Taking stock of the electoral college

John Brancato: In Memorium

June 8, 2007

John Brancato’s many local friends are deeply saddened by his passing last month. John was a great friend and contributor to this and other local newspapers. The following column was his most recent published work, but John’s past writing covered topics as diverse as legal history and artichoke cooking tips. All of us who enjoyed his wit and wonderful historical insight will miss him greatly.

Colonel John R. Brancato retired from the United States Air Force on March 1 1998, after 30 years of active-duty service as a judge advocate (military lawyer). At the time of his retirement, he was Staff Judge Advocate at Headquarters, Air Force Special Operations Command (AFSOC), at Hurlburt Field, Florida. He passed away on May 28, after an extended illness.

Taking Stock (again) of the Electoral College

By John Brancato

Because we see ourselves as a democratic nation, most of us would answer, "the people," if asked who elects the U. S. president. And that answer would be wrong.

The people elect the president only indirectly, and sometimes unintentionally. A better answer is "the states," but even that isn't totally accurate. The correct answer is "the electors of each state, who make up the Electoral College."

While the constitution requires direct voting for president by "electors," each presidential candidate who becomes the nominee of a recognized political party has his own slate of electors. The issue in a popular election, therefore, is whose electors will be certified to represent the state at the Electoral College. The people who go to the polls to vote are, in effect, voting for electors, not nominees.

But the names of the electors do not appear on the ballot in most states. This is the case in Florida, for example. When a Florida citizen votes for Congressman, he or she votes for the individual nominee of choice. But when a Florida citizen votes for the presidential nominee of choice, technically, as a matter of Florida law, he or she is not voting for the nominee, but for the electors pledged to that nominee, who have been named by that nominee's party.

In this regard, it is important to keep in mind that the electors are not mere middlemen who occupy a functionary position between the voting public and the presidential nominees. They do not perform the mathematical role of transferring their own votes to the nominees according to will of the people who went to the polls. In fact, they don't ever perform such a role.

There are three reasons for this.

First, each elector across the nation does not necessarily represent the same number of popular voters.

Second, the "winner-take-all" system extinguishes just about half of the popular votes in each state.

Third, there is the matter of the "faithless electors."

Unequal Representation

Each state gets to certify a number of electors equal to the number of representatives and senators the state has in Congress. Thus, Florida has 25 representatives and 2 senators, so she can certify 27 electors. The smallest state in population, Wyoming, has one representative and two senators, so Wyoming can certify three electors. The constitution allows the District of Columbia the same number of electors as the smallest state, so DC, too, can certify three.

Because there are always 435 representatives in the U. S. House of Representatives and always 100 senators in the U. S. Senate, this means there are always 538 electors in each presidential election. To become president, a nominee needs to win 270 electors, which is a simple majority.

Giving each state two electors without regard to population reflects the source of power of the U. S. Government--it is not only population-based, but also state-based. Indeed, Madison said as much in Federalist Paper No. 39.

The framers exercised great care not to take so much power away from the states that the states with smaller populations would become irrelevant in Congress or in a presidential election. After all, the framers were establishing a national government not only of the people, but also of a federation of states--in other words, a federal government.

Thus, each state has not only two senators, but also two presidential electors, regardless of population.

As a result, the Electoral College gives the smaller states more representational "clout" per elector than the larger states. This is a law of mathematics:

If the house districts are reapportioned every 10 years with the census, and therefore each member of the U. S. House of Representatives always represents approximately the same number of people, and:

If Wyoming's two senators represent their state (consisting of a half million people), while California's two senators represent their state (consisting of 34 million people).

The "Winner-Take-All" System

Moreover, each state is free to decide whether to divide up her electors among the nominees, or to use the "winner-take-all" system.

Almost all of the states, 48 to be exact, use the "winner-take-all" system. This means that the nominee who wins the popular vote in the state gets to use his electors to fill all of that state's elector positions. A couple states, Maine and Nebraska, don't do it this way; they apportion their electors--divide then up among the nominees according to the proportion of the popular vote received by each nominee, or by another method.

The "winner-take-all system" resulted in George W. Bush's taking all of Florida's electors in 2000, while Al Gore, who received approximately the same number of votes in Florida's popular election (a few hundred fewer than Bush) got none of Florida's electors. Similarly, Bush lost to Gore in New Mexico, Wisconsin, Iowa, and Oregon (by less than 1 percent of the popular vote in each state), and therefore took none of the electors from those states.

It has been said that this system disenfranchises a substantial number of popular voters (up to one fewer than a half) in every presidential election.

For example, I know some "Yellow-Dog" Democrats who live in Texas and Utah. They would never fail to vote for the Democratic nominee. But, because those two states have voted overwhelmingly Republican in recent presidential elections, thus giving all of Texas' and Utah's electors to the Republican nominee, these people have said they feel as if voting for president, for them, is a useless and meaningless act.

In the same vein, I wouldn't want to be a Republican voting for president in Massachusetts!

Faithless Electors

Another important reality is that electors aren't just numbers; they are people. Each party names its own electors, to go with its nominee. In Florida, for example, if the Republican nominee wins the popular election, the electors selected by the Republican Party of Florida are the ones who are certified in Tallahassee to represent Florida at the Electoral College.

Technically, the constitution doesn't use the term, "Electoral College." The term is merely an informal name that has come to be used to describe, collectively, all the people who have been certified as presidential electors in all the states. In fact, the Electoral College never meets as a group. They do meet by state after they have been certified, and at that time fill out their ballots.

This is not all milk and honey. There is nothing in the constitution, and no enforceable law in any state, guaranteeing that an elector will vote for the nominee to whom he or she is pledged. Theoretically, a Republican elector, once certified, could vote for the Democratic nominee at the Electoral College, or for anybody else, and vice versa.
This is the phenomenon of the "faithless elector." Some 24 states have laws that punish faithless electors, after-the-fact. The supreme court has upheld these laws, but still won't allow a state to invalidate the vote of a faithless elector.

Legal scholars widely believe that Congress could invalidate the vote of a "faithless elector," should Congress ever take up another election contest as it did in presidential election of 1876.

These gadflys, dissidents, and "publicity hounds" surface in almost every presidential election, some 158 faithless presidential electors throughout U. S. history. So far, none of them has made a difference in any election, and this probably is the reason Congress hasn't acted.

Appointing the Electors, or Voting for Them?

The final matter of constitutional law. The U. S. did not always elect presidential electors in popular elections. The constitution provides no more than that each state legislature decides on its own how the presidential electors shall be chosen in the respective states. In fact, until about 1836, the state legislatures themselves chose the presidential electors.
Thus, George Washington and his first few successors never ran for election by the people. There were no presidential elections in those days. These presidents were elected by electors appointed by the state legislatures. Power to the states! The people at large were not involved.

The constitution still says the same thing--each state legislature decides the method for selecting the state's electors.

Recall that, in 2000, the leaders of Florida's Republican-dominated legislature, upset with how Florida's activist supreme court was attempting to change Florida's election statutes by judicial fiat, threatened to convene the legislature to throw out Florida's popular election returns, and to let the legislature then decide on its own whether Bush's electors or Gore's would represent Florida at the Electoral College.

Here's something to think about: Had the legislature decided by its normal voting process to do such an extraordinary thing, many constitution scholars believe the action would have withstood judicial scrutiny in the federal courts. There's nothing in the constitution that mandates the popular election of the presidential electors, let alone the popular election of the president. Quite the contrary, the constitution says only that the state legislatures reign supreme in this area.

Still, by 1820, in the interest of more democracy, some of the state legislatures began using popular elections to elect the electors, and thus effectively to decide the presidential election within their states. By 1836, all of the states were using popular elections, except South Carolina. South Carolina joined the fold in 1868. Today, of course, every state uses popular elections, and we take this for granted.

Losing the Popular Vote and Winning the Election

Because the smaller states have more electors per unit of population than the larger states, and because of the "winner-take-all" system, it is entirely possible that a presidential nominee can lose the popular vote nationwide, and still win the election. (This is why nationwide polls don't mean all that much in presidential elections.)

It has happened three times in U. S. history after South Carolina finally moved to popular elections in 1868. One was Bush - Gore in 2000, another was Benjamin Harrison - Grover Cleveland in 1888 (Harrison won the presidency), and the third was Rutherford Hayes - Samuel Tilden in 1876, when Congress got involved and handed the election to Hayes.

Lest the smaller states become too cocky, it is well to remember that mathematics work in mysterious ways. The nation's most populous 11 states--CA, TX, NY, FL, IL, PA, OH, MI, GA, NJ, NC--control 271 electoral votes. It therefore is possible to win the presidency by winning only those states and losing the other 39. The first nine of those states are home to over half the nation's population.

But, if a nominee won those 11 states by one popular vote in each state, and won no popular votes at all in any of the other 39 states, that nominee then would have won the presidency (under the "winner-take-all" system) with less than 30 percent of the popular vote.