In the U.S. Constitution, Section 1 of Article II brings us the basics of how our Presidents are actually chosen by an electoral college, rather than by popular vote of all U.S. citizens. A couple of the Amendments to the Constitution mention the electors, but, for our purposes, Article II, Section 1 is where you get the electoral college.
The number of electors a state gets is equal to the number of Senators and member of the House of Representatives. So, when voters across the country vote in the federal Presidential election, they’re not voting for the President. They’re voting for the electors who will choose the President.
Why does this matter? Aside from the basic lack of democracy inherent in the process, in a close election, a so-called “faithless elector” could actually decide who gets to be President. So, right now, the President is a guy who lost the popular vote by 3 million or so votes. But he’s in the Oval Office because of the Electoral College. His electoral college tally (306-232) wasn’t really close enough for one faithless elector to make a difference. But, you can easily imagine a scenario in 2020 where Trump wins all of the states he won in 2016 except Michigan and Pennsylvania. And, say Trump loses the other district in Maine that he won in 2016 and loses the district in Nebraska that Obama won in 2008. That would be a 270-268 win for President Warren (check out Political Wire to create your own scenarios).
Except, now the 10th Circuit has said that you can’t just undo the vote of a faithless elector, like the state of Colorado did in 2016. So, in the scenario I paint above, say two electors from Michigan or Pennsylvania vote for Trump instead of Warren. Voila! Trump wins reelection. Or even weirder, how about just one elector flips and it’s 269-269. That probably also means a Trump reelection, because then the election is decided by a vote in the House of Representatives. Each state gets one vote and, in my scenario, Trump wins 27-23.
I’m for the National Popular Vote Compact, where states with at least 270 electoral votes pledge to give their electoral votes to the candidate who wins the popular vote across all 50 states and DC. 16 states have passed the bill. It kicks in when enough states have passed it. So far it’s law in 16 jurisdictions with 196 electoral votes. Of course, the compact really addresses the fact that two of our last three Presidents were elected even though they didn’t win the popular vote. You could paint a scenario where the compact kicks in when a bare minimum of states with just 270 electoral votes have passed the bill. Then, in a close electoral college vote, a faithless elector from one of those states ends up overturning the intention of the compact. So, in that case, maybe a better option would be a constitutional amendment. Unfortunately, it doesn’t look like that option is any closer to being enacted. And certainly neither of these options has a chance of passing since the current state of affairs makes the electoral college advantageous for the Republican Party. Still, a guy can hope.
Before I sign off on this post, I wanted to address one of the criticisms of the popular vote. This comes from people on the Right generally who say something along the line of how, if the President were chosen by popular vote, then the small states would be forgotten and the focus would turn to states with large populations. I think the opposite is true, however. Right now, you can see that all the states are pretty much set in stone, except for a handful of swing states. And presidential campaigns are organized around winning the swing states. Some projections think that the election in 2020 comes down to just 3 states – Pennsylvania, Michigan and Wisconsin. But if you were trying to maximize your popular vote total, I think you would campaign everywhere in the country. Losing in Tennessee by 10 points, rather than 25 could make a big difference. Get the vote out in Democratic strongholds in Nashville and Memphis, for instance. Or go big in Atlanta, Georgia. And if Democrats can run up big totals in solid red states, like Tennessee or Georgia or even Texas, then Republicans couldn’t afford to take those states for granted in their campaigning. I think it just expands the playing field and gives more than just 6 states some attention during campaign time.