States Should Lead the Effort to Reform the Electoral College

Despite unsupported claims of voter fraud, a litany of lawsuits, presidential pressure to overturn state election results, and a futile last-ditch effort by some congressional Republicans to object to the certification of the Electoral College’s vote, a joint session of the U.S. Congress is expected to finalize the election of Joe Biden as the next president. Although the process appears to have worked, the Electoral College continues to perpetuate discrimination towards communities of color, and it’s time for reform.

As a quick refresher on how the Electoral College works, the number of electoral votes each state gets is based on how many senators and representatives that state sends to Congress. The 27th amendment allows Washington, D.C. to receive a number of electoral votes equal to “the least populous State,” and as such, it gets 3 electoral votes. This adds up to the 538 electoral votes we are all familiar with, as well as the need for a candidate to receive at least 270 votes to win.

How did we come to this unique way of electing our president? Well, many of the founders, such as Thomas Jefferson, were adamant that there be an indirect way of electing the president to provide a buffer against “well-meaning, but uninformed people.” 

Beyond this general distrust of the public, some of the founders from the South such as James Madison of Virginia had a second reason for opposing the direct election of the president, which was that “[t]he right of suffrage was much more diffusive in the Northern than the Southern States.” In other words, because slaves didn’t vote, Southerners feared that they would be at a disadvantage when electing the president.

Eventually, Oliver Ellsworth of Connecticut proposed that the president “be chosen by electors, appointed by the legislatures of the States in the following ratio, to wit: one for each State not exceeding 200,000 inhabitants; two for each above that number and not exceeding 300,000; and three for each State exceeding 300,000.” This proposal made sense for less-populous states because even though more-populous states would receive up to three times as many electoral votes, presumably, all states would one day have more than 300,000 inhabitants, at which point each state would then receive the same number of electoral votes.

While the delegates at the Constitutional Convention agreed to the portion of Ellsworth’s proposal that the president be chosen by electors and the electors be chosen by state legislatures, they had a harder time agreeing on a method for determining how many electors each state would receive.

In due course, the delegates decided to partially count the slave population when apportioning seats to the House of Representatives, per the so-called “three-fifths compromise.” At this point, southern delegates successfully pushed to link the number of electors a state received to each state’s congressional delegation, which unsurprisingly ended up benefiting southern slave-owning states.

For instance, the 1790 census records that New Hampshire had 141,727 free persons, while South Carolina had 141,979 free persons. Without the three-fifths compromise, both of these states would have received the same number of electoral votes. But, with the three-fifths compromise, New Hampshire received six electoral votes, to South Carolina’s eight. This divergence is a result of the 158 enslaved persons recorded in New Hampshire, versus South Carolina’s 107,094 enslaved persons.

Ultimately, the Electoral College helped to protect and promote the institution of slavery. Since electoral votes were based on a state’s congressional delegation, and the three-fifths compromise inflated the congressional delegation of states based on their enslaved population, the Electoral College effectively incentivized southern states to increase the number of slaves within their jurisdiction to obtain even more electoral votes. Furthermore, it encouraged southern states to keep people enslaved so as to prevent the potential of former enslaved persons from moving north, which would result in a loss in population and electoral votes.

Although the three-fifths compromise has been repealed, the inhabitants of some states still count more than others. This is because whiter, less populous states have more electoral votes per person than states that are more populous and more diverse.

Take Georgia for example. Based on 2010 census data, Georgia has a population of nearly 10 million people, 30.5% of which are African American. Georgia gets 16 electoral votes, which equates to one electoral vote per every 605,478 residents. Compare that to Wyoming, which has a population of 563,626 with 0.8% being African American. Wyoming gets 3 electoral votes, which equates to one electoral vote per every 187,875 residents. Effectively, this means that residents of Wyoming have more than three times as much influence than the residents of Georgia.

So, how can states change this and reform the Electoral College? Today, the U.S. holds the distinction of being the only democracy in the world where a presidential candidate can receive the most popular votes and still lose the election. This phenomenon essentially boils down to the fact that the differing levels of influence among states is not directly proportionate to population.

Notably, there’s nothing in the Constitution that requires states to award all of their electoral votes to that state’s popular vote winner, even though that is the case in D.C. and 48 states. This is why Maine and Nebraska are able to distribute their electoral votes differently. In both cases, two electoral votes go to the candidate that wins the statewide popular vote, while the other electoral votes are distributed to candidates who win in individual congressional districts.

One viable option for reform would be for states to sign up to the National Popular Vote Interstate Compact. This compact is an agreement where participating states award all of their electoral votes to whichever presidential candidate wins the nationwide popular vote. So far, D.C. and 15 states have signed on, and together they collectively represent 196 electoral votes. However, this compact can only go into effect once the participating states collectively represent 270 electoral votes, the absolute majority in the Electoral College. 

Should enough additional states join this compact, the nationwide population vote winner would no longer be able to lose the election, which has already happened five times in history. This would also help to address the long-standing inequities within the Electoral College, by reducing the influence of less-populous, less-racial diverse states.