Flaws in the Electoral College

Florida's then

25 electoral votes were decisive in this election. The popular vote results in several Florida counties were challenged immediately after the polls closed there. The next five weeks were filled with partisan infighting, several recounts, and a number of court disputes. The United States Supreme Court brought an end to the bitter contest on December 12. It ruled, in Bush v. Gore, that the differing ways in which various counties were recounting votes violated the 14th Amendment's Equal Protection Clause. The Court's controversial 5-4 decision ended those recounts. It also preserved Mr. Bush's 537 vote lead in the Statewide count, giving him Florida's 25 electoral votes.

The Third Major Defect

In any presidential election, it is possible that the contest will be decided in the House. This has happened only twice, and not since 1824. In several other elections, however—most recently, 1968—a strong third-party bid has threatened to make it impossible for either major party candidate to win a majority in the electoral college, and so throw the election into the House of Representatives.

Given the actual challenges faced by the electoral college system throughout history, which generalization about the electoral college is most true?

The biggest fear of the system is that the voters' choices can be overridden.

When the Defect Becomes Reality

The popular vote winner has, in fact, failed to win the presidency four times: in 1824, 1876, 1888, and 2000. In that latest instance, the Democratic candidate, Vice President Al Gore, won 50,999,897 popular votes—543,895 more votes than his Republican opponent, the then-governor of Texas, George W. Bush. However, Mr. Bush received 271 electoral votes—one more than the bare majority in the electoral college, and so he became the nation's 43rd President.

The First Major Defect

There is the ever-present threat that the winner of the popular vote will not win the presidency. This danger is largely the result of two factors. The most important is the winner-take-all feature of the electoral college system. That is, the winning candidate customarily receives all of a State's electoral votes. Thus, in 2012, President Obama won just 51 percent of the popular vote in Virginia. Still, he won all of that State's 13 electoral votes—despite the fact that nearly 1.8 million Virginians voted for his opponent, Mitt Romney.

Objections to Election by the House of Representatives

Three serious objections can be raised regarding election by the House. First, the voting in such cases is by States, not by individual members. A State with a small population, such as Alaska, Wyoming, or Vermont, would have as much weight as the most populous State. Second, if the representatives from a State were so divided that no candidate was favored by a majority, that State would lose its vote. Third, the Constitution requires a majority of the States for election in the House—today, 26 States. If a strong third-party candidate were involved, there is a real possibility that the House could not make a decision by Inauguration Day. In such a case, Section 3 of the 20th Amendment states that "the Vice President elect shall act as President until a President shall have qualified." If no Vice President elect is available, the Presidential Succession Act would come into play. Note that it is even mathematically possible for the minority party in the House to have control of a majority of the individual State delegations. That party could then elect its candidate, even though he or she may have run second or even third in both the popular and the electoral vote contests.

A Consistent Problem

To this point, 15 Presidents have won the White House with less than a majority of the popular votes cast in their elections. The most recent of these "minority Presidents" were Bill Clinton in both 1992 and 1996, and George W. Bush in 2000. By now, you see the point: The winner-take-all factor produces an electoral vote that is, at best, only a distorted reflection of the popular vote. The Second Major Defect Nothing in the Constitution, nor in any federal statute, requires the electors to vote for the candidate favored by the popular vote in their States. Several States do have such laws, but they are of doubtful constitutionality, and none has ever been enforced.

To this point, however,

electors have "broken their pledges," refused to vote for their party's presidential nominee, on only eleven occasions—most recently in 2004. That year, one Minnesota elector, a Democrat, did not cast his ballot for his party's presidential candidate, John Kerry. He voted, instead, for the Democrats' vice presidential choice, John Edwards. In fact, he voted for Senator Edwards twice—once for President and then, again, on his other ballot, for Vice President. In no case has the vote of a "faithless elector" had a bearing on the outcome of a presidential election. But the potential is most certainly there.

The electoral college system

is plagued by three major defects: (1) the winner of the popular vote is not guaranteed the presidency; (2) electors are not required to vote in accord with the popular vote; and (3) any election might have to be decided in the House of Representatives.

The other major culprit

is the way the electoral votes are distributed among the States. Remember, two of the electors in each State are allotted because of a State's two Senate seats, regardless of population. So the distribution of electoral votes among the States does not match the facts of population and voter distribution. Consider an extreme case: California has 55 electoral votes, one for each 677,345 persons in the State, based on its 2010 population of 37,253,956 residents. Wyoming has 3 electoral votes, one for each 187,875 persons, based on its 2010 population of 563,626 residents.