Fix the Electoral College — Or Scrap It

“Faithless electors” are the least of its problems.

By The Editorial Board (

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  • Aug. 30, 2019
CreditCreditIllustration by Nicholas Konrad, Photograph by Getty Images

If you were looking for the perfect distillation of how dysfunctional the American system of electing the president is, it would be hard to top last week’s federal appeals court ruling allowing “electors” — the members of the Electoral College — to vote for whomever they want, rather than the candidate they were pledged to support.

“Wait,” you might say, “someone I’ve never even heard of can just throw out my vote for president?”

Well, yes. Or maybe not.

First some background: Micheal Baca was a Democratic elector in Colorado in 2016, pledged to Hillary Clinton, who won the state. Mr. Baca believed Mr. Trump’s electoral victory posed an existential threat to the country, so he began a campaign, with a Democraticelector in Washington State, to persuade electors of both parties to break their pledges and vote for someone they might agree was qualified for the job — like John Kasich, the former Ohio governor and 2016 Republican presidential candidate. If there were enough“faithless electors,” either Mr. Kasich would be president or the electoral vote would be deadlocked and the election thrown to the House.

While almost no one else joined Mr. Baca’s cause, he cast his ballot for Mr. Kasich anyway, in symbolic protest. In doing so he broke a Colorado law requiring electors pledged to the person who wins the state’s popular vote to cast their ballot for that candidate. The state replaced him with an elector who voted for Mrs. Clinton. Mr. Bacasued, saying that Colorado’s law — similar to those in more than two dozen states — violated his right to cast his electoral vote however he chose, as the framers intended.

Citing Alexander Hamilton’s dictum that the College ensured that “the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications,” Mr. Baca and his allies called themselves “Hamilton electors.”

The Aug. 20 ruling from a three-judge panel of the United States Court of Appeals for the 10th Circuit, in Denver, backed up his constitutional claim.

The decision was the reverse of a ruling by the Washington State Supreme Court in May that upheld that state’s law imposing a fineof $1,000 on three faithless electors, including Mr. Baca’s ally. That court noted that the Constitution gives states near-total authorityover electors.

If the United States Supreme Court steps in to resolve the conflicting rulings, it will of course note that Hamilton’s vision has not been a reality for more than 200 years. After electors unanimously chose the nonpartisan George Washington in the first two elections, national political parties developed and electors became partisan actors who voted for their party’s candidate.

In other words, electors aren’t distinguished citizens weighing whether the people have made a wise decision on their presidential ballot; they are men and women chosen because of their partisan loyalty. So it’s understandable that after years of tightly contested elections, Americans are aghast that an elector would dare to substitute his judgment for the will of the people.

But even if Mr. Baca were to win a Supreme Court ruling, not much would change. Outside of a few scattered symbolic protests, electors are almost never truly faithless, even when there’s no law stopping them. Consider the 2000 election, when George W. Bush won states representing 271 electoral votes — just one more than the minimum he needed to prevail. Despite losing the popular vote to Al Gore, Mr. Bush didn’t lose a single elector.

If states were forbidden from determining how their electors vote, parties would only be more careful about vetting prospective electors.

The point is that faithless electors are not the real problem. What really disregards the will of the people is the winner-take-all rule currently used by every state but Maine and Nebraska. Giving all electors to the winner of the statewide popular vote erases the votes of citizens in the political minority — say, the 4.5 million people who voted for Donald Trump in California, or the 3.9 millionwho voted for Hillary Clinton in Texas. Nationwide, this was the fate of 55 million people in 2016, or 42 percent of the country’s electorate.

The winner-take-all rule encourages campaigns to focus on closely divided battleground states, where a swing of even a few hundredvotes can move a huge bloc of electors — creating presidents out of popular-vote losers, like George W. Bush and Donald Trump. This violates the central democratic (or, if you prefer, republican) premises of political equality and majority rule.

What most people don’t realize is that the winner-take-all rule exists nowhere in the Constitution. It’s a pure creation of the states. They can award their electors by congressional district, as Maine and Nebraska do, or in proportion to the state’s popular vote, as several states have considered.

Or they could award them to the candidate who wins the most votes nationwide, regardless of the state outcome. That’s the elegant approach of the National Popular Vote interstate compact, which achieves a popular vote not by abolishing the College but by using it as the framers designed it — as a state-based institution. So far 15 states and the District of Columbia, with 196 electoral votes among them, have joined the compact, promising to award their electors to the national vote-winner. The compact goes into effect once it is joined by states representing 270 electoral votes — the bare majority needed to become president — thus guaranteeing the White House to the candidate who won the most votes.

Critics say that relying on the popular vote would allow the presidency to be decided by the big cities on the coasts, but big cities don’t come close to having enough votes to swing a national election. At the same time, the Electoral College doesn’t do any of the things its defenders claim it does. For example, it doesn’t force candidates to win nationwide support, and it doesn’t protect smaller states, since winner-take-all rules give far more influence to larger states, especially battlegrounds.

It’s unlikely that battleground states will abandon winner-take-all on their own, since it would lessen their political power. But right now a constitutional amendment to eliminate it would be as unlikely as one eliminating the Electoral College itself. Despite more than 700 proposals for amendments to reform or abolish the Electoral College — by far the most of any provision of the Constitution — it has remained.

The College has survived not because it makes sense, but because one party or the other has believed it gives them an advantage. That may be smart politics, but it’s terrible for a democracy.

More Times commentary on the Electoral CollegeOpinion | The Editorial BoardLet the People Pick the PresidentNov. 7, 2017Opinion | Jamelle BouieThe Electoral College Is the Greatest Threat to Our DemocracyFeb. 28, 2019Opinion | The Editorial BoardTime to End the Electoral CollegeDec. 19, 2016

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Follow The New York Times Opinion section on FacebookTwitter (@NYTopinion) and Instagram.  Correction: Aug. 30, 2019

An earlier version of this editorial referred imprecisely to how the winner of a presidential contest would be determined under the national popular vote interstate compact. The office would go to the candidate winning the most votes, not necessarily a numerical majority.

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