Constitution Daily

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Close election causes another Electoral College debate

November 12, 2016 by Scott Bomboy


Another presidential election is in the books and a new President will be inaugurated in January. But to some voters, the constitutional process under the Electoral College remains in question.

Donald Trump as the Electoral College winner

On Saturday morning, more than three million people had signed an online petition for the members of the Electoral College to choose Hillary Clinton, and not Donald Trump, as the next President. The symbolic protest has no chance of succeeding; there are checks and balances even in the Electoral College system, and in the end, Congress needs to accept votes submitted by Electoral College members on January 6, 2017.

In the Electoral College tally so far, Republican candidate Trump has 290 votes to 228 votes for Clinton, with Michigan and New Hampshire’s votes still being tallied. Trump needed 270 votes to win the race, and the peaceful transition of power is underway, with no candidate contesting the results.

Clinton has about a 400,000 vote lead in the national popular vote. If that lead holds up, she will join Andrew Jackson, Samuel Tilden, Grover Cleveland and Al Gore as presidential candidates who won the popular vote but lost the election, in the modern-election era.

And that has restarted a debate that was fairly heated after the 2000 election, when George W. Bush defeated Gore after the Supreme Court allowed Florida state officials to stop recounts in that state’s very close election. In years after Bush-Gore there were failed attempts to amend the Constitution to eliminate the Electoral College and use the popular vote as the means of electing a President and Vice President.

Another theory is that the states could get around the logistics of a constitutional amendment by agreeing in a “compact” to award their electoral votes to the national winner of the popular vote. That movement has failed to gain traction, with just 10 states and the District of Columbia taking part in the compact so far.

In reality, the debate over the Electoral College is as old as the Constitution itself, and the College doesn’t seem to be changing in the near future. Back in 1787, the Founders discussed several options for selecting a President, including a system where all of Congress, the governors of the states, select members of Congress (drawn by lot) or a direct election would be used to pick a President and Vice President.

None of the ideas was favored at the Constitutional Convention, and a compromise brokered by James Madison and other Founders gave birth to the Electoral College.

After the convention, Alexander Hamilton gave it an enthusiastic endorsement, with a few reservations. “The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure,” he said. “I venture somewhat further, and hesitate not to affirm that if the manner of it be not perfect, it is at least excellent.”

The Electoral College system gave more weight to smaller states in the election process, as part of a broader compromise to get Southern pro-slavery states and smaller states to approve the Constitution. It also allowed states to have a key role in the presidential election process, by controlling how electors were chosen. The total numbers of electors would be the same number of people who served in Congress. However, the system was also tailored for a candidate like George Washington, and the original system only lasted for about eight years after Washington left office.

In 1804, the 12th Amendment modified the Electoral College system to make sure separate votes were cast for President and Vice President. Since then, the system has remained in place, although the 23rd Amendment added three electors for a non-state, the District of Columbia.

The first challenges to the Electoral College system came when Jackson, the highest vote-getter in 1824, lost in a House run-off election and his supporters cried about a “corrupt bargain” that denied him the White House. Objections picked up after the World War II era. In 1948, a Gallup poll showed that 53 percent of Americans wanted the Electoral College eliminated. By 2013, that number had grown to 63 percent in Gallup polling.

Between the late 1940s and 1979, the Congressional Research Service says Congress held 17 hearings about eliminating the Electoral College. On three occasions, the House or the Senate approved language for a constitutional amendment – but not in the same Congress. Although an estimated 700 attempts have been made to propose eliminating or changing the Electoral College by a constitutional amendment, not one has been approved by Congress and sent to the states for ratification.

These proposals included replacing the Electoral College with a direct election,  or changing how electoral votes are allocated based on congressional districts or in proportion to a state’s popular vote.

But as of 2016, the Electoral College remains in place. Its supporters point to the fact that the College has matched the popular vote in 53 of 57 elections held before 2016. It also remains consistent with the principle, embodied in Congress, that all states have some equal power despite their population size. A state like New Hampshire, with just four electoral votes, can make the difference in a close election.

Electoral College supporters believe that the lack of a constitutional amendment to change or eliminate the College reflects the will of the people. Back in 2000, the Cato Institute’s John Samples argued that in the wake of the Bush-Gore election, the system was still relevant.

“If the Founders had wished to create a pure democracy, they would have done so. Those who now wish to do away with the Electoral College are welcome to amend the Constitution, but if they succeed, they will be taking America further away from its roots as a constitutional republic,” he said.

Former Michigan governor Jennifer Granholm told the New York Times, in the wake of this election, the question should be revisited.

“If we really subscribe to the notion that ‘majority rules,’ then why do we deny the majority their chosen candidate?” she asked.

Scott Bomboy is the editor in chief of the National Constitution Center.

Election Resources on Constitution Daily

Explaining how recounts and contested presidential elections workWho are the Electors in the Electoral College?Five things you need to know about the Electoral College


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