Taking Matters Into Their Own Hands: States Changing The Way We Choose Presidents

Almost nobody reading this has ever voted for a United States President.

Voters conscientiously vote every fourth November supporting a candidate, but never actually vote for one.  Rather, they vote for “electors” who later cast to their ballot.

This is but one of the curiosities of the arcane Electoral College.  The Constitution’s framers undemocratically sought to buffer electors from the mob.  Alexander Hamilton wrote in Federalist 68, electors were to guard against somebody unqualified, but with a talent for “low intrigue, and the little arts of popularity”, attaining the presidency.

So, what can states do?  The Constitution leaves to states details like how electoral votes are cast.  Article II, Section 1, only provides “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” The Constitution does not say electors have to follow their state’s popular vote, but most states have legal penalties for electors who do not.

Historically there was always a wide variety of how states choose and directed their electors.  In the early republic, some state legislatures selected them, other states selected them by popular vote.  Even today there is variety.  Forty-eight states use the “winner take all” system of granting all state electors to whoever gets 51% of a State’s vote.  But Maine and Nebraska apportion electors based on the percentage of the state’s popular vote.

Now ten states (so far) have voted for a National Popular Vote plan aka “the by-pass compact” that would grant all a state’s elector votes to whatever candidate wins the national popular vote.  The compact takes effect when enough states join to total 270 electoral votes, which is the magic number to win the presidency because it is one vote more than half of the 538 total electors.

The problem is this system might not always reflect the popular will of a given state, even though it would be overall nationally democratic.  This change that could negate the will of an individual state’s electorate could be a constitutional problem in the Supreme Court.

It also raises the question of what it would change.  All the states that have passed the by-pass compact are blue.  So, the compact would have made no difference in the last election.  If Republican controlled states had joined, Hillary Clinton would have been president.

But, the Republican Party has no interest in supporting the by-pass compact.  Five times the popular vote has differed from the Electoral College and each time the Democrats lost.

  • 1824 – John Quincy Adams cut a deal with Henry Clay to beat Andrew Jackson. Jackson came back in 1830 as the founder of the modern Democratic Party.
  • 1876 – Republican Rutherford B. Hayes beat Samuel Tilden by cutting a deal with the South to end reconstruction.
  • 1880 – Republican James Garfield beat Winfield Scott Hancock.
  • 2000 – Republican George W. Bush beat Al Gore
  • 2016 – Republican Donald J. Trump beat Hillary Clinton

Because Republicans have always won the Presidency even without the popular vote, why would they support any change guaranteeing the Presidency to the winner of the popular vote?