# Can the Electoral College be updated constitutionally? **URL:** \ **Category:** Politics & Elections\ **Created:** [November 24, 2020, 3:13pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355 "2020-11-24T15:13:11Z")\ **Posts on this page:** 18\ **Page:** 2
**Author:** ![Malden\_Capell](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/malden_capell/32/5274_2.png) [@Malden\_Capell](https://boards.straightdope.com/u/Malden_Capell)\ **Post date:** [November 25, 2020, 9:28am UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/21 "2020-11-25T09:28:07Z")
I think I misunderstood your post then. I thought you meant every State adopting the Maine/Nevada system. Never mind, carry on! ---
**Author:** ![Akaj](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/akaj/32/145_2.png) [@Akaj](https://boards.straightdope.com/u/Akaj)\ **Post date:** [November 25, 2020, 2:38pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/22 "2020-11-25T14:38:46Z")
> [@I\_Love\_Me\_Vol.I](#): > > 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. Right, but – as I was wondering back in post 8 or so – just because they have those laws _now_ doesn’t mean one couldn’t go rogue and legislate a different criterion. Sure that’s hard to imagine, but we’ve seen a lot of “hard to imagine” stuff transpire the last four years. ---
**Author:** ![E-DUB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/e-dub/32/403_2.png) [@E-DUB](https://boards.straightdope.com/u/E-DUB)\ **Post date:** [November 25, 2020, 3:26pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/23 "2020-11-25T15:26:15Z")
That one has occurred to me as well. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [November 25, 2020, 3:56pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/24 "2020-11-25T15:56:33Z")
> [@Malden\_Capell](#): > > I thought you meant every State adopting the Maine/Nevada system. Ah, no. I do support a similar model by which each state’s EV are apportioned based on the percentage of the vote a candidate gets (not based on district lines), with the state-wide winner getting the extra 2. I believe that would make the EV count a bit more in line with the national popular vote, while also encouraging Presidential campaigns to at least consider the benefits of achieving a decent share of the vote in all states. But that would have to be an amendment, because there is very little incentive for individual states to do it alone, particularly larger ones. And I do agree it slightly increases the chance of someone getting less than 270, particularly if it hastens the ability of third parties to join in (since they may only need a few percent to get an EV in larger states). ---
**Author:** ![AHunter3](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ahunter3/32/368_2.png) [@AHunter3](https://boards.straightdope.com/u/AHunter3)\ **Post date:** [November 25, 2020, 4:17pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/25 "2020-11-25T16:17:58Z")
Given all the mention of Maine/Nevada systems, I think I should clear up some things… a) NEBRASKA, not Nevada. It’s Nebraska that also allocates some of their EVs to the winner of individual Congressional districts. Biden got one. (And Trump got one in Maine). b) Maine is _also_ different in that it does ranked choice voting now. This means it can’t do a “Florida in 2000” thing where a minor third party candidate siphons votes away. Whoever gets the fewest votes (let’s say it’s Howie Hawkins, Green Party candidate) is discarded from consideration and the people who picked him as their _first choice_ are switched to their _second_ choice (probably Biden). If that doesn’t bring anyone over 50% the process continues until someone gets a true majority. So the next fewest votes went to Jo Jorgensen, maybe, so Jo gets discarded and folks who voted for Jorgensen are switched to _their_ second choice (often Trump). So Maine has a system now that isn’t like Nebraska or anyone else’s. It benefits third parties because folks are less afraid to vote for them (no more “I’d be throwing my vote away”); and it benefits the major parties because it gets rid of the spoiler effect (no more “voting for that third party candidate is effectively voting for The Enemy!”). ---
**Author:** ![Malden\_Capell](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/malden_capell/32/5274_2.png) [@Malden\_Capell](https://boards.straightdope.com/u/Malden_Capell)\ **Post date:** [November 25, 2020, 4:30pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/26 "2020-11-25T16:30:42Z")
Nebraska! My bad. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [November 25, 2020, 4:32pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/27 "2020-11-25T16:32:27Z")
> [@AHunter3](#): > > 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. But even there, you’ll have other considerations at work. Members of the House leadership (on both sides) will look at the census numbers and map and _reasonably think first in terms of House majorities and not electoral votes_. Especially if they’ve got a good idea from their population distribution map and the precinct vote counts of who’d get the extra seats, and don’t like what they see (e.g. in many of the expanded large states that is likely to mean more presumed-leaning-R rural and presumed-swing suburban districts because the Dem voters are already densely concentrated in safe-D urban areas). And of course as this is a _law_, not a Rule of the House, the _Senate_ would get to pitch in, and the 31 states above the mean of EVs/population may not be eager to significantly bolster up the 19 below. ([Wikipedia Reference](https://en.wikipedia.org/wiki/List_of_states_and_territories_of_the_United_States_by_population#State_rankings)) ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 25, 2020, 4:38pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/28 "2020-11-25T16:38:56Z")
> [@Akaj](#): > > > [@Jas09](#): > > > > > [@Akaj](#): > > > > > > 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. > > > > 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. > > > > > [@](#): > > > > > > 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? > > > > 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. > > 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? No, I don’t think they could. It would violate other parts of the constitution securing the right to vote, equal protection, etc. it would’ve effectively disenfranchise millions of people in the presidential election._emphasized text_ ---
**Author:** ![Bookkeeper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bookkeeper/32/281_2.png) [@Bookkeeper](https://boards.straightdope.com/u/Bookkeeper)\ **Post date:** [November 25, 2020, 5:14pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/29 "2020-11-25T17:14:38Z")
While it is possible that a state legislature could change state law to allow direct appointment of Electors (possibly also requiring amendment of the state constitution), this would appear to impose a severe penalty under the 14th Amendment: > **Section 2.** Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. It seems clear that removing the popular vote for Electors would essentially reduce the state’s House Representatives (and related Electoral College votes) to the minimum 1. Possibly acceptable for Idaho, but not for Florida. ---
**Author:** ![Akaj](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/akaj/32/145_2.png) [@Akaj](https://boards.straightdope.com/u/Akaj)\ **Post date:** [November 25, 2020, 5:34pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/30 "2020-11-25T17:34:00Z")
> [@Bookkeeper](#): > > It seems clear that removing the popular vote for Electors would essentially reduce the state’s House Representatives (and related Electoral College votes) to the minimum 1. Possibly acceptable for Idaho, but not for Florida. If things get crazy enough that a state tries to ditch counting the popular vote at all, who’s going to enforce this triviality\* and actually bar that state’s reps from Congress? \*Not what I’d say – what _they’d_ say. ---
**Author:** ![I\_Love\_Me\_Vol.I](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/i_love_me_vol.i/32/521_2.png) [@I\_Love\_Me\_Vol.I](https://boards.straightdope.com/u/I_Love_Me_Vol.I)\ **Post date:** [November 25, 2020, 8:39pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/31 "2020-11-25T20:39:14Z")
> [@Acsenray](#): > > No, I don’t think they could. It would violate other parts of the constitution securing the right to vote, equal protection, etc. it would’ve effectively disenfranchise millions of people in the presidential election. _emphasized text_ I don’t know… as long as the state legislature actually held a rubber-stamp vote for the GOP candidate it’d be kosher wouldn’t it? Because we already do not vote directly for president (we vote for EC instead) so I’m not sure that voting for a state legislator (who then votes for president) is very different. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 25, 2020, 8:44pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/32 "2020-11-25T20:44:00Z")
> [@I\_Love\_Me\_Vol.I](#): > > I don’t know… as long as the state legislature actually held a useless rubber-stamp vote for the GOP candidate it’d be kosher wouldn’t it? > > Because we already do not vote directly for president (we vote for EC instead) so I’m not sure that voting for a state legislator (who then votes for president) is very different. No, I don’t think that’s a strong argument at all. Especially the example given above, which would specifically award all electoral votes to _the Republican_ regardless of any vote. That violates all kinds of standards for republican democracy and democratic republicanism. That kind of blatant one-party state just wouldn’t be constitutional. ---
**Author:** ![octopus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/octopus/32/3716_2.png) [@octopus](https://boards.straightdope.com/u/octopus)\ **Post date:** [November 25, 2020, 9:10pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/33 "2020-11-25T21:10:46Z")
That is actually a sound idea. ---
**Author:** ![I\_Love\_Me\_Vol.I](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/i_love_me_vol.i/32/521_2.png) [@I\_Love\_Me\_Vol.I](https://boards.straightdope.com/u/I_Love_Me_Vol.I)\ **Post date:** [November 25, 2020, 9:22pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/34 "2020-11-25T21:22:06Z")
> [@Acsenray](#): > > No, I don’t think that’s a strong argument at all. Especially the example given above, which would specifically award all electoral votes to _the Republican_ regardless of any vote. That violates all kinds of standards for republican democracy and democratic republicanism. That kind of blatant one-party state just wouldn’t be constitutional. I am CERTAINLY not advocating that anything like that actually happen! And yeah, it’d be blatant and all kinds of wrong. I was only speculating on whether it could be considered constitutional as long as the state legislature actually voted, even if it was a foregone conclusion. I think it would be constitutional because the citizens got to vote (for legislators instead of Electors). If the citizens didn’t like it they could vote out the legislators who created the rule in the first place. and have a different system for the next election. But until then I think it would be constitutional. ---
**Author:** ![E-DUB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/e-dub/32/403_2.png) [@E-DUB](https://boards.straightdope.com/u/E-DUB)\ **Post date:** [November 25, 2020, 9:32pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/35 "2020-11-25T21:32:56Z")
The problem with the whole apportioning electors by Congressional district thing is that it makes the presidency of the country subject to state gerrymandering practices. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 25, 2020, 9:48pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/36 "2020-11-25T21:48:55Z")
Yep. It’s a terrible idea. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [November 25, 2020, 11:43pm UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/37 "2020-11-25T23:43:50Z")
> [@Akaj](#): > > 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? Sure, just wait until the Republican candidate for President wins the popular vote but loses the Electoral College, then have the Democrats offer to make it a constitutional amendment. This would also work for anti-gerrymandering amendments. When Democrats control most state congresses, tell the Republicans that they have the choice of a constitutional amendment, or we gerrymander in our favor. Basically, you have to wait until it would benefit Republicans to behave in an ethical manner (yes, I realize how rare that is) and then pounce. I realize that some of my liberal brethren think turnabout is fair play, but I want to at least offer to do the right thing, especially if we can get it in the constitution. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [November 26, 2020, 2:43am UTC](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355/38 "2020-11-26T02:43:52Z")
Right, doing it by district is terrible. I’m not convinced that doing it proportionally is terrible though. Basically if a state has 12 EV (10 reps and 2 senate), then for every 10% of the vote you get you get one of the 10 and the state-wide winner gets the other 2 as well. I don’t think any numbers have been published for this election, but for 2016 Trump still would have won but it would have been much closer. Also I think it makes recounts a bit less of a thing, as it’s unlikely that getting one additional EV would be enough to flip change the overall result. More personally, I would really like to have my vote for President count some day in my lifetime. And under this system at least I could say that I voted for the the 3 electors Biden would have received from Missouri. [Previous page](https://boards.straightdope.com/t/can-the-electoral-college-be-updated-constitutionally/926355.md?page=1)