Examining the Electoral College: The National Popular Vote Interstate Compact as an Alternative

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Margo McGehee, Associate Member, University of Cincinnati Law Review

I. Introduction

As the 2020 general election nears, the memory of the 2016 election has many American voters on edge. Although Hillary Clinton won the national popular vote in 2016 by nearly three million votes, Donald Trump still managed to stake his claim to the White House by accumulating 57% of the electoral votes.^[1] The outcome of the 2016 election, and the four other elections where the winner of the popular vote ultimately lost the Presidency, has many people questioning the Electoral College system and the purpose it serves.[2]

This article will provide a brief overview of the Electoral College, discuss its flaws, and introduce the National Popular Vote Interstate Compact as a potential alternative to the current system.

II. Background on the Electoral College

The concept of the Electoral College stems from Article II, Section 1 of the U.S. Constitution, which states that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .”^[3] The Founding Fathers established the Electoral College as a compromise between those who wanted Congress to have the sole power to elect the President and those who wanted citizens to directly elect the President through a popular vote.^[4] The Electoral College was also part of the compromise over slavery, with southern states insisting that slaves count as three-fifths of a person when determining a state’s number of electors, even though the slaves could not participate in the election themselves.[5]

When Americans cast their ballots in presidential elections, they are actually voting for representatives of that candidate’s party known as “electors.”^[6] These electors are appointed by the state’s political parties and have pledged to cast their electoral vote for a specific candidate.^[7] Each state is assigned a certain number of electors—two electors representing the state’s Senate seats, and at least one additional elector representing the state’s Congressional districts.^[8] The Electoral College currently consists of 538 electors who vote for the President and Vice President on behalf of the citizens of their state; 270 votes are required for a candidate to win.^[9]

The Constitution gives the states exclusive control over how their electoral votes will be allocated.^[10] Today, all but two states employ a “winner-take-all” system where the candidate who wins the popular vote in that state will receive all of the state’s electoral votes.^[11]

III. Flaws of the Current Electoral College System

The Electoral College, namely the winner-take-all system implemented by most states, has been widely criticized throughout most of modern history.[12] One major criticism of the Electoral College is that states with smaller populations are overrepresented. Each state receives at least three electoral college votes, regardless of population, which leads to disparities in per capita representation.[13] For example, Wyoming has one elector for every 193,000 people, while California has only one for every 718,000 people.^[14] Similarly, this overrepresentation dilutes the votes of African-Americans, Latinos, and Asian-Americans, who live disproportionately in populous states with less per capita power, while simultaneously placing a heavy focus on rural, mostly white areas.^[15]

Critics of the winner-take-all system also note the emphasis this system places on “battleground” states at the expense of other states.[16] In 2016, 94% of the general-election campaign events were held in only 12 states, and two-thirds of those events were held in just six battleground states (OH, FL, VA, NC, PA, MI).^[17] Additionally, battleground states receive 7% more federal grants than non-battleground states.^[18] Under the winner-take-all system, candidates have little incentive to address issues facing states where the election is a foregone conclusion.[19]

The winner-take-all system is also responsible for the disparity seen between popular vote results and Electoral College results. Under this system, a candidate who wins a state by even the slimmest majority will take home all of that state’s electoral votes, which may help that candidate win in the Electoral College even if they lose the national popular vote.[20] The 2000 election illustrates this point. George W. Bush won Florida, a key battleground state, by a mere 537 votes.^[21] Despite his narrow margin of victory (and the fact that nearly half of Floridians voted for Al Gore) Bush received all of Florida’s electoral votes, allowing him to win the Presidency even after losing the national popular vote.[22]

IV. The National Popular Vote Interstate Compact

In 2006, after years of failed attempts to abolish the Electoral College through Constitutional amendment, an alternative to the current Electoral College system emerged—the National Popular Vote Interstate Compact.[23] Under this Compact, participating states agree to pledge all of their Electoral College votes to the candidate who obtains the most popular votes nationwide, rather than the candidate who won their state.^[24] This Compact preserves the Electoral College and the states’ power to control how the President is elected, while also guaranteeing the Presidency to the candidate who wins the popular vote.^[25]

The bill will not take effect until it has enough support to total 270 electoral votes.^[26] 16 jurisdictions have enacted the Compact, which accounts for 196 electoral votes, and the bill requires 74 more electoral votes to go into effect.^[27]

Despite adoption by nearly one-third of U.S. jurisdictions, the Compact has raised some concerns. Some fear that complete reliance on the popular vote will lead to expensive and time-consuming national recounts in close elections.[28] However, recounts would be far less likely under the National Popular Vote system than the current system, as elections would hinge on one large pool of votes rather than 51 smaller pools.^[29] The popular vote already decides state-level elections, and these elections have only a 1-in-185 rate of recount.^[30] By contrast, five of our country’s 58 Presidential elections have led to litigated state counts/recounts—this is a drastically higher rate of recount than the rate of state-level elections.^[31] Using the states as a model, Americans can expect a recount about once every 740 years under the National Popular Vote system.^[32]

Another fear is that electors will renege on their promise to vote for whoever wins the national popular vote; however, states may guard against this result by passing laws requiring electors to vote for their party’s nominee.[33] 33 states and D.C. already have such laws,^[34] and the Supreme Court determined this summer that these laws are constitutional.^[35]

Despite the outcome of the 2016 election, where seven electors declined to vote for their party’s nominee (the highest number in history), “faithless electors” are exceedingly rare.^[36] Throughout history, 99% of electors have voted as pledged.^[37] However, if, by chance, the 2016 election is an indication of movement toward a higher frequency of faithless electors, states have the power to pass stricter laws that require electors to vote as pledged.^[38] Additionally, under the Compact, the effect of faithless electors on the outcome of the election would be negligible because the whole system is intended to generate an exaggerated margin of victory in the Electoral College.^[39]

V. Conclusion

Throughout the past 200 years, over 700 proposals have been introduced to Congress that call for the revision or elimination of the Electoral College, more than any other issue.^[40] A recent Gallup poll shows that 61% of Americans support abolishing the Electoral College in favor of a national popular vote system; however, as seen with most political issues in the U.S., support is drawn along party lines with 81% of Democrats supporting abolition and only 23% of Republicans.[41]

At this time, the Electoral College favors Republican candidates because of the way Republican voters are distributed throughout the country.^[42] The demographic composition of the National Popular Vote Interstate Compact reflects this distribution, as it has only gained support from left-leaning jurisdictions.^[43] Regardless, the Compact could gain steam and acquire the 74 electoral votes it needs if electoral power switches in the future and the Republican party finds itself in a more precarious position.[44] Until then, or until another solution is introduced, the current Electoral College system will stand.

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^[1] Allyson Waller, How Does the Electoral College Work and Why Does It Matter?, N.Y. Times (Oct. 5, 2020), https://www.nytimes.com/article/electoral-college-explained.html.

[2] Id.

^[3] U.S. Const. art. II, § 1.

^[4] Electoral College History, National Archives (Dec. 17, 2019), https://www.archives.gov/electoral-college.

[5] America’s anachronistic electoral college gives Republicans an edge, The Economist (Jun. 12, 2020), https://www.economist.com/graphic-detail/2020/06/12/americas-anachronistic-electoral-college-gives-republicans-an-edge.

^[6] Helena Robertson, Ashley Kirk and Frank Hulley-Jones, Electoral college explained: how Biden faces an uphill battle in the US election, The Guardian (Sep. 2, 2020), https://www.theguardian.com/us-news/ng-interactive/2020/sep/02/electoral-college-explained-biden-uphill-battle-us-election.

^[7] Waller, supra note 1.

^[8] Robertson et. al., supra note 6; see also National Archives, supra note 4 (Under the 23rd Amendment of the Constitution, the District of Columbia is allocated three electors and treated like a State for purposes of the Electoral College.).

^[9] Waller, supra note 1.

^[10] U.S. Const. art. II, § 1; see also Agreement Among the States to Elect the President by National Popular Vote, National Popular Vote (last visited Oct. 7, 2020), https://www.nationalpopularvote.com/written-explanation.

^[11] History of Winner-Take-All Laws, National Popular Vote, https://www.nationalpopularvote.com/written-explanation (last visited Oct. 7, 2020).

[12] National Archives, supra note 4.

[13] Waller, supra note 1.

^[14] Robertson et. al., supra note 6.

^[15] Steve Coll, The Case for Dumping the Electoral College, The New Yorker (Sep. 13, 2020),

https://www.newyorker.com/magazine/2020/09/21/the-case-for-dumping-the-electoral-college.

[16] Waller, supra note 1.

^[17] National Popular Vote, supra note 10.

^[18] Id.

[19] Id.

[20] Id.

^[21] How the Electoral College Works Today, Fair Vote, https://www.fairvote.org/the_electoral_college#how_the_electoral_college_works_today (last visited Oct. 7, 2020).

[22] Id.

[23] National Popular Vote, supra note 10.

^[24] National Popular Vote, National Conference of State Legislatures (Jan. 27, 2020), https://www.ncsl.org/research/elections-and-campaigns/national-popular-vote.aspx.

^[25] Id.

^[26] National Popular Vote, supra note 10 (“4 small states (DE, HI, RI, VT), 8 medium-sized states (CO, CT, MD, MA, NJ, NM, OR, WA), 3 big states (CA, IL, NY), and the District of Columbia”).

^[27] Id.

[28] Myths About Recounts, National Popular Vote, https://www.nationalpopularvote.com/section_9.15 (last visited Oct. 7, 2020).

^[29] Id.

^[30] Id.

^[31] Id.

^[32] Id.

[33] Myths About Faithless Electors, National Popular Vote (last visited Oct. 7, 2020), https://www.nationalpopularvote.com/section_9.10.

^[34]Robert Alexander and David B. Cohen, How Donald Trump could win the presidency–and have Kamala Harris as his VP, CNN (Oct. 7, 2020), https://www.cnn.com/2020/10/07/opinions/trump-win-presidency-harris-vp-opinion-alexander-cohen/index.html.

^[35] Id.; Chiafalo v. Washington, 140 S. Ct. 2316 (2020).

^[36] Waller, supra note 1; National Archives, supra note 4.

^[37] Id.

^[38] See Chiafalo, 140 S. Ct.

^[39] National Popular Vote, supra note 33.

^[40] National Archives, supra note 4.

[41] Waller, supra note 1.

^[42] Robertson et. al., supra note 6.

^[43] Id.

[44] Id.