Voters cast ballots in every presidential election with the intention of choosing the country’s next leader. The notion that the president is ultimately chosen by 538 electors rather than 330 million Americans is still debatable, though. The Electoral College has withstood multiple reform attempts in spite of mounting criticism.
Trump and Harris were expected to compete closely, according to pre-election forecasts. Nevertheless, Trump easily won the Electoral College and the popular vote in the U.S. presidential election, defying their forecasts.
With 312 Electoral College votes to Harris’ 226 votes, Trump won the most popular vote margin of victory of any Republican in 36 years, giving him a majority of 270.
The necessity and fairness of the Electoral College have been hotly debated since the 18th century. According to a September Pew Research Center survey, more over 60% of Americans are in favor of doing away with it. Then why is it still in existence?
The Defender talked with Thurgood Marshall School of Law professor and legal expert Martin Levy to learn more about this organization. They talked about the intricacies of the Electoral College, its historical foundations, and current reform discussions.
Defender: Why was the Electoral College established, and where did the concept originate?
Martin Levy: The arguments at the Philadelphia Convention in 1787 led to the creation of the Electoral College. The framers disagreed greatly about democracy. The Federalists, who were opposed to absolute majority rule, and the Jeffersonian Republicans, who supported democratic governance, were on opposing sides. Our current system reflects the compromise they came to.
Even though only white male property owners were allowed to vote at the time, the Federalists were concerned that the majority might not always be informed. Our government’s structure was shaped by this apprehension about direct majority rule. For instance, the Senate, where each state has equal representation, is less democratic than the House of Representatives. These discussions led to the Electoral College—a combination of state representation and democratic input—being associated with the presidency.
The necessity to maintain a balance of power between the Northern and Southern states, particularly with regard to slavery, also had a significant impact on the Constitution. The populations of the North and South were comparable at the time, but Southern states—where slavery was common—wanted more power. Because of this, the notorious Three-Fifths Compromise gave Southern states increased voting power by allowing them to consider enslaved persons as part of their population for representational purposes.
Defender: How has the Electoral College’s function changed over time?
Levy: The Constitution gives the federal government the authority to regulate the election process by stating that Congress would choose how it would be conducted. The first piece of such legislation was passed in 1887, following Reconstruction. It was open to interpretation and extremely generic.
Significant changes have occurred in the contemporary age, particularly after George W. Bush became office in 2000. After a Supreme Court ruling, he won the president by the Electoral College even though he lost the popular vote. Donald Trump’s election in 2016 was similar in that he won the Electoral College but lost the popular vote.
The first major statutory reform since 1887 was brought about by the 2020 election. Congress responded to Trump’s challenges following the 2020 election by passing a law in 2022. This law addressed the Vice President’s function in the Electoral College, addressed the timing for electoral proceedings (the first Tuesday after the second Wednesday in December), and clarified the proper way to tabulate votes. According to the new law, the vice president’s position is strictly ministerial, which means they have no authority to decide or settle disagreements over the legitimacy of voters or their votes.
Additionally, the law now mandates that any objections to the electoral vote count must be signed by at least one-fifth of the senators and one-fifth of the members of the House, rather than simply one member as it was in the past. This is a major shift in reaction to the concerns that Trump brought up following the 2020 election.
Protector: Could you describe the current operation of the Electoral College, including the casting of electoral votes and election day?
Levy: Statutes mostly control that. According to the constitution, Congress is tasked with passing legislation that establish the procedure. Election day marks the beginning of the timeline. The first Tuesday following the second Wednesday in December, when the electors convene and cast their ballots, is the crucial day. The electors gather in their individual states to vote for the president and vice president after each state governor approves the elector selection process. The Senate president, who is also the current vice president of the United States by law, receives these votes.
The vice president presides over a joint session of Congress on January 6th, where the votes are actually tabulated. Each state delegation casts one vote to choose the winner in the House of Representatives if no candidate obtains a majority of electoral votes. It’s crucial to remember that recent legislative changes, particularly the Electoral Count Reform Act of 2022, have simplified and clarified certain parts of the procedure, such as lowering the possibility of objections and providing more precise rules for the vice president’s role in electoral vote counting. These changes were implemented to guarantee a more transparent and effective procedure and to address concerns brought up in the wake of the 2020 election.
Protector: Opponents contend that smaller or swing states are disproportionately impacted by the Electoral College. What are your thoughts on the criticism? Does it fairly evaluate the system?
Levy: It’s a valid criticism, in my opinion, and it has to do with the Electoral College’s beginnings, as I previously stated. Because the South was afraid that a majority in the North would oppose slavery, the system was created to curtail majoritarian power. The Three-Fifths Compromise increased the importance of a white Southerner’s vote in comparison to a Northerner’s, and the Electoral College granted states equal representation regardless of population. Therefore, the system does, in fact, offer swing or smaller states greater influence, which was one of its original goals.
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Protector: Which possible Electoral College improvements have been put up over time? Why haven’t these concepts taken off?
Levy: Eliminating the Electoral College completely and electing the president by popular majority is the main reform idea. Since it has been demonstrated that a candidate can win the presidency without winning the popular vote, many people make the case for this. But implementing such a reform would necessitate a constitutional amendment, which requires the consent of a majority of states and a two-thirds vote in Congress. This makes the process challenging.
Politics also come into play. If one party benefits from the Electoral College system, they re unlikely to support changing it. Since more Republican presidents have been elected in recent years without receiving a majority of the popular vote, Republicans have profited more from the Electoral College. They may therefore oppose reform because they perceive it as a political gain. Because of this, a significant alteration to the Electoral College system is unlikely to occur anytime soon.
Defender: Why has the Electoral College remained in place for so long despite frequent calls for reform?
Levy: As I mentioned earlier, the difficulty lies in the amendment process. The party that benefits from the Electoral College will be reluctant to get rid of it. And without overwhelming public support pushing Congress to act, it s hard to get the two-thirds vote necessary to amend the Constitution. So, unless there s a political agreement across the board, it s unlikely we ll see the Electoral College abolished or significantly reformed.
