Greg Mazmanian, Law & Public Policy Scholar, JD anticipated 2018
On November 9, 2016 at 2:58am EST, Hillary Clinton called Donald Trump to concede the presidential election. This event concluded one of the most unexpected electoral victories in American history. The campaign that preceded this election was characterized by harsh rhetoric that exacerbated the deep divisions within the country, as well as the division within both major parties. A Pew research study found that 53% of Trump voters and 46% of Clinton voters were casting their votes against the other candidate, rather than for their candidate. Despite the widespread unfavorable opinions of the two main party candidates, there was no huge spike in support for third-party candidates. Gary Johnson, the Libertarian party candidate who was on the ballot in all 50 states and the District of Columbia (DC), only garnered 3% of the popular vote. Jill Stein, the Green party candidate who was on the ballot in 45 states and DC, only received 1% of the popular vote. Americans did not vote for third-party candidates because of the truism that a third-party candidate cannot win a national election. The reason for this is the Electoral College and it is time, and they are right. The reason behind this lies in the Electoral College system.
The Electoral College system drifts in and out of the American consciousness every four years, especially when a candidate wins the Electoral College, but loses the popular vote. With the results of the 2016 election, this has now happened five times in American history. This first time occurred in 1824 when John Quincy Adams defeated Andrew Jackson, despite Jackson having more votes. It most famously occurred again in 2000, when Vice President Al Gore earned 537,000 more votes than George W. Bush. At last count, Secretary Clinton leads President-elect Trump by 200,000 votes.
The current Electoral College system was created in 1804 by the 12th Amendment. It replaced an earlier model that no longer worked given the rise of political parties. Under the current system, every state receives a number of electors equal to their total number of members in the House of Representatives plus two for their Senators. Those electors then cast their votes for President, as determined by the popular vote of the state. Those votes are then sealed and sent to Congress to be counted and, “[t]he person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed . . .”(emphasis added). It is this mathematical requirement that produces the all-important number of 270 electoral votes that are needed to secure the Presidency because there are currently 538 total Electoral College votes. It is this majority requirement that dooms third party candidacy in the United States.
If no candidate wins a majority of the Electoral College, then the vote goes to the House of Representatives where the members cast their votes as states. If no candidate receives a majority in the House, the vote then proceeds to the Senate, where the 100 members of the Senate vote on the Vice-Presidential candidates. The winner of the majority becomes President. This hierarchy of Constitutional election law was depicted in the most recent season of HBO comedy series VEEP, but, in the entire history of our country, the House has only decided three elections (1801, 1825, and 1877) and the Senate has decided none.
The structure of this system is that it makes it almost impossible for a third-party candidate to be elected. Even if a third-party were to garner one-third of the Electoral College, the final vote would always end up being decided by Congress. There, the vote would face the same majoritarian issues in the House and the Senate where the two-party system rules. The result could potentially be a form of Presidential gridlock where it would be impossible for a candidate to be elected without vote trading.
The Electoral College system may have made sense in 1804, but it no longer makes sense today. Ten states and the District of Columbia have already ratified the National Popular Vote Interstate Compact that will bind their electors to follow the national popular vote when the states that have joined command a majority of the Electoral College. A Constitutional Amendment would provide more permanent change. It could either modify the current system or replace it entirely. For example, one possible modification to the current system would be to elect the President based on a plurality of votes of the Electoral College. This change would allow for the rise of a third party, but does not solve many popular vote issues. A full replacement of the Electoral College would switch to a plurality of the national popular vote. Under such a system, individual states would continue to manage elections, but the candidates would have to run for election across the entire country and not just in certain “battleground” states.
In the end, any enduring change to the Electoral College must be accomplished by a Constitutional Amendment, which is a true rarity in the American system. Although it will be difficult to make the change, it is clear that something needs to be done sooner rather than later.