ACLU Voting Rights Project
November 17, 2016
The Existing Electoral College
Article II, Section 1 of the U.S. Constitution provides that the President and Vice President shall be chosen by “Electors, equal to the whole Number of Senators and Representatives to which the States may be entitled in the Congress.” The Electors, known as the Electoral College, are appointed “in such Manner as the Legislature thereof may direct,” and each could vote by ballot for two persons. The person receiving “the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed.” However, if more than one person receives such a majority, and has an equal number of votes, then the House of Representatives would choose the President. If no person has a majority, the House of Representatives would choose the President from among the top five contenders. In choosing the President, each state would have one vote. The Vice Presidency would then go to the remaining person with the greatest number of votes, but in the event of a tie the Senate would choose the Vice President.
In the presidential election of 1800, Thomas Jefferson and Aaron Burr received an equal number of Electoral College votes (73), as well as a majority (52.9%) of the votes of the number of electors appointed. Jefferson was eventually elected President by the House of Representatives by a vote of 10 to 4, but only on the 36th ballot. In an effort to prevent such ties in the future, the Twelfth Amendment was adopted in 1804 requiring that each Elector cast one vote for President and a separate vote for Vice President. The person “having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed.” In the event no person receives such a majority, the House of Representatives chooses the President from among the top three vote getters, with each state casting only one vote and a majority of votes being required to elect. The person receiving “the greatest number of votes as Vice-President, shall be Vice-President, if such number be a majority of the whole number of electors.” If no person receives a majority, the Senate selects the Vice President from among the top two vote getters, with a majority of votes being required to elect.
The National Popular Vote Compact
The National Popular Vote Compact provides that state election officials in all states participating in the plan would award their Electoral College votes to the presidential candidate who receives the largest number of popular votes in all 50 states and the District of Columbia. National Popular Vote is an interstate compact that would not go into effect until enacted by states collectively possessing a majority of the electoral vote – 270 of the 538 electoral votes. As of 2016, eleven jurisdictions have passed a National Popular Vote Bill – the District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont, California, Rhode Island, and New York. That amounts to 165 (61%) of the 270 electoral votes needed to activate the compact. The bill has passed a total of 34 legislative chambers in 23 states.
To prevent partisan manipulation, the compact contains a six-month blackout period from before the election through the January 20 inauguration during which a state would be prevented from withdrawing from the compact. The compact would also eliminate the possibility under the existing system of faithless presidential electors, i.e., an elector casting a ballot for a candidate other than the one chosen by the majority of the state’s voters. It would also eliminate the possibility that a presidential election would be decided by the House of Representatives and a vice presidential election would be decided by the Senate in the event no person received a majority of the Electoral College votes. It would further eliminate the possibility that a candidate who received the most popular votes, but did not receive a majority of the Electoral College vote, could lose the election, as happened in the Bush-Gore 2000 election. The 2000 election was the fourth time in American history when the winner of the popular vote failed to win the presidency – in 1824 (Adams-Jackson), 1876 (Hayes-Tilden), 1888 (Harrison-Cleveland), and 2000 (Bush-Gore). The 2016 presidential election was the fifth time in American history when the winner of the popular vote failed to win the presidency – Clinton-Trump. On only one occasion has a candidate who got a majority of the popular vote lost the presidential election – Tilden in 1876.
Today, all states choose their Electors by direct statewide election, except Maine and Nebraska, which select two Electors by a statewide popular vote and the remainder by the popular vote in each Congressional district. Under National Popular Vote, the Electors would be selected based on a nationwide popular vote.
Policies Underlying the Electoral College and the National Popular Vote
The electoral college from its basic conception was and is an undemocratic institution. It was brought into being based on a concept of elitism, under which the most distinguished citizens of each state would choose the President and Vice-President of the United States, unhampered by the wishes of those who selected the electors. The adoption of the National Popular Vote would ensure that the President of the United States would be chosen by direct popular election. National Popular Vote is based on the principle that each individual is entitled to the equal protection of the laws in having an elector’s vote equally weighed, and on its corollary enunciated in the one-person, one vote rule.
Is the National Popular Vote Compact Constitutional?
The constitutionality of the National Popular Vote compact is strongly supported by Article II of the Constitution which provides that: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” Thus, the states have inherent power to select their Electors as they see fit, provided the method of selection does not violate some other provision of the constitution, e.g., the Fourteenth or Fifteenth Amendments. See McPherson v. Blacker, 146 U.S. 1, 25 (1892) (Article II “cannot be held to operate as a limitation on” the power to appoint electors).
One could argue that it is unconstitutional to award the votes of a state to Candidate A when Candidate B got a majority of the state’s popular vote merely because Candidate A got a majority of the votes nationwide, and that to do so would amount to vote denial. But votes are similarly denied in all elections; those who vote for a losing candidate have their votes disregarded.
Critics of National Popular Vote have also argued that it is a compact which cannot be implemented absent congressional approval under Article I, Section 10, Clause 3 of the Constitution, which provides: “No State shall, without the Consent of Congress . . . Enter into any Agreement or Compact with another State, or with a foreign Power.” Proponents of National Popular Vote say Congress could always give its consent, but that the compact clause would not be applicable because it only applies to compacts that encroach on federal power. See Northeast Bancorp, Inc. v. Board of Governors of Federal Reserve System, 472 U.S. 159, 175-76 (1985) (“The application of the Compact Clause is limited to agreements that are ‘directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.'”). Given the authority granted states by Section II of the Constitution to select Electors “in such Manner as the Legislature thereof may direct,” it is difficult to see how National Popular Vote would run afoul of the Compact Clause.
Critics also argue that federal consent is required because it affects the interests of non-compacting states. However, the Supreme Court has apparently never rejected a compact based on a sister state interest theory.
Abolition of the Electoral College
California Senator Barbara Boxer, following the 2016 presidential election, has also proposed a constitutional amendment to abolish the electoral college. According to Senator Boxer: “This is the only office in the land where you can get more votes and still lose the presidency. The Electoral College is an outdated, undemocratic system that does not reflect our modern society, and it needs to change immediately.”
The official title of the bill is “Agreement Among the States to Elect the President by National Popular Vote.”
Albert Gore got 48.38% of the popular vote, but only 266 (49.44%) Electoral College Votes. George W. Bush got 47.87% of the popular vote, but 271 (50.37%) Electoral College votes and was elected. None of the third part candidates (Nader, Buchanan & Browne) got any Electoral College votes.
Andrew Jackson got 41.36% of the popular vote and 37.93% of the Electoral College vote, compared to John Quincy Adams who got 30.92% of the popular vote and 32.18% of the Electoral College vote. In the ensuing election in the House of Representatives, Adams received 13 (54.2%) votes, Jackson 7 (29.2%), and William Crawford 4 (16.7%).
Samuel Tilden got a majority (50.92%) of the popular vote, but only 184 Electoral College votes. He lost to Rutherford Hayes, who got 47.92% of the popular vote, but 185 (50.14%) of the Electoral College votes.
Grover Cleveland got 48.6% of the popular vote, but only 41.9% of the Electoral College vote. He lost to Benjamin Harrison who got 47.8% of the popular vote, but 58.1% of the Electoral College vote.
According to recent counts, Clinton got 47.8% of the popular vote, but only 232 (43.1%) of the Electoral College vote. She lost to Trump who got 47% of the popular vote but 306 (56.9%) of the Electoral College vote. While not all votes have been counted, Clinton is estimated to have received 1.2 million more votes than Trump. Contact: Laughlin McDonald, ACLU Voting Rights Project, firstname.lastname@example.org