Hillary Clinton won more votes than Donald Trump in last month’s presidential election. But due to the magic of the Electoral College, Donald Trump will be the next president of the United States.
Yes, the November 8 “presidential election” was in actuality the venerable ritual in which the residents of Florida, Ohio, Pennsylvania, and a few other states got the privilege of choosing the president of the United States of America.
Or, to be more precise, it was the venerable ritual in which all the states chose their representatives in the Electoral College. It’s those people who are going to technically pick the president this Monday.
It’s a patchwork Frankenstein’s monster of a system, which in the best of times merely ensures millions of Americans’ votes are irrelevant to the outcome because they don’t live in competitive states, and in the worst of times could be vulnerable to a major crisis.
Amazingly enough, though, nothing in the Constitution gives American voters the right to choose their president. That power is reserved for those 538 actual people who will meet in their respective states this Monday — the electors. It's up to the states to decide how to appoint them.
Despite the oddness and unfairness of this system, its defenders argue that it ordinarily “works” just fine. States award electors based on the outcome of the popular vote in the state. Those electors almost always end up voting the way they’re expected to. And the winner of the national popular vote is usually also the winner in the Electoral College.
But “usually” will be cold comfort to Democrats, who have now won the popular vote and lost the Electoral College in two of the past five elections.
1) What is the Electoral College, and how does it work?
The presidential election is generally portrayed as a battle to win states and their accompanying electoral votes. Hillary Clinton won Vermont, so she got its three electoral votes. Donald Trump won Alaska, so he got its three electoral votes. Whoever gets to 270 or more electoral votes first — a majority of the 538 total — wins the election.
So rather simply trying to win the most actual votes in the country, a presidential campaign must try to put together a map of state victories that will amass more than 270 electoral votes. That’s the simplified version.
What’s happening under the hood, though, is more complicated. When people go to the polls to vote for a presidential candidate, what they are actually doing is voting for each party’s nominated slate of electors in their respective states (or, in the case of Maine and Nebraska, in congressional districts too).
So when Donald Trump won the state of Alaska, the practical effect was that the Republican Party’s nominated elector slate there — former Gov. Sean Parnell, Jacqueline Tupou, and Carolyn Leman — officially became Alaska’s three electors.
This process repeated itself across the country, resulting in the selection of the Electoral College — the 538 electors who will cast their votes for president in their respective states this Monday. (In the modern era, this ceremonial occasion has been a formality that reiterates an outcome known well in advance.)
2) But the outcome of the presidential election is really just settled in a few swing states, right?
The Democratic and Republican parties have each developed solid bases in a series of states that are all but certain to vote for them in a presidential year. But the Electoral College winner will be determined by those few swing states that are more divided politically and look like they could go either way. This year, only the states in gray above were decided by a margin of less than 9 percentage points, as of Wednesday afternoon.
The swing states’ dominance is a consequence of the fact that almost every state chooses to allot all its electoral votes to whoever comes in first place statewide, regardless of his or her margin of victory.
That is, it doesn’t matter whether Clinton wins New York by a 30 percent margin or a 10 percent margin, since she’ll get the same amount of electoral votes either way. But the difference between winning Florida by 0.1 percent and losing it by 0.1 percent is crucial, since 29 electoral votes could flip.
Naturally, then, when the general election comes around, candidates ignore every noncompetitive state — meaning the vast majority of the country — and pour their resources into the few that tend to swing back and forth between Republicans and Democrats. That’s the best strategy for reaching that magic number, 270.
3) That seems unfair.
Well, there’s a lot that’s unfair — or at the very least undemocratic — about the Electoral College.
For one, the winner of the nationwide popular vote can lose the presidency. In 2000, Al Gore won half a million more votes than George W. Bush nationwide, but Bush won the presidency after he was declared the winner in Florida by a mere 537 votes. And that wasn’t the first time — electoral college/popular vote splits happened in 1876 and 1888 too, and occurred in 2016 too.
Second, there’s swing state privilege. Millions of votes in safe states end up being “wasted,” at least in terms of the presidential race, because it makes no difference whether Clinton wins California by 4 million votes, 400,000 votes, or 40 votes — in any scenario, she gets its 55 electors. Meanwhile, states like Florida and Ohio get the power to tip the outcome just because they happen to be closely divided politically.
Third, a small state bias is also built in, since every state is guaranteed at least three electors (the combination of their representation in the House and Senate). The way this shakes out in the math, the 4 percent of the country’s population in the smallest states end up being allotted 8 percent of Electoral College votes.
And fourth, there’s the possibility for those electors themselves to hijack the outcome.
4) Wait, the electors can hijack the outcome of the presidential election? What?
For decades, it’s been assumed that the 538 electors will essentially rubber-stamp the outcome in their respective states, and they mostly have. But there’s scarily little assurance that they’ll actually do so.
According to the National Conference of State Legislatures, about 30 of the 50 states have passed laws "binding" their electors to vote in accordance with the presidential popular vote in their state. But in most, the penalty for not doing so is only a fine, and it’s unclear whether stiffer penalties would hold up in court — it’s never been tested, and the Constitution does appear to give the electors the right to make the final call. Furthermore, there are still 20 or so states that haven’t even tried to bind their electors.
This hasn’t mattered much in the past because, almost always, the parties do a good enough job of vetting their respective electoral slates to ensure that they will indeed loyally back their party’s presidential nominee.
But there have been a few rogue, faithless, or just plain incompetent electors over the years — and their votes have all been counted as cast.
- In 1837, rogue electors from Virginia briefly blocked the seating of the vice president-elect because they were offended that he had a mixed-race common-law wife. (The Senate overrode them.)
- A Democratic elector from Tennessee cast his ballot for segregationist third-party candidate Strom Thurmond in 1948, and a Republican elector from North Carolina voted for segregationist third-party candidate George Wallace in 1968.
- In 2000, an elector from Washington, DC, withheld an electoral vote from Al Gore, because she wanted to protest the fact that DC didn’t have representation in Congress.
- Perhaps most bizarrely of all, in 2004, an elector from Minnesota who was supposed to vote for John Kerry for president instead voted for John Edwards. (It’s believed that this was an accident, but since the votes were cast anonymously, we don’t really know for sure. Great system!)
- And this year, one Democratic elector candidate from Washington state has repeatedly said that he will “absolutely not” cast his ballot for Hillary Clinton if she wins his state. We’ll see whether he follows through.
Rogue electors have never been numerous enough to actually affect the outcome of a presidential race. But it really doesn’t look like there’s much stopping them should they choose to do so.
Now, some defenders of the system, like Georgetown professor Jason Brennan, take the comforting view that the power of electors to go rogue is a good thing, since they could conceivably save America from a popularly elected majoritarian candidate who could oppress the minority.
But it seems just as likely, if not more likely, that electors could install that candidate with dictatorial tendencies against that popular will. Perhaps some electors are wise sages with better judgment than the American people, but others are likely malign, corrupt, or driven by their own idiosyncratic beliefs. (You’ll notice above that several of those historical rogue electors in history had racist motivations.)
In any case, if we had a process in which the electors were notable citizens who were chosen because they’re supposed to exercise good judgment, maybe Brennan’s defense would make sense. But in the system we have today, the electors are chosen to be rubber stamps. As a result, there’s incredibly little attention paid to who those electors even are outside internal party machinations in each state. Any defection by an elector would, essentially, be a random act that could that could hold our system hostage.
5) Why do we use such a bizarre system anyway?
The electoral college is, essentially, a vestigial structure — a leftover from a bygone era in which the founding fathers specifically did not want a nationwide vote of the American people to choose their next president.
Instead, the framers gave a small, lucky group of people called the “electors” the power to make that choice. These would be some upstanding citizens chosen by the various states, who would make up their own minds on who should be the president (they’d have to vote on the same day in their respective home states, to make it tougher for them to coordinate with each other).
The Constitution remained silent on just how these elite electors would be chosen, saying only that each state legislature would decide how to appoint them. Initially, some state legislators picked the electors themselves, while other states had some form of statewide vote in which the electors themselves would be candidates.
But over the new nation’s first few decades, two powerful trends in American politics brought attention to the Electoral College system’s shortcomings — the rise of national political parties that would contest presidential elections, and the growing consensus that all white men (not just the elite) should get the right to vote, including for president.
The parties and states responded to these trends by trying to jury-rig the existing system. Political parties began to nominate slates of electors in each state — electors they believed could be counted on to vote for the presidential nominee. Eventually, many states even passed laws requiring electors to vote for their party’s presidential nominee.
Meanwhile, by the 1830s, almost every state had changed its laws so that all electors were chosen winner-take-all through a statewide vote, according to Richard Berg-Andersson. The point of all this was to try to make the presidential election function like ordinary statewide elections for governor or senator, at least within each state.
6) Well, are there arguments for the Electoral College?
It’s tough to argue with a straight face that this bizarre system is inherently better than just a simple vote. After all, why doesn’t any state elect its governor with an “Electoral College” of various counties? Why does pretty much every other country that elects a president use a simple popular vote, or a vote accompanied with a runoff?
Now, you can argue that the Electoral College’s seeming distortions of the popular will aren’t as bad as they seem — for instance, by pointing out that swing states tend to swing along with the nation rather than overriding its will, or that the popular vote winner almost always wins. But of course, that’s not guaranteed to always be the case, and the biggest major exception (the 2000 election) was an incredibly consequential one.
Others try to fearmonger about the prospect of a contested nationwide recount — which, sure, would be ugly, but if you’ll recall, the Florida recount was also extremely ugly. And since there are so many more votes cast nationally, it’s much less likely that the national vote would end up a near tie than that a tipping point’s state vote would end up as a near tie.
Some argue that the Electoral College ensures regional balance, since it’s mathematically impossible for a candidate with overwhelming support from just one region to be elected. But realistically, the country is big and broad enough that this couldn’t happen under a popular vote system either — any regional candidate would need to get some support outside his or her region.
But when we get down to brass tacks, the most serious objections to reforming the Electoral College come from rural and small-state elites who fear that under a national popular vote system, they’d be ignored and elections would be decided by people who live in cities.
Gary Gregg of the University of Louisville wrote in 2012 that eliminating the Electoral College would lead to “dire consequences.” Specifically, he feared that elections would “strongly tilt” in favor of “candidates who can win huge electoral margins in the country’s major metropolitan areas.” He continued:
If the United States does away with the Electoral College, future presidential elections will go to candidates and parties willing to cater to urban voters and skew the nation’s policies toward big-city interests. Small-town issues and rural values will no longer be their concern.
And Pete du Pont, a former governor of Delaware (three electoral votes), has made a similar case, calling proposals for a national popular vote an “urban power grab.”
But a national popular vote system wouldn’t devalue the votes of people who live in rural states and small towns. It would accurately value them by treating them equal to people who live in cities, rather than giving them an extra weighting. Furthermore, small-state interests are built into the Senate’s math (where Delaware absurdly gets as many senators as California), and many House districts are rural. So rural and small-state areas are hardly hurting for national political representation.
Sure, candidates might end up spending less time stumping in the rural areas that currently happen to be lucky enough to fall within the borders of swing states, and more time in urban centers. But is that really a convincing rebuttal to the pretty basic and obvious argument that in the most important electoral choice Americans make, their votes should be treated equally?
7) Is there any hope that the US will ditch the Electoral College someday?
For decades, polls have shown that large majorities of Americans would prefer a popular vote system instead of the Electoral College. For instance, a 2013 Gallup poll showed 63 percent of adults wanted to do away with it, and a mere 29 percent wanted to keep it. (However, these margins have tightened since the 2016 election.)
But to ditch the Electoral College entirely, the US would have to pass a constitutional amendment (passed by two-thirds of the House and Senate and approved by 38 states) — or convene a constitutional convention (which has never been done, but would have to be called for by 34 states). Either method is vanishingly unlikely, because each would require many small states to approve a change that would reduce their influence on the presidential outcome.
There is one potential workaround, however: the National Popular Vote Interstate Compact, a clever proposal that uses the Constitution’s ambiguity on electors to its own ends.
A state signing on to the compact agrees that it will pledge all its electors not to its state winner but to the victor in the national popular vote — but only if states controlling 270 or more electoral votes have agreed to do the same. If they do, and everything works as planned, then whoever wins the popular vote will necessarily win the electoral vote too.
It’s a fun proposal that’s already been enacted into law by 10 states (including massive California and New York) and the District of Columbia, which together control 165 electoral votes. But there’s one big obstacle: All of the states that have adopted it are solidly Democratic, with zero being Republican or swing states.
So unless a bunch of swing states decide to reduce their own power, or Republican politicians conclude that a system bringing the power of small and rural states in line with that of big urban centers is a good idea, the compact isn’t going to get the support it needs, as Nate Silver has written. (Furthermore, it wouldn’t solve the rogue elector problem.)
As messed up as the Electoral College is, then, we’re likely stuck with it for some time. Your safe state vote might be wasted, or it might even be subverted by rogue electors.
But at least you’ll get to draw fun maps.
This article was originally published before the election. Minor updates have been made to reflect that the election has concluded.