Your Burning Questions About the Electoral College Answered
Why do we have 538 electors? Who chooses them? Does your vote count? What does the 3/5ths Compromise have to do with the Electoral College?
The US American system of governance can be confusing, with many levers working together, checking and balancing, in an effort to resist tyranny and protect individual rights.
The Electoral College is part of the US’s system of checks and balances. How does it work?
It Starts with the Census
The Electoral College’s foundation is the decennial census. The census’ main function is to count the population in order to allocate 435 federal House representatives. Why 435? The number of representatives was capped at 435 in the 1911 Apportionment Act. In 1921, after Congress failed to pass an apportionment act from the 1920 census, legislators voted to make the Apportionment Act, with the cap on national representation, automatically renew.
Though the US has 435 national House Representatives, there are 538 electors. Article II of the US Constitution stipulates that each state be granted one elector for each national house representative, and one for each national senator. In 1961, Congress awarded Washington D.C. (not a state) three electors, bringing the US’s total number of electors to 538.
One of the main complaints about the Electoral College is that some states have a higher elector to voter ratio than other states. Why is this? The answer is equity, a nuanced form of equality that creates remedies for those in the minority. So, while California might be the most populous state and Wyoming the least, Wyoming is nonetheless granted a minimum representation of two national senators in the US Senate, and one national representative in the US House. Therefore, following Article II of the Constitution, even the smallest state is allocated at least 3 electors to represent them nationally in the presidential election.
Without an equitable vote granted by the Electoral College, California (39.5 million people) would have 64x the power of Wyoming (about 600,000 people). With the Electoral College, the state of California (55 electors) still has massive advantage, but only 18x the power of Wyoming (3 electors). The Electoral College is a balance for voting equity among states.
The Census holds the key to another hot question — how the 3/5ths Compromise relates to the Electoral College. The 3/5ths Compromise was the notorious deal that counted slaves as 3/5 of a person in the census. In Virginia, of about 1 million people, almost 400,000 were slaves. Should slaves have counted toward federal apportionment of representatives? The North said no, but the South refused to join the Union, unless their slaves counted. The North negotiated to count slaves, but decrease the South’s population advantage by only counting slaves as 3/5 of a person, instead of a whole person.
Many go wrong connecting the 3/5ths Compromise to the reason for the Electoral College. The Electoral College would have been used with our without the 3/5ths Compromise. Without it, however, slaves would likely not have been counted toward apportionment.
Today, black Americans can vote and no one is counted as 3/5 of a person (thanks to the 13th, 14th, and 15th Amendments), but a similar dynamic has popped up around the Electoral College and the US’s ‘modern slave’ class (undocumented immigrants). Undocumented immigrants today are not citizens and cannot vote, but do count toward a state’s population for census apportionment. This increases the power of states that have a high undocumented population, and gives some citizens more power in their voting district than other citizens of their state.
Lawsuits have been filed claiming that the modern slave advantage violates the constitutional principle of “one person, one vote” within voting districts and states. In April 2016 the Supreme Court touched on this matter in Evenwel et al. v. Abbot, Governor of Texas. Justice Ginsburg noted that “based on constitutional history, this court’s decisions and longstanding practice, a state may draw its legislative districts based on total population,” but, she added, “We need not and do not resolve whether, as Texas now argues, states may draw districts to equalize voter-eligible population rather than total population.”
One Person One Vote? Does Your Vote Matter?
Many burning questions around the Electoral College dance around the constitutional principle of “one person, one vote”.
The National Popular Vote Compact aims to establish “one person, one vote” on a national level, eliminating state representation in presidential elections (Electoral College votes), and deferring to direct election of the president by the nation as a whole. But, the US does not have a direct election of the president, by constitutional design, to uphold the principles of self-determination, equity among states, and to guard against tyranny of minority and majority factions.
The US federal system draws political boundaries (states, counties and so on), so that the people within those political boundaries have the power of self-determination — the ability to make decisions that affect them on a local level. Since 1941, self-determination has been seen as a basic human right, internationally. The Electoral College provides for self-determination with its balance between a popular vote, at the state level; and representative government between states, at a national level.
Every citizen in the US has a popular vote within their state boundaries. The Electoral College then gives each sovereign state representation, based on their popular vote, in the national election.
Electors are state representatives, and states have the constitutional leeway to decide how their electoral votes will be divvied out to represent their popular vote. Most allot all of their electors to the candidate who wins the state’s popular vote, even if the candidate wins by a mere fraction. Two states, Nevada and Maine, split their electors between the candidate who wins the most voting districts and the candidate who wins the statewide popular vote.
Historically, the reason behind efforts to eliminate the electoral college has been “faithless electors”, though the modern push, like National Popular Vote Compact, cites inherent racism in the Electoral College (attributed to the 3/5ths Compromise counting slaves as less than a whole person), and the inequality of weighted votes for small states.
Fear of faithless electors is rooted in the constitutional freedom electors have to vote against their state’s popular vote. This freedom can act like a safety valve if, for instance, a candidate dies after votes are cast. In such a case, electors have the authority to re-allocate their votes to another candidate. While this safety valve might be useful in rare occasions, the threat of state electors abusing their constitutional freedom to maliciously vote against their state’s constituents has dominated criticism of the Electoral College. On July 6, 2020, the Supreme Court ruled, in Chiafolo v. Washington, that states have the authority to fine or remove “faithless electors”. They don’t have to, but they can. The ruling could hamper the National Popular Vote Compact because the compact demands that state electors vote for the candidate who wins nationally, and against their state’s popular vote. In other words, for the National Popular Vote Compact to work, states would have to demand that their electors be “faithless” to their constituents.
Much ado has been made around the idea that voters do not vote for a candidate, but for electors — this is a confusing statement, and not correct. States are granted authority by the Constitution to appoint electors as they deem fit, by legislation, but all states have legislated that electors be chosen by candidates. As a candidate wins ballot access in each state, they are required to file paperwork naming a slate of electors equal to the number of electors federally allocated to that state. Candidates choose electors whom they believe will be loyal to their campaign — voting for the candidate if they win, and choosing an appropriate alternative, if some tragedy, like death, occurs. The Electoral College’s votes are mainly ceremonial. After a state’s popular vote is in, the candidate who wins sends their slate of electors to ceremonially represent the state’s electoral votes to the nation.
Your vote does count! When you vote, you do vote for a candidate. That candidate has chosen a slate of electors to ceremonially represent them, if they should win; and vote in their spirit, if some issue should arise to prevent your candidate from fulfilling their role. Within each state, the principle of “one person, one vote”, or popular vote, is honored.
Resisting Tyranny: Does the Electoral College Work?
Reasoning for the Electoral College can be found in James Madison’s Federalist #10, written in 1787, where conflicts and remedies between majority and minority groups are explored.
Madison starts his argument by saying, “Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.” He goes on to describe the tyrannies that plague democracies — tyranny of the majority and tyranny of the minority. “By a faction,” he writes, “I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”
The remedy adopted by the US to address the danger of factions was a mix between popular democracy and representative government. Hence, The United States is a Democratic Republic.
By Madison’s reasoning, a popular vote within states prevents minority factions from taking too much power, and state representatives on the national level guard against majority factions that would bowl over any minority.
Does the Electoral College function as it should — as a check and balance to the tyranny of minority and majority factions? So far, in every election, we see it working. Close elections put the system to the test. If the Electoral College did not work to provide equity, self-determination, and prevent tyranny of factions in close elections, it would not be a guard.
The few times that the Electoral College has kicked in to balance popular votes, the country was deeply divided by factions. The 2016 election is a good example. The national popular vote favored Clinton by a scant 2%, with a majority of Clinton’s votes concentrated in a few urban areas. Instead of relying on a national majority faction to decide the election, power was dispersed to the states’ popular votes, and a plurality of the states’ popular votes won the nation. Minority voices were represented through the Electoral College, preventing a majority faction from infringing on their self-determination; and people’s popular votes within their sovereign political boundaries drove the outcome.
Federalism is key in the US’s system of government. It gives states sovereign authority, providing for the human right of self-determination; and also resists tyranny of factions, by making it hard for a faction in one state to affect any other state, or for an faction within a state to go against the popular will of the people.
US Americans should remember that the federal government and the president are not meant to have high levels of power. From local municipal elections to State House and State Senate representatives (vs. US House and Senate reps), the people have many levels on which to exercise their human right of self-determination.
State sovereignty, the allocation of two senators per state (no matter how large or small), and the Electoral College are all functions of federalism — and federalism is working.
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Originally published at https://www.klbwriting.com.