As much as I’d like to see the Electoral College abolished, I understand it’s enshrined in the Constitution and that we’re therefore stuck with it for the foreseeable future.
But I do wonder if the processes by which it actually works can’t be updated within the limits of the Constitution. As we’ve seen the last few weeks, the process of each state actually naming electors is rife for potential corruption. Just because it didn’t happen this time doesn’t mean a future election won’t be tipped by some rogue state legislature. That can’t be what the founders intended.
So … can we retain the system where the winner of the popular vote in Pennsylvania gets 20 electoral votes, but make it more automatic? Skip the state legislatures and electors and just give the winner 20 points?
Well, the Constitution doesn’t say much at all about how the Electors should be appointed. It says:
So you can pass a federal law addressing some of it, and the Electoral Count Act is the current operative law.
But anything that attempts to move control over the process from the State to the Federal government would require an amendment.
ETA: I meant to add that in many states it is pretty much automatic. Michigan for example has no role for the state legislature to play. They can attempt to appoint an alternate slate of electors but the one that is given “automatically” based on the popular vote is the one that will count. Any attempt to deviate from that would almost certainly be invalidated by the courts (although thankfully we haven’t had to test that yet).
I don’t think it would be practical. The same states that would demand the Electoral College stay are the same ones that would like to retain the option of “going rogue.” You could pass state laws that mandate that the states electors HAVE TO, NO EXCEPTIONS go to the winner of the popular vote, but then you just get more shenanigans like they tried this year. The Federal Government has limited power over state elections (very limited). It would be far easier to scrap the whole thing and go to straight popular vote.
I’m sure you could kludge together some sort of system, but it would be just as bad as what we have now. Although if the population of the South and Texas keep growing the way they have been, going popular vote may be the best choice for everybody, even if we add DC and Puerto Rico as states.
Does the Electoral Count Act actually mandate that electors be awarded based on the winner of the state’s popular vote? I’ve just skimmed the Wikipedia page, but I can’t find anything confirming this.
If not, doesn’t that mean any state can pretty much award its electors based on any criteria they determine? And could new federal legislation at least mandate that the only criterion states may consider is popular vote?
Likely true, but while those states make amending the Constitution nearly impossible, they can’t necessarily block simple laws from being passed.
My understanding is that all the states other than Maine and Nebraska do have such laws. The problem that has come up this year is not with the allocation of electors, but with who gets to make the final determination on what the results of the popular vote (within each state) are.
Regardless of whether the system is the electoral college by state popular vote, by district like Maine and Nebraska, or a national popular vote, someone is going to be in charge of counting the votes and making the final tally official. Making sure those people are in fact counting and certifying the votes fairly is a completely different issue than deciding which votes they are assigned to count.
No. What it says (and I’m not a lawyer, but I’ve read quite a bit about it) is that if electors are appointed based on state law in place on election day, which for every state is that they go to the popular vote winner, then those electors have precedence over electors appointed in any other method.
Yes, states can appoint electors any way they want. But they key point is that the method has to be defined prior to election day. So you can’t say “popular vote” and then switch to “legislative appointment” if you lose the popular vote. At least not in compliance with the Constitution or the Electoral Count Act.
What the ECA could be updated to do (and I believe this was actually floated prior to Election Day 2020) is to move the safe harbor provisions closer to when the actual Electoral College votes. This would mean that shenanigans like delaying certification until after the safe harbor day in order to allow legislatively-appointed electors to have even-footing under the law would be more difficult.
Unfortunately what we really need is much more strongly- and clearly-worded Constitutional language that explicitly mandates that popular vote is the only valid method for appointing electors. And that requires an amendment.
But even then, as @FlikTheBlue points out, the method of counting the votes and determining who wins will still be (and, IMO, should be) based on state law. Moving Federal elections to be under Federal jurisdiction is possible, but would be a much bigger change to the Constitution. I would be interested in debating the pros and cons of that, if anyone else is interested.
The Constitution already allows Congress to make or alter regulations for its own elections, which would de facto affect other concurrent elections unless a state took the rather unwieldy (and politically impractical, since it would inconvenience all voters, not just Those People The Ruling Party Really Doesn’t Think Should Get To Vote Anyhow[tm]) step of breaking them out onto a separate ballot.
That doesn’t really affect the electoral college part of the process, however.
This was my thought, actually. You would almost certainly need separate election days for Federal elections vs. state and local elections.
This already happens to some extent. Municipal elections, at least in my area, are not held at the same time as state and federal elections.
I had forgotten about the provisions regarding Congressional elections - that part is pretty easy but is also much less complex than the Presidential system.
I could imagine a pretty simple amendment that retains the “point system” that the EC produces but removes the college itself and just says that each state’s electoral votes are assigned based on the popular vote in that state. It would certainly clean up some ambiguity that has never been ruled on regarding legislatively-appointed electors.
Now that I think about it, though, wouldn’t that completely undermine the National Popular Vote movement? Not that that is necessarily a bad thing, since I doubt it would withstand real pressure anyway.
But Florida (just to randomly pick a state that I can envision doing something so nutty) could, for instance, pass a law (or amend its constitution) this year that says “In all future presidential elections we’re awarding our electors to the Republican candidate, regardless of the popular vote.” And it would be valid for 2024?
Yeah, probably. But no state legislature would try it, I don’t believe. It would require a very wide-spread increase in distrust of our electoral process. And no major party would ever intentionally try to make voters believe that our elections were unfair…
And on some quick reading there is perhaps a Constitutional question regarding whether a state legislature can remove the right of selecting electors through a popular vote without at least being subject to analysis under Equal Protection. Some previous rulings have indicated that by giving voters the ability to directly select electors a “fundamental right” has been created, and any modification to that right is subject to court oversight. As an example, state laws requiring certain forms of ID have been challenged on other Constitutional bases.
So a case would almost certainly get to SCOTUS prior to the election asking whether voters were unfairly having their rights removed in a way that ran afoul of Equal Protection under the law. I believe the level of scrutiny would be high, meaning that the state attempting to do this would have to show a compelling interest in removing voter rights in this way (i.e. evidence of massive fraud or something like that). It would be interesting, no doubt. Many voter ID laws have failed because the state was unable to show that fraud was a significant enough problem to warrant the restrictions imposed, although that stance has softened as the courts have changed in composition.
One danger that I see from this otherwise reasonable idea is that there would be an increased likeliness of College votes being referred to a Contingent Election.
Personally I’d do away with the whole thing and have run-offs or Alternative Vote.
Why do you say that? I’m not following why it would be more likely that a state would fail to submit electors if the Constitution explicitly required it to be based on votes?
Oh no, I’m not saying that - I’m saying there’s an increased chance (perhaps marginal still) of College votes going down to 269-269 or somesuch, and the College failing to pick a winner.
The thing that is NOT in the Constitution but was merely agreed upon by Congress at a later point was the capping of representatives in the House of Representatives.
As the population of the US soared, the number of individual citizens represented by each Representative soared likewise. If this measure had not been enacted, we’d have a really huge House of Representatives. One powerful side effect of that would be that the more populous states would have many more electoral votes in the Electoral College, whereas the thinly populated ones wouldn’t get many more electors than they already have.
This seems to me to be an area where a compromise could be reached. It wouldn’t require an amendment to the Constitution. Just moving the lid on how many folks can occupy the House of Representatives.
I believe that laws in all 50 states already mandate the only criterion the states may consider for choosing electors is popular vote.
So there’s no need for a federal law which is a good thing because it would probably be unconstitutional.
*except Maine and Nebraska where it’s still essentially the popular vote winner getting the EVs except some EVs are awarded to the popular vote winner of a congressional district rather than the whole state.
Why would there be any increased chance of that? You’d still have almost the exact system we have now: each state’s popular vote winner gets all the EVs (except Maine and Nebraska where it’s still EVs going to popular vote winners but of the state at-large AND congressional districts instead of just the state).