Yesterday, the US Supreme Court issued a unanimous ruling of some significance. To understand why, you need to look at the truly weird system that the US uses to elect its presidents. So buckle up for a trip through that maze.
The first thing to appreciate is that the president is not elected by the majority (or plurality) vote of all the people in the country. While voters in an election do cast their votes for a specific presidential candidate, what they are really doing is electing members to an abstract entity called the electoral college and it is these electoral college members who vote for the president sometime after the presidential election is held, in a process that no one pays any attention to because it is assumed that they will vote according to the results of the presidential election so there should be no surprise.
Each state is entitled to a certain number of electoral college votes based on the following formula: one vote for each member of the House of Representatives from that state (which is roughly proportional to the number of voters in that state, with a minimum of one) plus two votes (for the two senators that each state gets). Since there are a total of 435 members of the House of Representatives and 100 senators, that adds up to 535 in total. Washington DC is not a state and thus has no congressional members but for the purposes of presidential elections it is treated as one and is allocated three electoral college votes. Thus there are 538 votes in all and to become president, you need 270 of those.
Each state gets to decide how to allocate its electoral college votes. Most of them choose the winner-take-all policy where every member of the electoral college from a state is expected to vote for the presidential candidate who got the majority vote in that state. But a few states use different formulas that can split the votes.
One interesting thing is that few people have ever even heard of the actual human beings who make up the electoral college because they are viewed as mere automatons who must do the bidding of the state. But they are not automatons and have gone rogue on occasion and voted against expectations. Such people are called ‘faithless electors’. This is not a common occurrence but does happen.
Three presidential electors in Washington state, for example, voted for Colin Powell in 2016 rather than Hillary Clinton and one voted for anti-Keystone XL pipeline protester Faith Spotted Eagle. A $1,000 fine was upheld by the state Supreme Court.
In Colorado, the legal outcome was different when Micheal Baca sought to vote for John Kasich instead of Clinton.
Baca’s vote was rejected and he was removed and replaced with a substitute who voted for Clinton. Baca was referred for potential perjury prosecution, although no charges were filed. He filed suit, and ultimately won when the 10th US Circuit Court of Appeals held that while the state does have the power to appoint electors, that does not extend to the power to remove them.
Washington state Attorney General Robert Ferguson told the justices that since the creation of the Electoral College, there have only been 165 faithless electors representing less than 1% of the Electoral College votes cast for president. Of those, 71 changed their vote in 1872 and 1912 because the candidate they pledged their vote for died.
“The scattered examples that remain have been largely symbolic gestures with no chance of impacting results,” Ferguson said, adding that “over the last century, no elector for a winning presidential candidate has switched votes to the losing candidate.”
There is always the possibility that in a very close election, one or a few electoral college members may go rogue and throw the election to someone not entitled to it according to the rules in place at the time of the election. The issue that the Supreme Court ruled on yesterday was whether electoral college members had to vote for the candidates that their state rules required them to or whether they could vote for whomever they liked. This had been ambiguous since there is nothing in the constitution that requires them to follow the state dictates. Justice Elena Kagan, writing for the unanimous court, said in her opinion that states can force its electoral college members to vote according to the state’s rules and punish faithless electors.
While that takes care of that problem, there is another issue where the significance of this decision is great and that is what I want to focus on.
There is a great deal of dissatisfaction with the electoral college system because it seems so undemocratic. One of the main problems with it that is well known is that someone can become president while losing the popular votes and this has happened twice, the most recent being in 2016 when Hillary Clinton got about three million votes more than Trump, and earlier in 2000 when Al Gore got more votes that George W. Bush. This is because each campaign calculates which states they are sure to get, which states they are sure to lose, and targets just those so-called ‘swing states’ that they need to win which, coupled with the votes from the sure states, will put them over 270. Hence candidates only compete in the swing states and largely ignore the issues that concern voters in the sure-win or sure-lose states. Yesterday’s Supreme Court decision puts some teeth into this compact since faithless electors cannot mess it up by deciding that they want to vote for the person who got the majority in their own state, not the nation.
But since the electoral college is written into the constitution, getting rid of it will be hard, since that would require a constitutional amendment. But there is a clever work-around that I wrote about nearly a decade ago and is what is known as the National Popular Vote Interstate Compact. According to this, states that dislike the current electoral college system can vote to assign all their electoral college votes to whichever candidate gets the most votes nationally. Who wins that state becomes immaterial. If states with at least 270 electoral college votes agree to be part of the NPVIC, then the compact gets put into action and the winner will be the majority vote getter. Since the constitution gives each state the right to decide how to apportion its votes, choosing this formula would not require a constitutional amendment, though you can be sure it will be challenged.
Currently 15 states with a total of 196 electoral college votes have agreed to be part of the NPVIC so there is still some way what to go. But there are votes on this issue pending in another 10 states that have 120 electoral college votes. Since the current system gives an advantage to Republican-controlled states, the national Republican leadership may try to thwart such moves. But on the other hand, Republican strongholds, just like Democratic strongholds, may be fed up with being taken for granted by their respective parties and their concerns being ignored in presidential elections and some may be willing to sign on. The biggest obstacles to the change will likely be the swing states who may not want to give up on all the attention they get in presidential elections.
Thus ends another tutorial on the incredibly complicated election system in the US. Hope you enjoyed the ride!