Why most states subscribe to “winner-takes-all” (the Electors)
I remember the difficulty my father had in the early 1960s when he tried to explain to me how we elect the president using the U.S. Electoral College system. It made little sense to me—and the more I look at it the less sense it makes. If you need a little brush-up on how the Electoral College system works today (or doesn’t), check out the P.S. below. Why, for example, do 48 states and the District of Columbia pledge all their Electors to the presidential ticket that wins the most votes, a system referred to as “winner-takes-all?” That is definitely not what the framers had in mind, nor was it specified in Article II of the Constitution. Before we examine how we got here, let’s explore the recent frustrating. anti-democratic results of this antiquated system.
For the first half century of my life leading up to the Bush/Gore contest in 2000, the possibility of elevating a candidate who had lost the popular vote to the presidency via the Electoral College system seemed like a minor concern. Instead, the main issue was that, because of the winner-takes-all system of allocating Electors adopted by 48 of the states and the District of Columbia, presidential candidates pay scant attention to campaigning in any state other than “purple” states—the states in which they might arguably win and thereby take all the Electors for themselves. The result of this Electoral College-induced distortion is, for those who have a basic understanding of the red/blue status of their particular state, it can seem pretty meaningless to even bother to cast a ballot. This year, more than any other year, we need to shake off that feeling.
First, with Donald Trump and J.D. Vance making noises and taking actions to suggest preparation to challenge the integrity of the 2024 November election, the larger the overall vote margin for the winning candidate the less viable these challenges will appear. Second, if we manage to elect Harris and Walz there will be a much higher chance of their being able to move forward if they have a sympathetic majority in House and Senate. Finally, given the way the Republicans in Congress have voted as a block for at least the last twenty-five years, what Republican elected to serve in either chamber would have the temerity to vote against the Republican Party leadership if a nationwide abortion or contraceptive ban were proposed and made it to a vote?—regardless of moderation expressed on the campaign trail.
In our Washington Congressional District 5 working to thwart that grim possibility means supporting and voting for Carmela Conroy rather than Mr. Baumgartner. And while you’re voting don’t forget to vote for down ballot Democrats like Molly Marshall for District 5 Spokane County Commissioner—and against the Republican greed initiatives (more on those in later posts).
Now into the historical weeds
In the U.S. there have been only five presidents elected to office by our antiquated Electoral College system who were elected in spite of having lost the popular vote: John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), George W. Bush (2000) and Donald J. Trump (2016). Of those five, Trump has the dubious distinction of having lost the popular vote by the largest margin by far, 2,868,686 votes—five times the absolute vote margin by which the next closest contender, George W. Bush, lost the popular vote in 2000. For good measure, in 2020 Trump lost the popular vote to Biden by a margin of 7,059,526 votes (in 2020 the Electoral College and the popular vote yielded the same result, a Biden/Harris win).
The only Republican president elected with a majority of the popular vote in any election in the last thirty years was George W. Bush in 2004 (and he rode in on the wave of a war based on a lie—”Weapons of Mass Destruction”). Small wonder that Republicans are so enamored of the Electoral College system, a system so antiquated that the U.S. is the only remaining democracy that uses it to elect its executive president [a few still elect a largely figurehead president using an electoral college].
Like so much else in the history of our country the framers of our Constitution developed the indirect election of the president and vice president via Electors as a muddy compromise necessary to get both slave and free states to ratify the Constitution.
Crazier still, the exhausted framers based their Electors method of electing the president on a series of misconceptions [bold is mine]:
For starters, there were no political parties in 1787. The drafters of the Constitution assumed that electors would vote according to their individual discretion, not the dictates of a state or national party. Today, most electors are bound to vote for their party’s candidate.
And even more important, the Constitution says nothing about how the states should allot their electoral votes. The assumption was that each elector’s vote would be counted. But over time, all but two states (Maine and Nebraska) passed laws to give all of their electoral votes to the candidate who wins the state’s popular vote count. Any semblance of elector independence has been fully wiped out.
The Founders also assumed that most elections would ultimately be decided by neither the people nor the electors, but by the [nonpartisan] House of Representatives. According to the Constitution, if no single candidate wins a majority of the electoral votes, the decision goes to the House, where each state gets one vote.
So how did we go from the framer’s vision of electing wise Electors as another layer of representative democracy? Most writing on the history concerns the mess that the original Constitutional Elector system produced in the first few elections—a president of one stripe and a vice president in strong political opposition—a situation that might have sounded to some like a temptation to plot against the president. The 12th Amendment (second after the Bill of Rights) passed in 1804. It patched up the details of how the Electors cast votes for president and vice president.
For the first forty years after ratification most states experimented with different methods of choosing Electors. Some used the state legislature to choose Electors, others chose them with statewide or district elections, hybrid systems of selection, or other experiments. But here’s the crux laid out in an excellent article (click the underlined words to go there):
The shift to statewide winner-take-all was not done for idealistic reasons. Rather, it was the product of partisan pragmatism, as state leaders wanted to maximize support for their preferred candidate. Once some states made this calculation, others had to follow, to avoid hurting their side. James Madison’s 1823 letter to George Hay, described in my earlier post , explains that few of the constitutional framers anticipated electors being chosen based on winner-take-all rules.
From the linked post above:
Attempts to defend the Electoral College based on the fact that it was introduced by brilliant political thinkers such as Madison fail to appreciate the unique political context in which it was created and the fundamental differences between that time and ours.
Historian Heather Cox Richardson, in a recent “Politics Chat”, verbally stated that it was Thomas Jefferson that got the ball rolling on “winner-take-all” Electoral College voting when he realized the Electoral advantage of the method as applied to his Elector rich home state of Virginia. HCR credits Jefferson with starting the tread.
The Electoral College is a vestige of the original compromise with the slave states necessary to ratify the Constitution. The Founders argued at length over its details. It never functioned in the manner intended by those who pushed it forward. It ought to be scrapped by Constitutional Amendment and relegated to the dustbin of history where it belongs—a daunting task but a worthwhile one.
Keep to the high ground,
Jerry
P.S. Quick Brush-Up on how the Electoral College system works these days (click here for the source of most of this):
Each state is allotted a number of Electors, specified in Article II of the U.S. Constitution, a number equal to the number of U.S. Senators (two for each state) plus the number of that state’s U.S. Representatives. For example, Washington State has ten U.S. Congressional Districts (CD) each of which elects a U.S. Representative, therefore Washington State “gets” 2+10=12 Electors. Article II, Section 1 of the U.S. Constitution left it up to each state to decide on a method of choosing their Electors [the bold is mine]:
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.
There are 435 total voting members of the U.S. House of Representativesand 100 U.S. Senators for a total of 535. (The total number of Representatives was fixed at 435 by The Permanent Apportionment Act of 1929, instead of expanding with growth in population. The Act fundamentally changed the balance of power in electing the president through the Electoral College by limiting the increase in number of Electors [which, of course, depends on a state’s number of Representatives] allocated to the more populous states.) We arrived at the number “538” for the total number of Electors via the 23rd Amendment to the U.S. Constitution, passed in 1961. This Amendment awarded the voters of the District of Columbia 3 Electors, thus giving D.C. voters a say in the election of the president—even as they remain without voting representation in the House and Senate.
So, voila!, 435+100+3=538. Then 538/2=269, and therefore the magic number is 270 Electoral votes to “win” by a majority in the Electoral College. The Constitution (written before political parties were envisioned) specified that if no candidate got to a majority in the Electoral College then the House, voting as a state delegation with one vote per state, would decide.
In 48 states and D.C., with the exception of Nebraska and Maine, the candidate slate that wins the popular vote in the November general election is effectively electing a slate of Electors chosen by the major party of the winning presidential slate in that state. State laws vary slightly regarding the few “faithless” Electors (who cast their ballot for a different candidate than the one specified by their party). Nebraska and Maine each choose two Electors based on the statewide vote, and one Elector is chose by the voters of each Congressional District. For detail about the actual steps in the process of Electors voting click here.