Monday – October 29, 2012

With an election coming up I thought it might be an appropriate time to review the electoral process by which our president is elected. Nowhere in the Constitution is there any reference to the election of the president by popular vote. In fact it is possible for a president to be elected by winning the popular vote in only 11 states and, given the assumption that the percentage voting in each state is identical (which definitely will not be the case, but illustrates the point), a presidential candidate receiving about 28% of the popular vote could defeat another candidate receiving about 72%. This is theoretically and mathematically possible only by using the fanciful assumption that the president-elect wins the 11 largest states by only one vote and receives zero in the other 39. Still, it is a reason I have never liked the state by state, winner-take-all method of allocating electoral votes. It also demonstrates that the popular vote doesn’t determine the president; only the electoral vote determines. A disparity between the two votes has only occurred once since 1888, that being the Bush/Gore fiasco of 2000. Still, I daresay it will happen again someday. So, to what extent does the electoral college process represent the people’s choice?

The Constitution prescribes as follows: “Each State shall appoint, in such manner as the Legislature may direct (emphasis mine), a number of Electors equal to the whole number of Senators and Representatives to which the State may be entitled in Congress, but no Senator or Representative…shall be appointed as an Elector.” Amendment 23 (1961) awarded 3 additional electors to the District of Columbia making the total number now 538, with a majority of 270 now needed for election. The 11 largest states now have 270 electoral votes. Since representatives are allocated to states based on proportionate population as determined by census every 10 years, these numbers will remain the same for the 2012, 2016, and 2020 elections (unless another state is added).

As emphasized above, one little wrinkle in the process is that the selection method for electors varies from state to state. Generally each Party selects its own slate; sometimes the presidential candidate selects; sometimes they are on the ballot. But there is no provision in the Constitution or federal law that requires electors to vote according to the results of the popular vote in the state, and while 26 states have laws on the point, 24 do not. In the past, though not recently, there have been faithless electors who did not vote as supposedly pledged. None have ever been prosecuted. While originally most states chose electors according to the party makeup of their legislatures, today most all are determined by the state popular vote winner-take-all selection method (48 of 50). Nebraska and Maine still use the Congressional District Method, one vote for each representative’s district winner and two votes for the overall state winner. In 2008 Obama received one of Nebraska’s 5 votes.

After 2000 it became widely known that the candidate with the largest popular vote might not be elected. Lesser known is that it is possible that the two candidates with the most electoral votes might not win. This could occur if a substantial 3rd Party arose (discussed in last Muse) and none of the candidates obtained a majority of the electoral votes. The election is then determined by the House of Representatives, and each State only gets one vote even though it may have different parties. Furthermore, a majority of the 50 votes is required to determine a winner, and Vermont’s clout becomes as big as California’s. That should be a brouhaha and a hoot. In such event, the candidate originally in 3rd place could emerge as a winner.

Another wrinkle. Electors all vote on the same day as prescribed by Congress, which is generally about 6 weeks after the general election. What happens if the popular vote winner dies in the interim? Unanswered question as to who the electors vote for. However, once they have voted, should the winner then die before inauguration, the Vice President-Elect becomes President.

There have been many attempts to come up with a process for electing a president that avoids all the flaws of the electoral college system. Some favor the Congressional District Method. Some favor allocating the electors in each state in proportion to each candidate’s popular vote in the state. Others favor eliminating the electoral system and declaring the winner to be whomever receives the most popular votes nationwide. All those ideas require a constitutional amendment, which itself requires a 2/3 vote in both the House and Senate and ratification by ¾ the states, the political ramifications to one party or the other making this extremely difficult to achieve. In recent years a movement arose to circumvent the system without an amendment. Called the National Popular Vote Interstate Compact, it is an attempt to get states to agree to cast all their electoral votes for the presidential candidate who received the most popular vote nationwide (regardless of the outcome within their own state), provided enough states would enter the compact to have a minimum of 270 electoral votes to assure the outcome. So far 8 states (all democratic) and D.C. have agreed, but they only have a total of 132 electoral votes, the constitutionality is questionable, and the movement appears to be dying out.

Have an opinion? A bright idea that you think is better? Or should we let the sleeping dog lie until it raises its head again?

Thanks for stopping by.

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