# Is the Electoral College unconstitutional? **URL:** \ **Category:** Politics & Elections\ **Created:** [September 23, 2018, 1:29am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761 "2018-09-23T01:29:36Z")\ **Posts on this page:** 20\ **Page:** 1
**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:** [September 23, 2018, 1:29am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/1 "2018-09-23T01:29:36Z")
What? I can hear you saying. Is he nuts? How can the Electoral College be unconstitutional when it’s in the freakin’ Constitution? OK, maybe not the whole thing, but the “winner take all” aspect of elector allocation might be in violation of the “Equal Protection Clause” of the Fourteenth Amendment. And since the 14th was ratified after the original document, it would take precedence. This rather unusual interpretation of things came to me today and, not really to my surprise, it seems that I’m not the first to think so. As witness a Google search on the subject. [https://www.google.com/search?source=hp&ei=WOqmW56sAaiXjwSK8L-4AQ&q=equal+protection+clause+electoral+college&oq=&gs\_l=psy-ab.1.0.35i39l6.0.0..3545...1.0..0.289.289.2-1......0......gws-wiz.....6.D7xK\_vhw5MQ](https://www.google.com/search?source=hp&ei=WOqmW56sAaiXjwSK8L-4AQ&q=equal+protection+clause+electoral+college&oq=&gs_l=psy-ab.1.0.35i39l6.0.0..3545...1.0..0.289.289.2-1......0......gws-wiz.....6.D7xK_vhw5MQ) What do you geniuses think? (Mod, feel free to move this to “Great Debates” if you feel it appropriate, but if this isn’t an “Elections” thread, I don’t know what is.) ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 23, 2018, 2:29am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/2 "2018-09-23T02:29:11Z")
Put me down for the “it’s in the freakin’ Constitution” group. I think it’s generally accepted that any text that specifically includes something (like the Electoral College) overrules another section of text that includes a broad principle that might be contradictory (like the Equal Protection Clause). ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [September 23, 2018, 2:36am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/3 "2018-09-23T02:36:57Z")
Equal protection does not inherently and obviously contradict the electoral college. Therefore, they must exist side by side. ---
**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:** [September 23, 2018, 2:41am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/4 "2018-09-23T02:41:05Z")
Ah, but the “winner take all” aspect is _not_ part of the Constitution, but a matter of state law. In fact, a couple of states allocate (somewhat) by Congressional district. (Not that I’d want to see _that_ practice adopted. At least not before gerrymandering is not so much of a problem.) ---
**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:** [September 23, 2018, 2:47am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/5 "2018-09-23T02:47:03Z")
The Winner-Take-All aspect is a practice adopted strictly as a political decision by the several states to maximize political weight, not a mandate – see Maine and Nebraska who allot their apportioned-share votes per Congressional District. The Constitution does not get into \*how \*each state will select its Electors. It is the formula for apportionment of Electoral Votes with a hard minimum of 3 per state, from among a maximum total fixed by law, that would be a clearer factor of unequal empowerment of the individual voters, but that hard minimum \*\*\*is \*\*\*explicitly mandated in the Constitution. (Congress could make the EC and the House of Representatives more closely proportional by expanding the House so the baseline for a district = the population of the least-populated state.) ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [September 23, 2018, 3:01am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/6 "2018-09-23T03:01:02Z")
The response to the argument such a system violates the Equal Protection Clause would start out by noting that that clause was added at a time when everyone apportioned that way, and, in the absence of some strong indication that it serves to affect a specially protected group, should be considered to be allowed. Responses to this, of course, can be made. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [September 23, 2018, 3:26am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/7 "2018-09-23T03:26:49Z")
> [@E-DUB](#): > > Ah, but the “winner take all” aspect is _not_ part of the Constitution, but a matter of state law. … It _IS_ part of the Constitution: > [@](#): > > Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors… ---
**Author:** ![GoPostie](https://avatars.discourse-cdn.com/v4/letter/g/bb73d2/32.png) [@GoPostie](https://boards.straightdope.com/u/GoPostie)\ **Post date:** [September 23, 2018, 10:43am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/8 "2018-09-23T10:43:19Z")
> [@Little\_Nemo](#): > > Put me down for the “it’s in the freakin’ Constitution” group… That’s, ah, reassuring then. Btw, how old is that document, and when did universal suffrage first occur … ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [September 23, 2018, 11:07am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/9 "2018-09-23T11:07:43Z")
Yeah, but that’s not really responsive. All that says is that the Constitution is changeable. And the EC is changeable via the same method. There’s nothing preventing - other than the difficulty factor - preventing the Constitution from being amended to alter or eliminate the electoral college. It would just be a heavy lift. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [September 23, 2018, 11:15am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/10 "2018-09-23T11:15:13Z")
The obvious remedy here is for enough states to join the National Popular Vote Interstate Compact that the question of how electors are appointed becomes moot. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [September 23, 2018, 12:36pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/11 "2018-09-23T12:36:46Z")
> [@Smapti](#): > > The obvious remedy here is for enough states to join the National Popular Vote Interstate Compact that the question of how electors are appointed becomes moot. Except that such a gimmick has constitutional problems as well. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [September 23, 2018, 12:39pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/12 "2018-09-23T12:39:47Z")
There is actually one difference between the NPVIS and true national elections: Under the NPVIS, states would still be the ones deciding eligibility of voters, and so it would be in each state’s best interests to do things like removing the age requirement. Now, maybe one might argue that children should be allowed to vote, but that’s an argument that should be made on its own merits, not as a side-effect of an unrelated change. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 23, 2018, 3:51pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/13 "2018-09-23T15:51:03Z")
> [@Ravenman](#): > > Except that such a gimmick has constitutional problems as well. Such as? ---
**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:** [September 23, 2018, 3:56pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/14 "2018-09-23T15:56:54Z")
> [@HurricaneDitka](#): > > It _IS_ part of the Constitution: Perhaps I should have said that it (the winner take all approach) is not _mandated_ by the Constitution. It is conceivable that states could pick a system that might not pass Constitutional muster such as , for example, having all of a states electors chosen by Hurricane Ditka. And if it is conceivable that they could do so, it is certainly conceivable that they may have done so already. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [September 23, 2018, 4:22pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/15 "2018-09-23T16:22:43Z")
> [@ElvisL1ves](#): > > Such as? It’s not really a Constitutional issue but as it is an interstate compact, it may require Congressional approval. That’s far from clear though. > [@E-DUB](#): > > Perhaps I should have said that it (the winner take all approach) is not _mandated_ by the Constitution. It is conceivable that states could pick a system that might not pass Constitutional muster such as , for example, having all of a states electors chosen by Hurricane Ditka. And if it is conceivable that they could do so, it is certainly conceivable that they may have done so already. I think if a state decided to let HurricaneDitka choose the electors, it wouldn’t violate the Constitution. What part would it be violating? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 23, 2018, 4:40pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/16 "2018-09-23T16:40:53Z")
> [@CarnalK](#): > > It’s not really a Constitutional issue but as it is an interstate compact, it may require Congressional approval. That’s far from clear though. Especially if you actually read the Compact Clause - it’s all about states engaging in war and performing their own diplomacy as regional groupings outside the structure of the federal government. Unless there’s just not enough time. To the OP, there are many parts of the Constitution that come into conflict with other parts, either philosophically or directly. This is just one of them. I would suggest that some continued ambiguity is actually healthy, since it keeps people actively thinking about it. ---
**Author:** ![That\_Don\_Guy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/that_don_guy/32/538_2.png) [@That\_Don\_Guy](https://boards.straightdope.com/u/That_Don_Guy)\ **Post date:** [September 23, 2018, 4:46pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/17 "2018-09-23T16:46:09Z")
I don’t see how the electoral college violates the equal protection clause. Each voter’s vote counts the same when it comes to electing a particular set of electors. > [@Smapti](#): > > The obvious remedy here is for enough states to join the National Popular Vote Interstate Compact that the question of how electors are appointed becomes moot. Except for a few little details - detail number one: who counts the votes? Detail number two: what stops a state not in the compact from passing a law saying that the only “vote counts” from a Presidential election that can be released officially before January 21 are the total number of votes, and the candidate that got the most votes? They don’t do it that way now because there’s no need to do it that way now. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [September 23, 2018, 6:17pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/18 "2018-09-23T18:17:57Z")
A state deciding that all electors would be chosen by **Hurricane Ditka** would probably violate the guarantee of a republican form of government. On the other hand, a state probably could declare that the electors would be chosen by the elected governor (which is not so different than them being chosen by the elected legislature), and if **Hurricane Ditka** were to be elected governor of such a state, then he could decide. ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [September 23, 2018, 7:20pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/19 "2018-09-23T19:20:25Z")
> [@Chronos](#): > > A state deciding that all electors would be chosen by **Hurricane Ditka** would probably violate the guarantee of a republican form of government. Depends on the capitalization. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 23, 2018, 7:23pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/20 "2018-09-23T19:23:48Z")
> [@That\_Don\_Guy](#): > > I don’t see how the electoral college violates the equal protection clause. Each voter’s vote counts the same when it comes to electing a particular set of electors. For that particular state. The US Constitution applies to all of the US, though. Unequally, at present. [Next page](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761.md?page=2)