As the 2020 election approaches, the Electoral College is coming under increasing fire. Critics of the college were outraged in 2016 when Donald Trump broke Hillary Clinton’s “blue wall” and narrowly won Michigan, Wisconsin and Pennsylvania, giving him an electoral victory, while Clinton’s overperformance in California and New York gave her a popular plurality and a three million vote edge. (How many of those California votes were legitimate is another question.) This made Donald Trump the second Republican president this century to be elected with fewer popular votes than his opponent. Since then, Democrats have been mostly critical of the Electoral College, and Elizabeth Warren has pledged she wants to be the last president elected by it.
After the 2016 upset, a group of electors, one of whom was Michael Baca of Colorado, tried to organize others to either swing the outcome of the race against Trump or throw the election into the House of Representatives. These so-called “Hamilton electors” evoked Alexander Hamilton’s view that the Electoral College should be a deliberative body not bound by the view of those who appointed them.
In practice, presidential elections have moved far from what they were at the time of the founding. Slates of electors chosen by popular vote quickly became the norm, and the “faithless elector” was considered an eccentric oddity. Yet due to faithless voting, Donald Trump lost two 2016 electoral votes in Texas to Ron Paul and John Kasich. Hillary Clinton lost one Hawaii vote to Bernie Sanders and four from Washington state, three of which went to Colin Powell and one to Native American activist Faith Spotted Eagle. The Washington state electors were fined $1,000 each for their faithless vote, which the Washington State Supreme Court upheld.
The other case arose in Colorado where Michael Baca tried to cast his ballot for John Kasich rather than Hillary Clinton, and was removed and replaced per Colorado election law. The United States Court of Appeals for the 10th Circuit sided with Baca. Last week the Supreme Court agreed to combine and hear these two faithless elector cases. The question before the court is simply, can states mandate how electors vote?
The Constitution states in Article II, Section 1, Clause 2 that electors will be appointed “in such manner as the legislature [of each state] may direct.” Thirty states have taken this to mean that electors can be required to vote according to the outcome of the race in that state. But those siding with the faithless electors argue that the state power to appoint is not also a power to direct voting, and that all electors are free to cast ballots for anyone they want. The Supreme Court will hear arguments on the case in spring and should decide it before the current term ends in June. A ruling favorable to faithless electors could place the outcome of the election in doubt into December.
But if some believe the Electoral College should be free to vote however it wants, others seek to chain it to the national popular vote. Last week a bill was introduced in Virginia that could make it the 17th jurisdiction to enter the National Popular Vote Interstate Compact. By this plan states would pledge to cast all their electoral votes for the winner of the national popular vote regardless of how the people of their state voted. It would go into effect when enough states take the pledge representing an electoral majority.
This plan may be unconstitutional on its face. Article I, Section 10 of the Constitution forbids any state to “enter into any Agreement or Compact with another State” without the consent of Congress. And legislators in New Hampshire have come up with a novel way to resist the compact by proposing to not release their popular vote totals until after the Electoral College votes.
Critics argue the Electoral College gives smaller states a disproportionate say in who becomes president – for example each New Hampshire elector represented 87,000 votes cast in 2016, while a California elector represented 258,000. But this also ensures that people who live in low population states are given a voice in the process. Los Angeles county for example has more population than 40 individual states, and California as a whole has around the same population as the 22 smallest states combined. In a purely popular vote election, large cities would dominate more than they already do, and smaller, more rural areas would be functionally disenfranchised.
The Electoral College encourages prospective presidents to craft strategies to appeal to more people in more states, or suffer the consequences. A salient example from 2016 is Wisconsin, which had voted Democratic since 1988. Donald Trump visited the state six times during the campaign and won there by less than one percent. Hillary Clinton, who assumed Wisconsin was in the bag, never showed up once.
Democrats should stop blaming the Electoral College for their 2016 woes when the real problem was Hillary Clinton’s overconfident, low-energy campaign underestimating Donald Trump’s scrappy zest for the hustings. The Electoral College is a perfectly good, time-tested and 100% American way to choose a president. Liberals should spend less time trying to twist or relitigate the rules and put more thought into nominating better candidates.
Chris Farrell is director of investigations and research for Judicial Watch, a nonprofit watchdog group. He previously worked as a counterintelligence case officer.