The Electoral College Makes Authoritarian Rule Much More Likely
Why the GOP has no incentive to win your vote
One of the strangest and most dangerous features of the U.S. Constitutional system is the Electoral College. This bizarre and antiquated body is only called into existence once every four years during the presidential election cycle was not carefully crafted by the framers of the Constitution.
It was more of an afterthought designed to soothe the fears white, wealthy merchants and plantation owners had of mob rule based on a crude understanding of Greek and Roman history.
While the Constitution describes the Electoral College in detail, the phrase “Electoral College” does not appear in the main text of the document. It is a colloquial phrase describing the cumbersome presidential election process.
Fortunately, the Electoral College has been irrelevant 91% of the time in presidential elections, with the winner of the popular vote also winning the Electoral College 54 of 59 times.
Unfortunately, in the current environment, the Electoral College creates the easiest path for an authoritarian to be legally elected as President, even if most people vote against them.
The framers thought the Electoral College would be a way to stop a populist demagogue who wanted to accrue power and abuse the constitutional process from getting elected. It was supposed to prevent the election of someone like Donald Trump. Instead, the Electoral College was the only way Trump could’ve found himself leading the United States, and it poses the most significant risk of returning him to that seat of power.
The two primary issues with the Electoral College are that it is poorly designed to meet the goal of its creation, and the goal of its creation is the wrong goal for safeguarding American liberties. Both issues are hamstring efforts to keep an unpopular and dangerous Donald Trump from gaining government control.
Republicans Have Stopped Trying to Win the Popular Vote
Since 1992, the Republican presidential candidate has won the popular vote only once. That was George W. Bush in 2004. Bush lost the popular vote but won the Electoral College in one of the most contentious and controversial elections in the post-Civil War era in 2000. Then, on the strength of the patriotic fever dream after 9/11, he defeated Democrat John Kerry in both the popular vote and the Electoral College.
That means that in the past eight election cycles, or 32 years, the majority of American voters did not want a Republican to be president.
Trump is not popular. He lost the popular vote to Hillary Clinton in 2016 by 3 million votes. He lost the popular vote to Joe Bidden in 2020 by 7 million. He is not expected to win the popular vote in 2024 against Kamala Harris. Yet he could still become president again because of the Electoral College.
Compared to 2016 and 2020, Trump is barely campaigning. He’s holding fewer events, and the events he is holding are more likely to be close to Florida, his home. He has almost no field offices in key states, and his running mate, the even more unpopular JD Vance, seems to be the campaign’s primary campaigner.
When John McCain lost to Barak Obama in 2008, and Mitt Romney lost to Obama in 2012, several Republican party insiders, including Marco Rubio, came up with plans to make the Republican party more acceptable to women, younger voters, and Black and Latino voters, all groups the party had historically struggled with.
And then Donald Trump captured the Republican party. Those efforts went by the wayside, and Republicans stopped trying to appeal to more voters.
In 2016, it seemed that Trump was not expecting to win the election but instead hoping to pivot a contentious loss against Hillary Clinton into a media company windfall.
But he did win.
Trump’s presidency was a disaster. He was corrupt and incompetent, and the rest of the country relied on the “adults” in the room to keep him from his worst impulses.
In 2020, Trump became the first president in U.S. history not to have a peaceful transfer of power. His surrogates stormed the Capitol and tried to alter the counting of the Electoral College ballots.
Before that, Trump’s team schemed to create alternate slates of electors and to cajole election officials to change votes to give Trump enough electors to win the Electoral College. He cared nothing for the significant popular vote drubbing he had suffered.
The Trump team's tactics seemed to be inspired by the chicanery of the controversial 1876 election, in which Republican Rutherford B. Hayes won the Electoral College but not the popular vote. The election was plagued with charges of corruption.
This year, Trump is once again talking about rigged elections and election interference, and his campaign strategy is focused on getting control of election officials in key swing states such as Georgia.
Trump is not trying to persuade new voters. The Republican party remains deeply committed to deeply unpopular positions on abortion and voting rights, despite losing elections on those issues repeatedly since 2016.
Why does this matter? It matters because Trump is the kind of corrupt, vengeful, and incompetent person that even the founders knew should be nowhere near the presidency. It matters because Trump is an avowed enemy of democracy, and he intends to take power (and does anyone believe he will give it up voluntarily again?) through one of the most undemocratic features of our Constitutional system—the Electoral College.
The Electoral College Structure
The Electoral College was created by Article II of the Constitution and altered by the 12th Amendment.
Under the current system, federal elections are held on the first Tuesday of November in even years. On this day, voters choose who will be their representatives in the House, who will be their senators in the Senate, and who will vote on their behalf for the president and vice president.
When Americans cast their ballots in presidential elections, they are actually choosing the electors who will be part of the Electoral College. Those electors will meet in each state on the first Tuesday after the second Wednesday of December to cast votes for president and vice president. (The first Tuesday after the second Wednesday in December always falls between December 14 and 20.)
Those ballots are then placed in a sealed envelope and sent to Congress to finalize the election in January.
The number of electors for each state is determined by adding the number of senators (every state has two of those) to the number of representatives in the House (each state has at least one of those, the rest being determined by the state's population).
The size of the House of Representatives is capped at 435 by statute since 1913. Since there are 50 states, and each state gets two senators, the total number of electors is 535. To win the presidency and vice presidency in the Electoral College, the winner must receive a majority of the votes, which currently means getting to 270 electoral votes. If nobody wins a majority, the presidency is decided by the House of Representatives, and the Senate decides the vice presidency.
Under the Constitution, considerable power is given to the state legislatures to determine how electors are chosen. One of the few constitutional requirements for being a presidential elector is that you cannot be a federal office holder of any kind.
In the modern era, each presidential candidate prepares slates of electors in each state who will back them and submits a slate to election officials in each state where the candidate will appear on the ballot. Electors are almost always party stalwarts, and being chosen as an elector is considered an honor.
In 48 states, the popular vote winner in that state receives all of that state’s electoral votes. This is called a winner-take-all system. However, this system is not mandated by the Constitution. Nebraska and Maine distribute their electoral votes differently.
In Nebraska and Maine, electoral votes are awarded based on the winner of the popular vote in each congressional district, with two at-large electors chosen based on the winner of the popular vote in the state.
In every state, electors pledge to vote for the candidate who won the popular vote in the state or congressional district. These are known as bound electors.
Since typically only two candidates ever receive any electoral votes, and state electors are bound by the results of the popular vote counts in their states, it is usually easy to know who has won an election for president within at least a few days of the November election, even though the Electoral College will not meet until some six weeks later.
Why Create the Electoral College?
The framers of the Constitution were some of the most elite men in the country. The one thing they were most afraid of, more than the tyranny of a king, was an unruly mob. The French revolution that would erupt a year after the ratification of the Constitution would be a confirmation of their worst fears.
The framers were scared of the men they had commanded on the field during the war; they were afraid of propertyless peasants who might want to seize the wealth the framers and their class had hoarded, especially if those propertyless peasants decided to incite a slave revolt to get their way.
When you read the writings of Washington, Jefferson, Madison, and Hamilton, you constantly come across references to the disasters of mob rule that brought down ancient Greece and Rome. These worries may have largely been ahistorical, but for the framers of the U.S. government, ancient Greece and Rome were cautionary tales of freedom and liberty run amok.
This is why senators were initially appointed by state legislatures, not directly elected (this would be changed by the 17th Amendment in 1913), and why they created the buffer of the Electoral College between the people and the president's election.
According to Alexander Hamilton:
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations—Federalist No. 68
The plan was for electors to be independent of the candidates and the voters. These electors would keep any demagogues who might appeal to the landless masses to rise against their betters out of the presidency.
The process the framers most clearly had in mind was the one used by the state legislatures to select delegates to the recent Constitutional Convention. In the minds of Hamilton and Madison, at least, the people who would elect the president and vice president would be people much like themselves, members of the political and economic elite of the various states.
Part of the patriot myth that every American has absorbed is that the founders were all brilliant men, more like Old Testament prophets than the politicians of our day. And while many of these men were remarkable, they were mere mortals, and most were the victims of incredible hubris.
The framers failed to see that political parties would rise almost immediately after the Constitution was ratified. (The subject of a future post.) Those political parties would alter much of the way the government would operate in practice.
The Electoral College itself is remarkably little remarked upon in Madison’s account of the Constitutional Convention and in the numerous essays written primarily by Madison and Hamilton campaigning for the new Constitution to be ratified.
It appears to have almost been an afterthought. It was a simple way to further insulate the new federal government from the plebians. Hamilton thought it was an incredible innovation, remarking in a most Hamilton fashion:
I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent.
However, it was deeply flawed from the beginning.
Performance Review of the Electoral College
Alexander Hamilton, James Madison, and John Jay wrote a series of pseudonymously published essays arguing for the ratification of the Constitution that we now collectively call The Federalist or The Federalist Papers.
As noted above, the most frequent fear expressed by these men in these essays was the fear of mob rule. A second common theme was a caution against what they called factions, meaning political parties.
This caution comes up again and again, and just as often the essayists explain how the system works against the formation of factions or how they are confident factions will not form here in America unlike they had in England.
The moment George Washington was elected president, political parties began to form. While Washington stood aloof from the parties and used Hamilton, and to a lesser extent John Adams, as his surrogates in party issues, everyone else in the new government had organized into two competing political factions.
The consequences of failing to anticipate the formation of political parties adequately first appeared in the Electoral College in the election of 1800.
At that time, the winner of the Electoral College became president, and the runner-up became vice president. In 1800 Thomas Jefferson and Aaron Burr tied in the Electoral College, though Jefferson won the popular vote. Under the Constitution, the top five candidates were then to have a contingent election in the House of Representatives. There were only three candidates, incumbent president John Adams being the third. However, Burr and Jefferson were of the same political party, the Democratic-Republicans, while Adams was a Federalist. The Democratic-Republicans had a large majority in Congress, so Adams was never a viable threat to win re-election.
It was only through the influence (or meddling in Burr’s view) of Alexander Hamilton that the logjam between Burr and Jefferson was broken in Jefferson’s favor, with Burr getting the consolation prize of vice president.
The 12th Amendment was passed in 1804, ensuring that the concept of presidential running mates was enshrined in the constitutional presidential election process.
Hardly the “excellent” system that Hamilton had boasted about sixteen years earlier.
However, the advent of political parties did much more than require some fine-tuning of the election system. It changed the incentives of the participants. Parties wanted to ensure that there were no rogue electors.
They did not want an elector to vote for whoever they thought was the best candidate; they wanted a loyalist who would vote for the party’s candidate no matter what. This is when the modern Electoral College system begins to take shape, with bound electors, party stalwarts being chosen as electors, and state legislatures doing everything they could to keep their party in power.
This is the same milieu out of which gerrymandering would come.
In 1824, the Electoral College again failed to produce a winner, and the House elected John Quincy Adams to his lone term despite him not even winning a plurality of the popular vote.
Andrew Jackson would be the big loser of that election, and it could be argued that he was the kind of populist the framers had hoped the Electoral College would shut out of the presidency. But at the end of the day, it was not the Electoral College that handed Jackson his loss; it was the elites of his own party colluding with the Adams’s Whig party.
In 1828, Andrew Jackson trounced John Quincy Adams in both the popular vote and the Electoral College.
In 1876, Rutherford B. Hayes won the Electoral College but lost the popular vote in a bizarre election full of alternate slates of electors, voter suppression, violence, and charges of corruption and election inference. (Look for a post in the coming days about how the election of 1876 influenced Trump’s post-election strategy in 2020 and his campaign strategy in 2024.)
Political parties are not incentivized to recruit the noblest candidates or electors. The incentive is to find the candidate most likely to win. Winning is the key to power, not only in policy but also in personnel. By 1876, it was already clear that the Electoral College was not going to stop a corrupt or disreputable candidate from becoming president, so long as they had the support of their party.
All the Electoral College does is allow parties to find ways to win without the support of most of the citizens of the United States, if necessary.
Candidates also won the presidency but lost the popular vote in 1888 (Benjamin Harrison), 2000 (George W. Bush), and 2016 (Donald J. Trump).
The 2000 election was marred by considerable controversy, especially around election procedures in Florida. George W. Bush was the only president to come into office and win a second term after losing the popular vote the first time. In 2004, he won both the popular vote and the Electoral College.
Why the Electoral College is Undemocratic and Favors Authoritarian Leaning Candidates
While the U.S. was not a democracy in any meaningful way in 1788, it has since become significantly more democratic.
The people directly elect senators instead of the state legislatures appointing them. Women can now vote and hold office. Black people now not only have the right to vote but are also able to generally exercise that right without fear of violence. People of all races are allowed to vote and run for office. Poor people are allowed to vote and cannot be turned away for being unable to pay a poll tax.
However, the Electoral College remains an undemocratic barrier between the people and the leader of our country.
The problems start with the fact that in closely polarized times, like 1876, 2016, and today, it’s quite possible for a candidate to lose the popular vote by as many as 3 million votes or more and still win via the Electoral College.
The Electoral College system magnifies many of the other undemocratic features remaining in our Constitutional system. The U.S. Senate was designed to represent the interests of the states as political entities, not the interests of the people of the states. This is why senators were not directly elected until the early 20th century.
Even with the direct election of senators, the idea that Wyoming has as much voting representation in one body of Congress as Texas is undemocratic. When you consider things like the Senate filibuster rule, the degree to which the institution is undemocratic is increased further.
The House of Representatives is the most democratic institution in the constitutional system but suffers from undemocratic features. Its size, the same for more than 100 years, means that sparsely populated small states are overrepresented, while more populated areas are underrepresented. (A future post will address the size of the House.)
Having the Electoral College be based on the number of senators and representatives a state has compounds all of these issues with Congress's structure.
A candidate, say Donald Trump, does not need to worry about appealing to the majority of the country to be elected, he only needs the right states to create an Electoral College victory. It’s already clear that he cannot win a popular vote contest that is conducted with any degree of fairness and integrity. His only road to power is through the Electoral College, and if that means he has to sow confusion, create fraudulent alternate slates of electors, and unleash violent mobs to get his way, he will do it.
He is the kind of man Hamilton and Madison feared most when drafting and defending the Constitution.
What Can We Do About the Electoral College?
This all sounds heavy and disheartening, but there is plenty of room for hope. First, remember that Trump is not popular. It’s a standard trick for authoritarians to claim wider support than they have. Losing the popular vote matters because it affects the political capital a party and leader have.
Second, remember Trump lost the Electoral College in 2020. Even in the battleground states, he is at his ceiling in terms of support. Harris is still growing her base and is fighting and campaigning vigorously. Trump can be beaten.
In the short term, voting is crucial. Not just in this election but in every election. Parties only care about voters. Voters decide if politicians keep their jobs. Voting is influence. If you want the Electoral College to be disbanded or weakened, vote in every election for pro-democracy candidates.
In the longer term, there are five primary strategies that can make our presidential election system more democratic and responsive to the will of the people.
Constitutional Amendment
The cleanest, clearest, and hardest way to build a better presidential election system would be to pass a Constitutional amendment disbanding the Electoral College and creating a popular vote for the president and vice president.
While amending the Constitution is difficult and happens rarely, it has been done twenty-seven times before and might be easier than you think.
There is widespread support for using the popular vote to elect the president. Most Democrats, most voters with no party affiliation, most third-party voters, and even significant numbers of Republicans favor a popular vote system.
If we don’t start fighting for it, we will never see any change.
Make the House of Representatives Bigger
The size of the House of Representatives is not set by the Constitution but rather by statute—and it’s incredibly small compared to similar bodies in other democracies.
Right now, the average Member of Parliament in the United Kingdom represents about 92,000 people. There are 650 seats in the House of Commons.
The average member of the House of Representatives represents about 700,000. The UK has a population of 66.7 million, compared to 333.3 million in the U.S.
The British Parliament is considerably more democratic than our House. Increasing the size of the House will give more electors to states with larger populations, such as California, New York, Texas, and Florida. This in turn makes the Electoral College more democratic and harder to game.
Vote on Congressional District Basis
The winner-take-all system used by 48 states means parts of the state that lean more Democratic or more Republican are not accounted for in the parceling of electors. If every state used the same system as Nebraska and Maine, not only would the Electoral College more accurately reflect the popular vote, but it would force candidates to campaign in more places than just the swing states.
In this election, you have seen the Harris-Walz campaign come to Nebraska, a place they would not bother with if not for the possibility of picking up one of Nebraska’s electoral votes.
State legislatures decide the system for parceling electors. You can get busy in your state to pressure politicians to move away from a winner-take-all system.
Multi-State Popular Vote Compact
There is a movement to get states to sign onto the National Popular Vote Multi-State Compact, an agreement between states to parcel their state’s electors based on the winner of the national popular vote. Already, seventeen states and the District of Columbia have signed on. These jurisdictions account for 209 electoral votes.
The compact will not become active until jurisdictions compromising at least 270 electoral votes sign on.
Significant questions remain about whether the Supreme Court would find such a compact constitutional. However, any progress towards a popular vote system, including raising awareness, will help us move closer to eliminating the Electoral College.
Vote, Voting, and Voting Rights
It’s not sexy, but voting and volunteering for local campaigns in your state matter. The more people vote, the harder it is to suppress votes.
The more active people are in local elections, the more likely they are to pay attention to and influence actions of the state legislature, such as gerrymandering, voter suppression, interstate popular vote compacts, and constitutional amendments.
We have made enormous progress towards a more just and democratic society since the first presidential election in 1788. But we can do more.
The next step towards a more democratic future starts with you and this election.
Books to Read
The Federalist Papers, James Madison, Alexander Hamilton, John Jay—These are what the Supreme Court justices who claim to support an originalist approach to interpreting the Constitution refer to the most when looking to justify a position. These persuasive essays give you an excellent view of what Madison and Hamilton understood the strengths and weaknesses of the Constitution to be.
Unrig: How to Fix Our Broken Democracy, Daniel G. Newman with art by George O’Connor—A non-fiction graphic novel exploring ways to untangle big business from government.
Notes
https://en.wikipedia.org/wiki/2020_United_States_presidential_election
https://rollcall.com/2012/11/07/marco-rubio-gop-needs-to-broaden-appeal-to-minorities/
https://www.vanityfair.com/news/2016/06/donald-trump-tv-network
https://www.washingtonpost.com/politics/2024/08/29/trump-kemp-georgia-election-board/
https://www.archives.gov/founding-docs/constitution-transcript#2-1
https://www.archives.gov/electoral-college/about
https://www.archives.gov/electoral-college/allocation
The Electoral College should have been eliminated years ago. Just the thought of it makes my blood boil.