by Raffi Piliero
Although enshrined in the Constitution by the founding fathers, the Electoral College has become a hot button issue over the past twenty years, attracting an ever greater number of defenders and detractors in recent years.
One hardly has to wonder why; twice in the past twenty years, the Electoral College has yielded a different result in a presidential election than the popular vote. For those who would have preferred a President Gore in 2000 or a second President Clinton in 2016, the problems are obvious: the principle of “one person, one vote” requires that votes count equally, irrespective of geography. The election of a president that received less than a plurality of votes is odd at best and fiercely anti-democratic at worst.
In contrast, those who were happy to end up with President Bush and President Trump in 2000 and 2016, respectively, have their own set of arguments ready to defend an institutional feature nearly as old as the country itself. Elections determined by popular vote encourage politicians to curry favor with the most populous states, spending all of their time campaigning in New York, Texas, and California, paying scant attention to the forgotten men and women of the Midwest.
The Electoral College forces consideration of all states, because all have electoral significance, elevating the importance of smaller (and, incidentally, usually conservative) states.
Instead of discussing the relative merits or demerits of the Electoral College, I’ll pose a different question: For those who want to change the system, what next?
Two distinct ideas have been proposed to scrap the Electoral College as we know it in favor of a popular vote:
- A constitutional amendment that eliminates the Electoral College;
- An interstate compact of states pledging their electoral votes to the winners of the popular vote.
I’ll briefly give a primer on what each of these approaches would look like, their strengths and weaknesses, and their relative likelihood of success in the coming years.
A Constitutional Amendment
What is it?
A constitutional amendment that would abolish the Electoral College.
The Twelfth Amendment, proposed in 1803 and ratified in 1804, officially established the Electoral College in the Constitution, enshrining an elector-driven procedure for the election of the President and Vice President. While this amendment did not stipulate how the electors must cast their votes (which will become important in the next section), it did require that electors choose the President. This approach to abolition would simply override the Twelfth Amendment with a new amendment, requiring that the President be chosen through popular vote.
Will it happen?
No. The simplicity of this approach has a certain elegance to it. An amendment is proposed, enacted, and becomes law; with it, the Electoral College vanishes. However, simplicity in theory rarely means simplicity in practice; the number of impossibly high hurtles a constitutional amendment would need to clear make this proposal as close to impossible as anything in modern politics. Amendments that aim to sound the death knell of the Electoral College have been proposed before, from the failed Bayh-Celler amendment of 1969 to Senator Schatz’s (D-HI) proposal just this year. While well-intentioned, they run up against the same problem; the virtual impossibility of clearing every veto-gate to create a constitutional amendment.
To create a new constitutional amendment, the proposed bill would need to be passed by two-thirds of both the House and the Senate, and ratified by three-fourths of all states. Each and every step of this would be no cakewalk; in a political climate where a bill recognizing that the sky is blue would pass along party lines, a bill requiring a supermajority on a politically contentious issue would be dead on arrival in Mitch McConnell’s Senate.
Even if such legislation magically made it out of Congress, power at the state-level skews heavily Republican; Democrats only hold 23 governorships, in comparison to the 27 Republicans residing in the governor’s mansions. Democrats would need to hold each of those 23 states in line, as well as secure 11 Republican defections to ratify the amendment, an almost insurmountable task.
What is it?
One proposal drafted in 2006 and currently circulating is the National Popular Vote Interstate Compact, or NPVIC. Contrary to a constitutional amendment, the NPVIC does not abolish the Electoral College. Rather, the compact is an agreement among states to pledge their electoral votes not to the recipient of the most votes state-wide, but to the winner of the popular vote nationally.
An interesting legal wrinkle in the Electoral College is that the Twelfth Amendment stipulates that electors choose the President, but does not stipulate how they cast their votes. This has resulted in surprising outcomes in the past, with so-called “Faithless Electors” in 2016 voting for the presidency to go to Colin Powell, John Kasich, and the Faith Spotted Eagle, despite none being within remote distance of appearing on the ballot.
The interstate compact would not require a constitutional amendment because all it alters is how electors pledge their votes; it de jure maintains the Electoral College, because electors still make the decision but de facto abolishes it because how the electors vote is predetermined by the popular vote.
Will it happen?
Likely not, but it isn’t out of the question. Since first introduced in 2006, the compact has secured the support of 15 states and the District of Columbia, adding up to 196 electoral votes. To go into legal effect, the compact would need to secure 74 more votes, enabling the compact to award the winning candidate 270 electoral votes, enough to secure the presidency.
Ostensibly, this seems easy; when you’re nearly 75% of the way there already, securing a few more votes poses little challenge. However, the last leg will prove challenging. The states that have thus far signed onto the compact are, chronologically, Maryland, New Jersey, Illinois, Hawaii, Washington, Massachusetts, D.C., Vermont, California, Rhode Island, New York, Connecticut, Colorado, Delaware, New Mexico, and Oregon. As is readily apparent, each of these states is Democratic, and securing Republican states to agree to a pledge that would have taken away two presidencies in twenty years will be a challenge.
Additionally, even if Democrats control state legislatures, they need to have a veto-proof majority to override the opposition of Republican governors. However, even that may not be enough. In Nevada, the measure passed the state legislature, but was quickly vetoed by a Democratic governor, Steve Sisolak. Furthermore, joining the compact is not permanent, and the loss of control of legislative power within a state that already committed to the compact could quickly spur a movement to withdraw from the pact.
To succeed, the NPVIC needs to secure defections from, at minimum, a couple of midsized states (such as Virginia, Arizona, Pennsylvania, Wisconsin), as several smaller swing states (Minnesota, New Hampshire, Michigan, and North Carolina being options), in addition to hoping that Democrats in those states stay in line, all while not losing ground in states already party to the compact. In other words, a slew of events have to happen in the right places at the right times, making the compact not impossible, but unlikely.
Raffi Piliero is a student at Georgetown University and a recent intern with Rep. Eliot Engel (D-NY).