US elections: Why the electoral college still has powers to choose President

The electoral college in American presidential elections has been a matter of debate since the early days of the federal republic. Embedded within the institution, is the idea that state legislatures have the power to decide on who gets to elect the president of America. The system of the electoral college is designed to elect a temporary body of electors from each state, in numbers proportionate to the total number of representatives in the Congress, who in turn gets to vote for the president. Interestingly, how this body of electors are chosen from each state is also left on the individual states to decide.

“It’s a heritage of our constitution. Our constitution left matters of voting to the state. Our elections are run by the state, and so is the right to vote determined by the states,” says Alex Keyssar, historian and professor of History and Social Policy at Harvard University, in a conversation with indianexpress.com. He explains that the decentralised system of voting has been frequently discussed and debated but there has been resistance from the states to alter it. “The most recent substantial discussion occurred after the 2000 election when Bush won by a tiny margin in Florida, where not only was voting technology different from the rest of the country, but it also differed from one county to the other,” he says.

Electoral votes allocated to each state. A total of 538 electoral votes exist and a candidate needs to win 270 to be declared winner. (Wikimedia Commons)

A legacy of the founding fathers

At the onset, the United States was formed by 13 British colonies that fought a revolutionary war against the British empire in the late 18th century. Consequently, the Americans began expanding westwards, bringing more states under the republic’s umbrella. Political scientist Alfred Stepan had famously compared the formation of the USA and India, as he classified the former as a ‘coming together’ federation, as opposed to the latter being a ‘holding together’ federation.

In other words, the coming together of the United States is largely dependent on the power that the constitution of the republic gives to the independent states. As the chief justice of the United States had famously declared in 1869, “the constitution, in all its provisions, looks to an indestructible union composed of indestructible states.”

As the Constitutional convention started out in May 1787 at Philadelphia, the delegates were quick to settle on the powers to be invested in the chief executive and by mid-August, had decided that he would hold the title ‘president’. The challenge, however, was to determine the way in which the president would be elected. Keyssar in his recent book, ‘Why do we still have the electoral college?’ notes that one of the key difficulties being faced by the delegates was the fact that there was no historical precedent in the selection of a republican chief executive. “When the convention began, the most readily available option (the ‘default’ in twenty-first century argot) was selection by the legislature,” he writes. Yet the delegates at the convention kept going back and forth on their decision over the matter.

During the early debates, there was significant support for choosing the president through a popular vote. James Wilson was strongly in favour of the same, on the grounds that a popular vote would ensure that the branches of the government are independent of each other and also of the states. James Madison too was of the opinion that “the election must be made either by some existing authority under the national or state constitutions- or by some special authority derived from the people- or by the people themselves.”

The argument against a popular vote, on the other hand, was based upon the burning issue of slavery. Madison, for instance, argued that given the fact that voting rights were more diffusive in the northern states than in the south on account of a larger slave population there, the latter would have lesser influence in the choice of a president. “What limited the support for a single national election, thus was not antagonism to popular participation but an array of other apprehensions: that such an election would be too conducive to a national rather than a federal government; that it would be too impractical, and that it could threaten the balance of influence between free and slave, as well as small and large states,” writes Keyssar.

During the early debates at the constitutional convention, there was significant support for choosing the president through a popular vote. (Wikimedia Commons)

The debate was settled only towards the end of the convention, by late August when a committee chaired by David Brearly of New Jersey proposed the idea of the ‘electoral college’ which entitled the state to a definite number of electors and gave it the power to decide how they should be chosen.

Accordingly, Article II, section I of the US constitution states:

“Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.”

Challenges caused by the electoral college

The problems with the electoral college became evident from the time the constitution was written. “As early as the 1790s, political leaders began pointing to the flaws in their new constitution’s blueprint for selecting presidents, and by the 1820s even James Madison- the principal ‘father’ of the Constitution- was voicing support for significant reform,” writes Keyssar.

But the problem with the electoral college lies not much in its intent as in its functioning. Specialist in American national government, Thomas H. Neale in his research paper, ‘The electoral college: How it works in contemporary presidential elections,’ notes: “notwithstanding the founders’ efforts, the electoral college system almost never functioned as they intended, but, as with so many constitutional provisions, the document prescribed only the system’s basic elements, leaving ample room for development. As the republic evolved, so did the electoral college system.”

Also read: Why US Election 2020 matters to India

The foremost challenge caused by the fact that the constitution and the federal law is silent on nomination procedures for party candidates. So the process of electing an elector is left on state preferences. Thereby, voting technologies, voting rights and also the weightage given to popular votes have varied across states.

“In the early days of the republic, the legislatures themselves chose presidential electors in more than half the states, which meant that voters in those states had no direct involvement in the election,” writes Neale. However, this practise changed over time as democratic sentiment grew in the 19th century and since 1864 voters have chosen electors in all the states. However, given the constitutional provision for state legislatures to decide on electors, the ability of the states to exercise this power does exist, as was illustrated in the Bush vs Gore election of 2000. The state legislature had suggested stepping in if the local authorities were unable to decide on who won the 25 electoral votes.

Supporters of Bush and Al Gore during the 2000 presidential elections. (Wikimedia Commons)

Yet another problematic feature of the system is that in every other state apart from Maine and Nebraska, the practice of ‘winner takes it all’ exists, leaving many voters with the feeling that their votes don’t count. This is particularly true for states where one political party is dominant.

Further, it also affects the way political campaigning is shaped. Jesse Wegman of the New York Times explains this in a recent editorial: “Today, 48 states use winner-take-all. As a result, most are considered “safe,” that is, comfortably in hand for one party or the other. No amount of campaigning will change that. The only states that matter to either party are the “battleground” states — especially bigger ones like Florida and Pennsylvania, where a swing of a few thousand or even a few hundred votes can shift the entire pot of electors from one candidate to the other.”

Consequently, political campaigns focus on only those issues which are of importance in these states like fracking in Pennsylvania and prescription drug plans in Florida. Problems such as climate change in California and transportation problems in New York are conveniently ignored.

Yet another source of discontent with the electoral college is the issue of faithless electors, or those who vote for a different candidate other than the one they were pledged. This happened as recently as the election of 2016 when attempted to cast ballots for candidates other than those to whom they were pledged and seven succeeded.

There exists a sufficiently strong public opinion in America to alter the system of presidential elections. “In the late 1960s and 1970s, 65 to 80 percent of voters favoured amending the Constitution to replace the Electoral College with a national popular vote; during the first decade of the twenty-first century, the figure hovered just above 60 percent, including majorities of both Democrats and Republicans,” writes Keyssar. He notes that opinion polls have also shown that Americans are confused about what the Electoral college is and how it works.

However, after the 2016 elections, the Gallup poll reported a rise in support for the electoral college. “In the aftermath of this year’s election, the percentage of Republicans wanting to replace the Electoral College with the popular vote has fallen significantly,” explained the analytics company.

Also read: Unless Joe Biden wins big, America stares at a constitutional crisis

The challenges posed by the electoral college is expected to reach a new height this year with a pandemic raging and the number of mailed-in ballots swelling to historic heights. “The jumble of election rules and deadlines by state, including in presidential battlegrounds like Pennsylvania and Wisconsin, all but ensure that the victor in a close race won’t be known on Nov. 3,” writes political reporter Shane Goldmacher, in an article in the New York Times, as he cautions the public and politicians to recalibrate expectations on when the 2020 elections might come to a definite conclusion.

Further reading:

Why do we still have the electoral college? by Alexander Keyssar

The electoral college: How it works in contemporary presidential elections by Thomas H. Neale

Let the people pick the president: The case for abolishing the electoral college by Jesse Wegman