Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Gabriel Maliha
Gabriel Maliha is a senior at the University of Pennsylvania studying criminology.
The November 8th presidential election touched off an intense debate about the continued propriety of maintaining the Electoral College as the means of electing presidents. This was not a new controversy. There have been four other times in our history that a candidate won the popular vote and lost the election: Andrew Jackson in 1824, Samuel Tilden in 1876, Grover Cleveland in 1888 and Al Gore in 2000. However, the margin of popular vote loss by President Trump, at 2.1%, seems to have strengthened the calls for adopting a direct popular vote. 
Article II, Section 1 of the U.S. Constitution establishes the Electoral College, a process for selecting presidential electors, who in turn choose the president and vice president of the United States. Each state is assigned a number of electors equal to its delegation to the House of Representatives and Senate combined. The current number of electors is 538, of which a majority of at least 270 is required to elect a president.  The Constitution empowers the various state legislatures to determine the manner of selecting their electors. Throughout the 18th and 19th century, many state legislatures appointed their representatives to the Electoral College without a direct popular election of the electors. Today, all 50 states and the District of Columbia choose their electors by popular vote. 
The manner of selecting the president was one of the most debated constitutional provisions designed by the Framers. Many ideas were considered, including congressional appointment, direct popular vote, a gubernatorial vote, and even a lottery. The compromise of establishing an Electoral College was seen as preserving state rights while also empowering Congress to decide elections in which no candidate obtains a majority of electors. The provision also enabled Congress to count the vote and decide on disputed electors. The House decided the contingent elections of 1801 and 1825 and practically decided the election of 1877.
The Constitution is silent on whether electors are required to vote for the winner of the popular vote in their state. But since state legislatures have the ultimate constitutional power over the manner of appointing electors, the United States Supreme Court held that electors are not entirely unencumbered in their choices. Many states require their electors to vote for the winner of the popular vote using a variety of mechanisms including pledges, oaths, and even the ability to disqualify and replace electors who do not vote in accordance with state law. Political parties extract similar pledges, but more importantly field lists of electors who are long-time loyal members of the party cadre. Throughout the history of the United States, 99 percent of electors have voted as pledged and renegade electors have never decided the outcome of an election. 
Proponents of maintaining the Electoral College point to its original intention of protecting states’ rights. The Electoral College was used to assure small states that joining the budding union would not place them in a subservient role to larger states. They also maintain that, even today, the Electoral College encourages candidates to address the concerns of small states, especially in closely fought contests. It also aligns with the overarching concern of the Framers to prevent majorities from trampling minority rights. The U.S. Constitution assigns two senators to each state regardless of size or population. It recognizes geography as well. For example, Alaska has a small population but a vast terrain and abundant natural resources, and Hawaii has a small population but important strategic and touristic importance. Of course, the Bill of Rights grants freedom of speech, religion, assembly and other rights to both majorities and minorities. In fact, amending any of these provisions to ensure the will of a simple majority requires the concurrence of 3/4 of the states (without regard to population). Thus, the concern of small states is that doing away with the Electoral College to establish an absolute popular democracy may be the opening salvo towards majoritarian rule.
Opponents of the Electoral College point out that the scheme may have had some validity at some point in time, but it is no longer necessary. In the 18th, 19th, and early 20th centuries, fewer voters were educated, and media reach was quite limited. Ordinary citizens had to rely on luminaries and prominent members of society (potential electors) to make the choice for them. That is obviously not the case today, as people can learn quite a bit about candidates from the comfort of their own homes by accessing cable, internet, radio, and print publications. Also, with modern transportation, candidates travel extensively throughout the country to deliver speeches, town hall meetings, and rallies. Further, a direct popular election preserves a long-held one person, one vote principle, at least on the presidential level.
Abolishing the Electoral College would require a constitutional amendment which is practically out of reach, as it is very unlikely that the bulk of small states will agree to diminish their own say in the election. Eleven states and the District of Columbia have come to an agreement - The National Popular Vote Interstate Compact - to award their electors to the winner of the popular vote nationwide. The agreement takes effect when states representing 270 electoral votes decide to join.  California, New York, and Illinois are in the compact, and the overall group represents 165 electoral votes, but would be extremely unlikely to reach 270 without large states like Texas and Florida joining. There are also technical issues that make the compact very unstable. The number of electors assigned to each state may change with each census, and the party controlling the legislature and the governorship after each new election may or may not want to continue in the pact. It is also unclear if this scheme whose declared aim is to bypass an unobtainable constitutional amendment will pass muster with the Supreme Court. It is quite likely that we will be debating the Electoral College for a long time to come.
US House of Representatives: History, Art, Archives. “Electoral College Fast Facts.” http://history.house.gov/institution/Electoral-College/Electoral-College/
 “What is the Electoral College?” National Archives and Records Administration (Dec. 19, 2016).
US House of Representatives: History, Art, Archives. “Electoral College & Indecisive Elections.” http://history.house.gov/Institution/Origins-Development/Electoral-College/
 “About the Electors.” National Archives and Records Administration (Dec. 19, 2016.
 Editorial Board “Time to End the Electoral College.” The New York Times. (Dec. 19, 2016).
Photo Credit: Sam Howzit
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