The Presidential election is not over yet … I know what you are thinking. You are wondering about the Electoral College process that starts on Dec. 14 with the electors voting by paper ballot and ends on Jan. 6, 2021, with the House and Senate in joint session to count those electoral votes. Indeed, this process of how we elect our President and Vice President has not changed much since our nation’s founding. But, the United States looks very different today than it did in 1789 when the United States Constitution was first ratified and our founding fathers came up with the process of using electors as a compromise between a popular vote and a vote by Congress.
Our nation has grown from 13 states and around 4 million people to 50 states and approximately 328 million residents. And yet, we, as citizens, do not vote directly for the President. In fact, until the passage of the 17th amendment in 1913, we also did not have the right to directly vote for our US Senators. Before then, they were selected by state legislatures. All across the nation, over the last several months, citizens were voting to elect the electors in their states who will be charged with selecting the next President. You may have even noticed on your ballot when you voted in this election that under the party affiliation, the text read “Electors for” Biden, Trump, or Jorgensen.
The framers originally created the Electoral College system as a sort of governmental protection against the “masses of uneducated citizens” who would otherwise be responsible for selecting the nation’s future presidents. Our own George Mason, a Virginia delegate to the Constitutional Convention, considered a president elected by popular vote to be a big mistake. He argued that “it would be as unnatural to refer the choice of a proper character for chief magistrate to the people as it would to refer a trial of colours to a blind man.” Without the access to information we have today, and with much of the country illiterate, they were skeptical that voters would make informed decisions about the candidates they were voting for. Instead, the framers believed the wisest option would be to select a group of trusted “electors,” a group educated on the candidates, and how that group would be selected would be up to the individual states. In Virginia they are chosen by party convention. In Florida, uniquely, they are chosen by the Governor. Furthermore, electors would meet in their respective states as well in order to avoid political gamesmanship you may find in a national convention. Perhaps that made sense in 1787, but in the 21st century, the Electoral College continues to prove that it is a dated system that is in need of reform. Placing power back into the hands of the informed public is the most democratic thing to do. Indeed, direct election would make everyone’s vote count equally.
So, let’s discuss the Electoral College system. In total, there are 538 electoral votes nationwide, and each state has an equal amount of electoral votes to the number of its members in the U.S. Senate plus its number of members in the U.S. House of Representatives. In order to be elected President, a candidate must receive at last 270 electoral votes, or a majority. If there's a tie among the electors or if no candidate gets a majority, then the election goes to the House of Representatives.
This creates a scenario where, depending on which state an individual lives in, they might have more or less representation by their state’s electors than individuals in other states. For example, in Wyoming which has a population of approximately 578,000 people and has 3 electoral votes, each electoral vote represents 192,000 citizens. In a state like California, which has 39.5 million citizens, each electoral vote represents 718,000 citizens. Despite having a higher population and amount of electoral votes than Wyoming, Californians are actually LESS represented in the Electoral College than those who live in Wyoming. This holds true for many states around the nation. This doesn’t really seem fair, does it?
Each state has the authority to allocate their electoral votes however they see fit. Most states utilize the “winner take all” scenario, where a state’s popular vote winner in turn gets all of a state’s electoral votes. Nebraska and Maine differ, splitting their electoral votes using the congressional district method. Nebraska allocates two of its five electoral votes to the statewide winner but allows each of its three congressional districts to award one electoral vote to the popular vote winner in their specific district. In Maine, two out of four go to the statewide winner, and two go to the winner in the two respective congressional districts.
So, how do we allocate our 13 electoral votes in Virginia? According to the Virginia Code, “in elections for President and Vice President of the United States, the appropriate chairman or secretary of each political party shall furnish to the State Board … the names of the electors selected by the party at its convention held for that purpose, together with the names of … the candidates for President and Vice President for whom the electors are required to vote in the Electoral College ... a copy of a subscribed and notarized oath by each elector stating that [they] will, if elected, cast [their] ballot for the candidates for President and Vice President nominated by the party that selected the elector, or as the party may direct in the event of death, withdrawal or disqualification of the party nominee.” So, here in Virginia, we utilize the “winner take all” method”, and it is against the law for electors to be “faithless”, or vote contrary to the winner in Virginia.
Out of the total 58 presidential election cycles in history, five elections ended with the national popular vote winner losing the Electoral College. Two of these instances occurred during the last 20 years—2000 and 2016. This means that one third of the elections in the 21st century have had this worrisome outcome.
So, how do we go about reforming the Electoral College system and make our Presidential elections more modern, fair, and representative? The National Popular Vote Interstate Compact (NPVIC), which I supported this year in the Privileges and Elections committee, creates an agreement between states to allocate their electoral votes to the winner of the national popular vote. Should enough states sign on to this compact to reach the 270 vote threshold, we will never again be faced with the scenario of a candidate who lost the popular vote becoming President. As of July 2020, the NPVIC has been enacted into law in 16 jurisdictions possessing 196 electoral votes, including four small states (DE, HI, RI, VT), eight medium-sized states (CO, CT, MD, MA, NJ, NM, OR, WA), three large states (CA, IL, NY), and the District of Columbia. 74 additional electoral votes will be needed before it could go into effect.
A presidential election without the Electoral College and relying on the national popular vote would produce a vision of a less polarized America, showing that typical “red” or “blue” states still have significant numbers of voters of other affiliations, helping those voters feel less isolated, and possibly more likely to vote and be engaged in the electoral process. It would also help to eliminate the focus on “swing states”, encouraging candidates to seek votes from citizens all across the country and not just from a select few battleground states with large numbers of electoral votes.
Just as the time eventually came to directly elect our US Senators, perhaps the time has now come for the American people to directly elect our President and Vice President.