In Part 1, we explored what the Electoral College is, how it works and why it was created. With that in mind, it is important to understand how it has changed over time and why some question if it still has a place in today’s presidential elections.
The Electoral College has changed dramatically from the founder’s conception to modern practice. Originally, the Constitution made no distinction between voting for president and vice president. Each elector would cast two votes and the person with the most votes became president. That meant that the runner up became vice president. This was an issue during the country’s third presidential election. In 1796, John Adams was elected president and Thomas Jefferson vice president, a failing combination because of their differing political philosophies. It would be like if Hillary Clinton was elected vice president under Donald Trump.
As political parties began to emerge, electors strategized ways to avoid this for the election of 1800. Jefferson’s supporters were supposed to cast one vote for him and all but one of his supporters was set to cast their second vote for Aaron Burr. However, a mistake occurred resulting in a tie, throwing the election to the House of Representatives.
This spurred the Twelfth amendment, which separated the voting for the two offices. This is why we have the modern presidential/vice presidential ticket. The amendment also says that if no presidential candidate gets the majority of electoral votes, the House of Representatives will decide the election, with each state delegation, not member, casting a vote. The Senate was chosen to select the vice president by a simple majority under the same circumstances. In a modern context, this means that if no ticket gets a majority, or a tie occurs, the House could pick a candidate from one party while the Senate picks a candidate from the other party.
The House has decided who will serve as president on two occasions, in 1800 and 1824. During the election of 1836, the Senate had to pick a vice president. In modern times, electors almost always vote for a ticket so the chance of a tie for both offices is much more likely than a lack of majority for one office but not the other.
On five occasions, the candidate that received the most votes did not win the electoral vote most recently in 2000 and 2016. This is the root of one of the first major criticism of the Electoral College: it is undemocratic. In every other election in the United States, the person who gets a plurality of votes (or in some cases, a majority of votes) wins. Every person gets one vote and that is that. Why should the presidential election be an exception?
Along these lines, some question why some voters have more power than others. This could be in pure representation, meaning that in lower population states, each elector represents fewer voters, meaning that each voter has “more representation.” This argument is also used in discussing “swing states.” Recall how the founders developed the Electoral College to ensure that candidates had to campaign outside of the major cities. This has somewhat backfired as one can predict how most states will vote. This leaves only a handful of states up for grabs, giving these states, as well as states with more electoral votes, more power and attention.
There is also the issue of faithless electors. In 38 states and the District of Columbia, electors are legally bound to vote for the candidate that wins their state’s popular vote. However, in the remaining 12 states, they are free to go off script. This has not caused problems in the past but has the potential for issues in the future. In 2016, for example, we saw the first instance of faithless electors in many years when four of Washington’s electors, two of Texas’ electors and one Hawaii elector voted for alternative candidates. Because the Electoral College votes weeks after the general election, they can use their power to potentially take away a winning candidate’s majority, especially in a close election.
Any changes to the system would require a constitutional amendment so while the debate continues, revisions will be slow and are unlikely. Yet some states are finding ways around this. Several states have agreed to pledge their votes to the winner of the nationwide popular vote. However, this will only take effect when enough states have signed on for the winning candidate to receive a majority of electors.