The complicated history of the Electoral College
The Electoral College has met, and Joseph Biden received more than 270 electoral votes to be elected president of the United States. There is currently a debate over whether the Electoral College method of electing president should be continued.
In 2020, Biden won the popular vote and received enough votes to win the Electoral College vote. Five times in American history, the person who received the most popular votes lost the Electoral College vote. It happened most recently in 2016, when President Trump was elected.
Many wonder how we arrived at this point where a candidate can receive several million more votes, yet lose the election. It all began when the framers of our Constitution were deciding how to elect a president. It is said that at the time our forefathers were trying to decide how to elect a president. No country did so with a popular vote.
Many thought Congress should elect the president, while others thought it should be by popular vote. Instead, it was decided that each state should select electors based on the number of representatives and senators each state had.
It was called the Great Compromise, which occurred after extensive debate in 1787. The less populous states were fearful that the more populated states would control all legislation. Thus it resulted in every state having two senators and a number of representatives based on proportional representation. Under Article II, Section 1, Clauses 2 and 3, the legislature of each state determines the manner of how the electors are selected equal to the number of senators and representatives to which the state is entitled in Congress. Congress determines the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States.
The number of representatives in each state is determined by the census. Thus the number can change in each state as it did after the 2010 census. Missouri lost a representative and went from nine to eight representatives; New York and Ohio lost two representatives each. Seven states, in addition to Missouri, lost one vote. Six states gained one representative, including Arizona, Nevada, and South Carolina. Florida gained two seats, and Texas gained four.
Forty-eight states appoint all electors on a “winner takes all” basis. Maine and Nebraska award the electors by congressional district and then give the other two electoral votes for their senators on a statewide basis.
Another historical aspect of the Electoral College was consideration of the number of slaves in Southern states. The Southern states wanted the slaves to be counted so they could have more electoral votes. Of course, slaves could not vote, but the Southerners wanted to count them anyway. The “three-fifths compromise” led to each slave being counted as three-fifths of a person. The Constitution might not have been approved without this compromise. Of course, it has no application today.
One of the major complaints of the Electoral College is the fact that states such as Wyoming, Montana, Alaska, Delaware, Vermont, North Dakota and South Dakota are guaranteed three Electoral College votes for their two senators and one representative. This leads to a single representative in the smaller states representing fewer citizens than those in more populous states such as California, Florida and Texas.
Thus, the electors in the smaller states also represent fewer voters. The average constituents for each representative is approximately 700,000. However, West Virginia, Vermont, Rhode Island, Nebraska and New Hampshire have fewer than 700,000 in each congressional district. Delaware has 858,000 in its one district.
After the 2020 census is completed, there may be more reapportionment. A controversial issue, which has reached the courts, is whether noncitizens should be counted. Last Friday, the U.S. Supreme Court ducked a direct ruling on whether President Trump can exclude undocumented immigrants from the census count. The court said it was premature to consider this issue. The solicitor general admitted at oral argument that career officials at the Census Bureau still don’t even know how many undocumented residents it will be able to identify and how their number might affect apportionment.
This will be a hotly contested issue in the new administration. Justice Bryer pointed out in his dissent that President Trump wanted to exclude the immigrants because it would reduce the number of Democratic representatives. Thus, the debate will continue.
In the meantime, the Electoral College debate will also continue. It would take a constitutional amendment to eliminate the Electoral College. I would not anticipate that an amendment will occur anytime in the near future. Yet, that probably won’t stop the debate and political jockeying. It has been an American tradition for 233 years.
Bob Buckley is an attorney in Independence. Email him at firstname.lastname@example.org.