and end the use of the electoral college to elect presidents in the United States. How can a state do this? And why are they doing this now?

Governor Abigail Spanberger signed a law that brings Virginia into the National Popular Vote Interstate Compact (NPV). This is an effort to bring enough states into an agreement that commits each of them to giving all the electoral college votes in their state to the winner of the popular vote nationwide in presidential elections, not the to the candidate that wins the most votes in their state. It doesn’t abolish the electoral college. It just creates a new law to determine which candidate will get Virginia’s electoral votes. This would guarantee the presidency to whoever wins the most votes in the whole country, not to the person who can assemble election victories a collection of states that gets them to 270 electoral votes, the number needed to win the American presidency. The law only goes into effect when enough states – whose combined electoral votes reach at least 270 – approve a similar measure. Until that time, it’s business as usual.

The NPV is motivated by the idea that an election should be decided by the number of votes a candidate gets. This is how every other election works in the United States. The presidential election, however, is based on a system that has some very different features. First of all, outcomes depend where voters are located. Second, presidential elections, in effect, give votes to territory in addition to people. And third, the current system is based on a set of political compromises over 200 years ago that involved settling differences about how slaves should be counted in the new United States of America.

The electoral college has never lived up to the expectations that led to its creation. And there is a reason that no other country in the world uses such a system such as this any longer to choose a democratically elected national leader (though several did in the past): it is considered anti-democratic to do so.

An American Compromise

In Philadelphia in 1787, when the founders wrote the US Constitution, one of the most contentious issues involved deciding how the president should be elected. No country in the world at the time held democratic elections to choose their leaders, so the constitutional convention was breaking new ground. One idea was to have Congress choose the president, but this was opposed by those who wanted to ensure a separation of powers between the executive and legislative branches.

There was also significant opposition to a straight popular vote. The average voter wasn’t thought to have the ability to be fully informed about the candidates. Thomas Jefferson described voters as “well-meaning, but uninformed people,” while George Mason went further, saying that voters picking the president would be like “refer(ring) a trial of colors to a blind man.” The distrust of a “democratic mob” or what later became termed a “tyranny of the majority” was too great to allow for this. Even worse, the founders feared that voters could elect a populist demagogue who would erode democratic government and accumulate massive powers. After more than 30 votes on various arrangements, the founders settled on the electoral college as the framework to select a president. The system relied on intermediaries who wouldn’t be chosen by Congress or the people. Instead, each state would determine its own way to appoint independent “electors.” The thought was that these people would be informed citizens who would deliberate together in their respective states, and then cast the actual ballots to choose the president.

In addition, the number of votes each state got was based on the combined number of Senators and Representatives each state held in Congress. The number of Representatives itself was based on the Constitution’s “three-fifths compromise,” which counted slaves as three-fifths of a person in determining a state’s population, and therefore the size of its Congressional delegation. This compromise was key to keeping slave states in the union. It allowed them to have more votes in Congress and more votes for the presidency, without having the requisite number of actual voters in their states.

A key change was made in 1804 with the passage of the 12^th Amendment, which allowed the President and Vice President to be elected on a single ticket, (to avoid the problem by which Thomas Jefferson and Aaron Burr ended up in an electoral college tie in the election of 1800). Otherwise this makeshift system – which was produced in a different time to address different concerns – is still the one we have today. The founders are often held up as shining examples of unparalleled wisdom, but they were far from perfect. After all, James Madison recalled in his later writings that the decision on the electoral college was reached in the Constitutional Convention largely out of “fatigue and impatience.”

The founders actually believed that Congress would end up electing the president. The Constitution says that if no one wins an electoral college majority, the decision would go to the House of Representatives to decide, with each state getting one vote. It was believed that in most elections a multitude of candidates would divide up the vote, forcing the decision on the House (the Senate gets the job of choosing the Vice-President in these cases). However, the only times the House chose the president were in 1800 and 1824, and those were highly contentious fights which brought Thomas Jefferson and John Quincy Adams to the White House.

Neither of the visions of the founders came true. Congress didn’t become the place where presidents were decided upon. Nore were there panels of wise men assembled in each state every four years, thoughtfully weighing the strengths of the candidates and using their personal judgement to choose the ideal chief executive. What emerged instead was the rise of party politics and party loyalty, with electors committed to the candidates of their respective parties. What’s more, states passed laws to award all the electoral votes in their states to the winner of the popular vote. It was an easy way for states to ensure more electoral votes for their preferred candidates, and this system emerged for all but a handful of states by 1836. Today, only Nebraska and Maine have a different system, which allocates some of their electoral votes by Congressional district, and they haven’t always done things this way. Maine started in the 1970’s and Nebraska in the 1990’s.

In looking at the US Constitution, it is important to note that it makes no mention of political parties. Unlike most modern constitutions of democratic countries, it doesn’t take parties into consideration at all. In fact, since the adoption of the Constitution predated the rise of modern political parties, it was specifically designed to avoid the problem of “factions,” which the founders feared, and instead establish institutional arrangements that would counter such factionalism. “We are attempting, by this constitution, to abolish factions,” said Alexander Hamilton. He and other founders disdained parties, having seen them as expressions and drivers of violence again and again in Europe. They thought their Constitution could foster greater national unity and cooperation, not continual factional denunciations and political attacks, which was the way they saw British politics conducted. Thomas Jefferson summed up the view when he said that, “If I could not go to heaven but with a party, I would not go there at all.”

It didn’t matter. George Washington was elected unanimously by the electoral college, but after that, political divisions in the United States came to be represented through competing political parties. And it was clear from the beginning of the republic that the nature of political activity would be dominated by parties. Alexander Hamilton’s Federalists and Thomas Jefferson’s Democratic-Republicans (shortened later to Democrats) were continually at odds, and the political vitriol was intense.¹ Their successors further cemented the role of political parties in American politics, and this included their central role in presidential campaigns and the electoral college.

How the Electoral College Alters Presidential Elections

There are considerable impacts that derive from using the electoral college system instead of a popular vote to elect the President of the United States. The first is that it’s possible for the popular vote winner to lose the election. In fact, it has already happened five times, and two of these instances have occurred in recent memory.

The United States also came very close to electing a president who didn’t win the national popular vote in 2004, 2020, and 2024. These were all instances of a “near miss.” Had John Kerry won in Ohio, a state he lost by 118,601 votes, he would have become president in 2004 after losing the popular vote by more than 3 million votes to George W. Bush. In 2020, the margin of victory for Joe Biden over Donald Trump was razor thin in Georgia, Arizona, Pennsylvania, Michigan, and Wisconsin. A switch of just under 22,000 votes from Biden to Trump in three states would have put Trump in the White House after he lost the popular vote by 7 million votes. And in 2024 a switch of 114,000 votes in Pennsylvania, Michigan, and Wisconsin would have given Kamala Harris the presidency even though she lost by 2.2 million votes nationwide.

There is another problem produced by the electoral college. While it has “misfired” five times, and also produced occasional near misses, it is consistent in doing harm to American democracy every four years without fail. This is because presidential candidates don’t pay any attention to most of the voters in the United States. They only focus on those in “swing states” or “battleground states,” places in which the electorate is closely divided. There are only a handful of states in this circumstance every four years, and the states on this list don’t change all that often.

Since Barack Obama was elected, Ohio and Florida have moved from being battlegrounds to being consistently Republican. At the same time, Pennsylvania, Michigan and Wisconsin are now swing states, after several elections in which they were reliably Democratic. Also, Arizona, Georgia and North Carolina are now considered battlegrounds after years of being Republican strongholds. Still, in the last five presidential elections, 40 states have voted for the same party consistently. They have comfortable majorities that reliably favor one party or the other.

This means that most states, and therefore most voters, are largely left out of presidential elections. They get scant attention. This map shows that in 2024, almost every one of the 262 presidential campaign events were held in only seven states.

Source: National Popular Vote

Many voters feel like their votes in presidential elections are not that important. And they’re right. Imagine how different things would be if candidates had to compete for votes everywhere, and every vote carried the same importance and the same weight. Both Democrats and Republicans would go to Boise and Louisville and Houston to compete for votes in red states, and to Chicago and Portland and Baltimore to get voters to the polls in blue states. How many Democrats don’t even bother to vote in Texas? What about Republicans in New York?

We might not even think of states as blue and red if the electoral college didn’t drive elections. After all, such characterizations have emerged out of two things. One is the visual representation of presidential election results when news teams report the outcomes on election night. And second is the need to focus on states – as opposed to individual voters – as the most important element in a presidential election. These are both outcomes of the electoral college. (It was only the election in 2000 that cemented the idea that Republicans were red and Democrats were blue. The major networks all ended up using the same color coding, and since the vote count and lawsuits went on for weeks, the maps were used repeatedly. Now that color coding is part of the American political lexicon.)

There is another consideration. Because every state gets two Senators no matter their population, and therefore two electoral votes, less populous states actually get disproportionate weight compared to the actual number of votes cast in the state. The result for the least and most populous states in the country is that Wyoming has one elector per 190,000 people, while California gets one for every 700,000 people. Added to this consideration is that there are many small states that tend to regularly vote Republican. To that end, this is thought to provide some extra weight, or bias, toward Republicans in the makeup of the electoral college itself due to the current partisan divide in the country. However, there is disagreement about how big or impactful this circumstance really is. Besides, it’s not likely that voters in Wyoming or other small states that get no campaign stops from presidential candidates feel all that empowered and consequential when it comes to deciding presidential elections.

The National Popular Vote Movement

In consideration of all these downsides to the use of the electoral college, a new organization, the National Popular Vote Interstate Compact (NPV), was created in 2011. This reform movement emerged after the 2000 election, when the electoral college and the popular vote differed for the first time since 1888. The movement got even more momentum after the same thing happened in 2016. This problem seemed less like an bug and more like a feature of American presidential elections. This is why the effort to change presidential elections continues to generate activity, and why Virginia passed its new law.

The NPV initiative is designed to change the way the US elects presidents, but without having to amend the Constitution. Amendments are rare. They require approval by a two-thirds majority in both the Senate and House, and ratification by 75 percent of all states. There have been only 27 amendments in total, and the first ten, the Bill of Rights, were passed by the first Congress in 1789. It’s hard to get an amendment enacted – more that 11,000 have been proposed – and the job is all the more difficult in the current political climate that is so polarized along partisan lines. This is why NPV isn’t trying to amend the Constitution. It’s trying to work within the Constitution.

Virginia is the latest state to move NPV from the realm of the theoretical to reality. NPV legislation has been enacted into law by 18 states and Washington DC, which together have 222 electoral votes.

Source: National Popular Vote

NPV has also passed in one legislative chamber in six more states with 61 electoral votes: Arizona, Arkansas, Michigan, North Carolina, Nevada, and Oklahoma. It is slowly getting closer to the point where member states could have the power to cast all of the electoral votes necessary to elect the president. It’s a stretch, but it’s possible.

As always, there’s another issue at hand. The Constitution says that interstate compacts require Congressional approval, and it is unclear if Congress would approve this. However, the Supreme Court has ruled that only compacts which increase the power of states at the expense of the federal government require approval. What’s more, numerous interstate compacts have been established over the years without Congressional approval. Since the Constitution already allows states to choose how to allocate electors, proponents of NPV say there is really no legal issue. States are not encroaching on federal authority. Opponents argue that NPV would alter the national structure of presidential elections, so it would require Congress to give its approval. If NPV ever does get enough states to control presidential elections, a great deal of Congressional debate and a lawsuit going to the Supreme Court can be expected.

The Politics of Electoral College Reform

There have been many attempts to reform or abolish the electoral college since the passage of the 12^th Amendment. Over 700 amendments have been proposed over the years to do so, far more than any other issue has generated. One proposal that got significant traction was the 1950 Lodge-Gossett plan, which would award electoral votes in each state in direct proportion to the popular vote. It passed the Senate, but the measure failed in the House. Another was a 1969 amendment that passed the House but failed in the Senate. It would have abolished the electoral college in favor of a direct popular election. If no candidate won at least 40 percent of the vote, a runoff election would be held.

Currently it is the Democrats who tend to be in favor of reform, and they are the major drivers of the NPV movement. Two of their candidates – in 2000 and 2016 – won the popular vote but lost the election. Their view is that the electoral college favors the GOP by giving disproportional weight to small states. Since Americans have increasingly sorted themselves nationwide by party affiliation (how many staunch conservatives want to move to California to start a career or a family, and how many progressives have their sights on Alabama?) it is believed that the growing political polarization offers a distinctly Republican advantage in the electoral college. By contrast, the GOP has come out on top twice when its candidates lost the popular vote. To that end, whether or not the Democrats are correct in their view that the system favors the Republicans, there is little impetus for the GOP to support electoral college changes at this time. If the Democrats support reform, then it seems obvious to Republicans that they should be against it.

It is within these political dynamics and considerations that the NPV movement has evolved. It is being driven by Democrats and by states where Democrats control the legislature and Governor’s office. They see that there is no way in the current political climate to amend the Constitution, so the NPV compact is the pathway they are pursuing.

Reform, however, comes with risks and the possibility of instability and new surprises. The partisan makeup of a state can change, prompting a state to leave the compact and change its allocation of electoral votes away from a national popular vote. In addition, it is argued that national popular vote might encourage more independent candidates to run, creating a situation in which a person wins the presidency with only a plurality of the vote, maybe as little as 30 percent. This could cause a president’s legitimacy to be questioned and cause further political strife throughout the country.

Ten years after the second “misfire” of the electoral college occurred in five elections, fifteen years after the creation of NPV, and more than 200 years after the Constitutional Convention, efforts to change the election of American presidents continue.

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¹ The 1796 presidential election between John Adams and Thomas Jefferson introduced partisan campaigning and personal attacks into American presidential elections. Alexander Hamilton wrote under a pseudonym and accused Jefferson of having an extra-marital affair with one of his slaves, called him a coward in battle during the American Revolution, and said that Democratic-Republicans were “cut-throats who walk in rags and sleep amid filth and vermin.” Supporters of Jefferson said that Adams was hungry for political power, a “godless, overweight shill” for the British Empire, and that he wanted to turn the presidency into a hereditary dictatorship.