Part One of the TNL Guidebook on US Electoral College covered the basics of the system and how it functions. Part Two will answer some remaining questions about potential results, changes, arguments for and against the system. Readers are strongly recommended to read the first-part before this piece.
What happens if nobody gets to 270?
In the January after the election, the House of Representatives elected in November chooses the President and the Senate the Vice President. In the Senate, it is one Senator, one vote. Therefore, 51 to win. If it is a tie, the sitting Vice President (who in January 2021 will be Mike Pence) casts the deciding vote.
In the House, it is more complicated as each state gets one vote. Thus, all 53 California Representatives vote and the candidate with the most votes receives California’s 1 vote, and Wyoming’s sole representative will cast their state’s one vote. Washington, DC would have no say, and a candidate needs 26 votes to win. If it is 25-25, they keep voting until a winner is found, and if this goes on beyond January 20th, (inauguration day), an Acting President is sworn in.
The House and Senate can elect a President and Vice President from different parties. As Republicans may control a majority of members in at least 26 states in the House and if the Democrats win the Senate, a 2020 electoral college tie could lead to President Donald Trump and Vice President Kamala Harris.
Why Was the Electoral College Designed So?
The electoral college was never designed as an electoral system. It was specifically designed by the Founding Fathers in the late 1780s to avoid a popular election for President, but ironically there are now 51 popular votes for the President.
The system was a series of compromises: between a directly elected President and no President at all, between states with larger and smaller populations and most controversially between states where slavery was permitted and states where it was not.
The system exists as it is today is because the constitution allows states to decide how their electors are appointed. For much of the 18th and 19th century, many states decided that the state legislature should choose its electors. However, over time, they decided to hold an election in the state to determine who gets its electoral votes.
This means the role of electors is radically different from what the Founders imagined. They imagined free thinkers, free from popular opinion. Yet today, electors are expected, and in some states, bound by law, to vote with popular sentiment in their state.
Arguments For and Against
Putting aside the caveat that the electoral college does not function as intended and assuming faithless electors do not distort the process, the arguments for and against the system as it operates today are several but here are two:
- It ensures smaller states count, whereas a national popular vote could lead to just a few large states like Texas, California and New York dominating. Therefore, the winner currently has broader geographical support.
- It keeps elections in the hands of the states, free from federal interference.
- Only a small number of swing states count, and states with large populations like Texas (in most years), California and New York are ignored.
- The electoral college result is unrepresentative even when the popular vote winner wins the election. Besides, as happened in 2000 and 2016, the popular vote winner can lose the election.
Can the system be changed?
There have been hundreds of attempts to abolish or reform the electoral college. The attempt closest to success was in 1969 and 1970 when the Electoral College Abolition Amendment passed the House of Representatives by 339 to 70, but was filibustered in the Senate. It proposed a national two-round system for Presidential elections (as used in France) with a second-round if no candidate received an absolute majority (50%+1) of votes in the first.
Abolishing the electoral college would require a constitutional amendment and for 3/4ths of all states and (if not proposed through a convention) 2/3rds of both Houses of Congress to agree. Thus, the most practical way to change it is through reform.
This can be done if states change how they allocate their electoral votes. The National Popular Vote Interstate Compact is an agreement signed by several states that would mean if enough of them sign it to get to at least 270 electoral votes, that all those states in the compact would all give their electoral votes to the nationwide popular vote winner, which would guarantee that the candidate with the most votes would win.
So far 15 states plus Washington DC have ratified the compact, representing 196 electoral votes. In other states representing 64 electoral votes, the process is pending, and states representing 278 electoral votes have not started the process or ratified this.
Would change be desirable?
On the surface, a system where the person with the most votes across the country wins is fairer than the existing system where the person that comes 2nd can win. However, some worry that were the electoral college reformed or abolished it could unravel the very structure of the United States. This is because, at the moment, elections are conducted by the state. With a popular vote system, there would perhaps be need of a federal body to determine the national vote; in other words, federal not state-run elections. It would require both uniform franchise and ballot access rules whereas at the moment the franchise varies by state as does who can be on the ballot paper.