# 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:** 2
**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, 8:23pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/21 "2018-09-23T20:23:35Z")
> [@ElvisL1ves](#): > > 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. It is actually not “all about war and diplomacy.” Try reading it. But it’s an unresolved matter, to be clear; yet some are under the mistaken impression the compact is perfectly legal because they want it sooooooooooo much. ---
**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, 8:29pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/22 "2018-09-23T20:29:06Z")
:dubious: Here it is, just for you: “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” IOW, what I said. No cherry-picking, please; it isn’t the Second Amendment. Context matters. ---
**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, 8:35pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/23 "2018-09-23T20:35:00Z")
> [@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. No, they don’t. In California, it takes over 700,000 voters to get one elector. In Wyoming, it takes less than 200,000 voters to get one elector. That means a Wyoming voter has more than three times the political power a California voter has. The Electoral College may be constitutional. But it’s wrong. There should be an amendment to abolish the Electoral College and let everyone’s vote count equally. ---
**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, 8:41pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/24 "2018-09-23T20:41:06Z")
> [@Chronos](#): > > 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. No more than the way they used to. If the duly elected state legislature decides Joe Blow picks the electors, how is that different than choosing them directly? ---
**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, 8:42pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/25 "2018-09-23T20:42:57Z")
Didja know there isn’t even a Constitutional right to vote? Not even in any \*state \*constitutions other than in Colorado? The document remains riddled with anachronisms even after all those amendments. ---
**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, 8:49pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/26 "2018-09-23T20:49:54Z")
> [@ElvisL1ves](#): > > :dubious: Here it is, just for you: “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” > > IOW, what I said. No cherry-picking, please; it isn’t the Second Amendment. Context matters. Sure, you have a view of the context being more important than the text because you really, really want a popular vote system. ---
**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, 9:14pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/27 "2018-09-23T21:14:15Z")
> [@Ravenman](#): > > Sure, you have a view of the context being more important than the text because you really, really want a popular vote system. Well, the context and previous court decisions. From Virginia v Tennessee (1893): > [@](#): > > According to the Court, the Compact Clause requires congressional consent only if the agreement among the states is “directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States”. ---
**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, 9:20pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/28 "2018-09-23T21:20:55Z")
> [@Ravenman](#): > > Sure, you have a view of the context being more important than the text Wrong. Not _more important_ than the text, but \*explanatory \*of the text. > [@](#): > > because you really, really want a popular vote system. And you really really don’t, obviously. So how do we resolve this dilemma? Perhaps by considering what the Court meant in its “one man, one vote” rulings? Perhaps by invoking what the writers meant, and told us they meant? If we’re still not sure about that, how about invoking the spirit of democracy itself? It isn’t that hard, really. By comparison, how do we get to the antidemocratic result \*you \*want, with or without snark? What do we have to ignore along the way? ---
**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, 10:19pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/29 "2018-09-23T22:19:24Z")
> [@CarnalK](#): > > Well, the context and previous court decisions. From Virginia v Tennessee (1893): Sadly, the language you quote is _dicta_, since the Court went on to hold that, in the case in question, Congress implicitly agreed to the compact between the two states about their border. Thus, the issue of whether or not the agreement needed Congressional approval under the Constitution was not actually relevant to the disposition of the case. I think much more dispositive of the question is _[United States Steel Corp. v. Multistate Tax Comm’n](https://supreme.justia.com/cases/federal/us/434/452/)_, 434 U.S. 452 (1978), which held that the Multistate Tax Commission was valid, even without Congressional approval. It adopted the rubric of _Virginia v. Tennessee_ in doing so. ---
**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, 10:29pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/30 "2018-09-23T22:29:44Z")
> [@ElvisL1ves](#): > > Wrong. Not _more important_ than the text, but \*explanatory \*of the text. > > And you really really don’t, obviously. So how do we resolve this dilemma? Perhaps by considering what the Court meant in its “one man, one vote” rulings? Perhaps by invoking what the writers meant, and told us they meant? If we’re still not sure about that, how about invoking the spirit of democracy itself? It isn’t that hard, really. > > By comparison, how do we get to the antidemocratic result \*you \*want, with or without snark? What do we have to ignore along the way? Come on, man. Basically no Western democracy directly elects the chief executive. The ones that directly elect a President, it’s a position with nowhere near the power of the US President. I’m not saying directly electing the Pres is wrong, but it’s not “antidemocratic” as is. Eta: thank you, DSYoungEsq. ---
**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, 10:36pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/31 "2018-09-23T22:36:06Z")
[For your reference.](https://en.wikipedia.org/wiki/Elections_by_country) Depends on what you mean by Western democracy. What is antidemocratic in the US system is a high disparity in vote strength depending on location. Also, as for Supreme Court precedents, we have _Bush v. Gore_, holding that the Court may step in and take over what is a state function under the Constitution if there’s a danger of the Republican losing. ---
**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, 11:09pm UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/32 "2018-09-23T23:09:36Z")
> [@ElvisL1ves](#): > > [For your reference.](https://en.wikipedia.org/wiki/Elections_by_country) Depends on what you mean by Western democracy. I don’t think so. France is closest but you can name another rather than link to a frigging wiki page on every “democracy” on the planet. ---
**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 24, 2018, 12:05am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/33 "2018-09-24T00:05:06Z")
Can we accept that the disagreements expressed in this thread is at least indicative of there being a case to be made? ---
**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 24, 2018, 12:20am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/34 "2018-09-24T00:20:52Z")
Is anyone in this thread other than you arguing that the Electoral College is unconstitutional? I mean, yeah, even one person making a case is evidence that a case can be made, but it’s a really lousy case. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [September 24, 2018, 12:45am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/35 "2018-09-24T00:45:50Z")
> [@CarnalK](#): > > France is closest but you can name another rather than link to a frigging wiki page on every “democracy” on the planet. Pretty much all of Latin America, including Mexico, Brazil, and Argentina. ---
**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 24, 2018, 1:54am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/36 "2018-09-24T01:54:15Z")
> [@ElvisL1ves](#): > > And you really really don’t, obviously. So how do we resolve this dilemma? Perhaps by considering what the Court meant in its “one man, one vote” rulings? Perhaps by invoking what the writers meant, and told us they meant? If we’re still not sure about that, how about invoking the spirit of democracy itself? It isn’t that hard, really. > > By comparison, how do we get to the antidemocratic result \*you \*want, with or without snark? What do we have to ignore along the way? Well, considering you are 100% wrong in your first statement ascribing anti-popular vote views to me, the rest of your post doesn’t make much sense. I mean, I’m absolutely floored that you are in error in something you’ve written. Must be a first, eh? The issue here is that I don’t want to see that people like you start writing new loopholes into the Constitution just because you want a particular result on a particular issue. The matter at hand may be gutting a silly and antiquated election system today; and maybe tomorrow it is about states gutting gun control or civil rights or who knows what. ---
**Author:** ![Dr.Strangelove](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr.strangelove/32/6613_2.png) [@Dr.Strangelove](https://boards.straightdope.com/u/Dr.Strangelove)\ **Post date:** [September 24, 2018, 2:27am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/37 "2018-09-24T02:27:45Z")
> [@Chronos](#): > > Is anyone in this thread other than you arguing that the Electoral College is unconstitutional? I mean, yeah, even one person making a case is evidence that a case can be made, but it’s a really lousy case. Despite the title, the OP isn’t really claiming that: > [@](#): > > 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. I say there is a case to be made. The Constitution doesn’t specify the method of electoral allocation, but it clearly _rules out_ some forms. The electors casting their votes based solely on the _white_ popular vote instead of the whole would be an obvious example. Likewise, the Constitution doesn’t specify how congressional district lines are drawn. But it does rule out some methods. To apply the EPC here, I think one would have to show that there’s a kind of systematic discrimination toward minority groups inherent in the winner-take-all rule. And furthermore it would have to be “convincing” to the SCOTUS. Unfortunately, the SCOTUS [doesn’t really seem responsive to statistical arguments](https://fivethirtyeight.com/features/the-supreme-court-is-allergic-to-math/), and I suspect one would have to employ math to show that some groups are discriminated against by the rule. ---
**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 24, 2018, 2:43am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/38 "2018-09-24T02:43:05Z")
Wouldn’t take much in the way of statistics to argue that Democrats in Texas and Republicans in California are effectively disenfranchised, at least at the presidential level. ---
**Author:** ![Dr.Strangelove](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr.strangelove/32/6613_2.png) [@Dr.Strangelove](https://boards.straightdope.com/u/Dr.Strangelove)\ **Post date:** [September 24, 2018, 2:54am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/39 "2018-09-24T02:54:44Z")
It’s not hard to show that their votes are worth less than Wyomingites. But it takes a few steps to demonstrate that the winner-take-all rule _specifically_ leads to effective disenfranchisement. I think one could make a convincing argument–but it would require at least some appeal to statistics. The SCOTUS is “allergic” to even minimal use of statistics, though. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [September 24, 2018, 5:17am UTC](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761/40 "2018-09-24T05:17:29Z")
> [@E-DUB](#): > > Wouldn’t take much in the way of statistics to argue that Democrats in Texas and Republicans in California are effectively disenfranchised, at least at the presidential level. Which ignores the fact that California voted Republican in every election but one from 1952 to 1988 (Goldwater, the odd one out). Asserting that California, or any other state, is a given for one particular party is simply wrong. It reflects nothing but the politics of the time; in the long run, the pendulum will swing again. Getting mad that some states seem currently locked in to a particular party and, as a result, trying to change the game is the wrong way to go about things. The right way is to fight to have those states hear a message from your party that is attractive. Michigan, Wisconsin and Pennsylvania went Republican in 2016 because Donald Trump did exactly that (wooing traditional labor Democrats with promises of tariffs). I see no indication that the country has been poorly served with the current system, nor can a credible case be made that the method of allocating electors to the winner of each state’s election is a violation of either the Equal Protection Clause or the Due Process Clause. Heck, it’s not even been established that intentionally gerrymandering electoral districts is a violation of the Constitution; if that’s acceptable, certainly the method used to apportion electors used by almost all states is. [Previous page](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761.md?page=1) [Next page](https://boards.straightdope.com/t/is-the-electoral-college-unconstitutional/821761.md?page=3)