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The Electoral College – that sometimes maligned process by which the United States elects a new president – was initially established as a compromise between allowing Congress to vote for the next leader of the country and allowing the popular vote to dictate who would hold the position.[1] The founding fathers did not believe that the general public should be tasked with electing a leader and instead gave that job to a group of experts who would make the decision. This means that when American citizens go to the polls, they aren’t voting for the President directly, but rather each vote helps to decide which candidate will receive that state’s electors.[2] That state’s chosen electors then meet and cast their votes for President and Vice President.

The Electoral College has 538 electors, consisting of one for each member of the House of Representatives and one for each of the states’s two Senators.[3] While most states allocate all available electors for whichever candidate wins in that state, Maine and Nebraska use a system of proportional representation, meaning that depending on how each district votes, the electoral vote could be split between the two parties.[4] For example, Maine has four electoral votes for its two Congressional districts; it gives one electoral vote to each Congressional district and gives the other two to the candidate who receives the most votes for the entire state. In the vast majority of states, however, the candidate who wins the state election gets all of that state’s electoral votes, even if the margin is as small as 50.01 percent to 49.99 percent.[5] All this results in a system that sometimes allows a candidate to gain enough electoral votes (270) to be elected while simultaneously failing to get the popular vote. This confounding situation has occurred five times in the history of the United States, in 1824, 1876, 1888, 2000, and 2016.[6]

The irony of this situation is that America, known for its love and championing of democracy, does not allow its citizens to make decisions about the person they want to elect as President. The founders did not trust the public to choose the right candidate then, and we are still not able to make that decision today.[7]

And yet the troublesome nature of the Electoral College does not end with a mistrust in the American people’s ability to make the right call. An additional problem rises from the fact that in some states, your vote is worth more than in others.[8] California gets one electoral vote for every 722,871 residents whereas Wyoming gets one electoral vote for every 195,396 residents, which means that a vote in Wyoming is worth more than a vote in California.[9] It is confounding that although the idea of “one person one vote” was upheld for state elections by the Supreme Court in Evenwel v. Abbott,[10] no similar concept applies to the election of the President.

The fact is that we do not live in the same world that existed at the time of the founding of this country. If America purports to operate based on the will of the people, surely the fact that more of those people vote for one candidate than the other should mean something. If a pure “popular vote” election is too unpalatable, a proportional voting system similar to that of Maine could be a very good and sensible compromise.

Notes:

[1] See What is the Electoral College?, National Archives and Records Administration (last visited Nov. 13, 2016), https://www.archives.gov/federal-register/electoral-college/about.html [http://perma.cc/C7FK-5X2B].

[2] See Leon Freidman, Why Do We Have The Electoral College?, Huffington Post (Nov. 10, 2016), http://www.huffingtonpost.com/leon-friedman/why-do-we-have-the-electo_b_12885468.html [https://perma.cc/RH84-7GUV].

[3] See What is the Electoral College?, supra note 1.

[4] See Frequently Asked Questions, National Archives and Records Administration (last visited Nov. 13, 2016) https://www.archives.gov/federal-register/electoral-college/faq.html#wtapv [http://perma.cc/7N67-8ZJB].

[5] See id.

[6] See Freidman, supra note 2.

[7] See id.

[8] See id.

[9] See John A. Tures, The Built-In Bias of the Electoral College, Observer (Nov. 4, 2016), http://observer.com/2016/11/the-built-in-bias-of-the-electoral-college/ [http://perma.cc/9FVV-6FGF].

[10] 136 S. Ct. 1120, 1121 (2016).