The Conversation

By David Weisbrot

Every four years, bemused Australians endeavour to come to terms with the Electoral College voting system for the President of the United States. While Americans vote directly for most political officeholders — and even for judges, police chiefs and school board officials — the US Constitution provides a different wrinkle when it comes to presidential elections.

When voters appear to mark their ballots on November 6th for President Obama or Mitt Romney, in reality they will be voting for a slate of electors aligned with that candidate’s party. The election then proceeds on a state-by-state basis, rather than on the basis of a majority of those voting nationally.

The US Constitution specifies that states are entitled to the same number of electors as they have representatives in the two houses of Congress. For example, California has 55 electoral votes, Texas 38, and New York and Florida 29 each, while less populous states like Alaska and Delaware have only three electoral votes each. Most states allocate their electoral votes on a winner-take-all basis, although Nebraska and Maine do this on a proportional basis. To win the presidency, a candidate needs to reach a majority — at least 270 — of the 538 electoral votes on offer.

What happens if the two candidates are tied with 269 votes each in the Electoral College, as is mathematically possible, but has never happened in practice? Under the 12th Amendment to the US Constitution, the matter is referred to the newly elected Congress, with the House of Representatives electing the President and the Senate electing the Vice President.

The vote in the Senate is straightforward, with a simple majority of the 100 senators electing the VP. In the House, however, voting is conducted on the basis of state delegations, rather than by the 435 representatives individually (while Washington DC is disenfranchised for historical reasons). Each of the 50 state delegations will caucus and decide which candidate will receive its vote, with sparsely populated North and South Dakota getting the same votes as California and Texas.

Based on the current polling projections of a Republican majority in the lower house and in at least 30 state delegations, and a Democratic majority in the Senate, it is theoretically possible for this bitterly hard-fought campaign to end with Mitt Romney as President and Joe Biden as Vice President!

The Electoral College never sits in plenary session — in mid-December, electors will meet in their respective state capitals to cast their votes, with the certified results sent to the office of the President of the Senate. Electors are morally bound by the election result in their state, and about half the states have laws making it an offence to cast a “faithless” vote. Because electors are usually dedicated party apparatchiks, this rarely occurs in practice, however, and no election result has ever been materially affected in this way.

The origins of this system reflect two Revolutionary-era concerns: that the emerging American federal system should retain strong state-based features; and a nagging suspicion by the Founding Fathers that popular elections would fall prey to “the mischiefs of faction”, as James Madison put it, in which “the public good is disregarded…by the superior force of an interested and overbearing majority”. Madison and others successfully argued for a more diffused form of governance, with checks and balances designed to withstand sectional blocs or movements “actuated by some common impulse of passion”.

Moreover, Southern states liked the fact that their populations were boosted by the counting of slaves as “three-fifths” of a voter for these purposes, while slaves were nevertheless completely disenfranchised.

Only rarely has the Electoral College system altered the results of an election. In the notoriously messy 2000 election, Al Gore won half a million more votes nationally, but George W Bush’s controversial victory in Florida (the last major undecided state) provided him with sufficient electoral votes to become president. This was only the third time in American history that a president failed to receive at least a plurality of the national popular vote, and the first time since 1888.

However, the largely winner-take-all nature of this system tends to marginalise those who don’t vote like their neighbours. In 2008, for example, John McCain received five million votes in California (against Obama’s 8.2 million) without winning a single electoral vote, while his 4.5 million votes in Texas delivered all of that state’s electoral votes.

We already know that the 2012 election will be decided by a relatively small number of swinging voters in less than ten key battleground states, including Ohio, Florida, North Carolina, Virginia, Pennsylvania, Wisconsin and Colorado, and both campaigns will focus their efforts and spending there.

There are currently some serious rumblings about Electoral College reform, with most of the momentum generated by the lingering unease over the 2000 election. A non-partisan group called National Popular Vote (NPV) is promoting a compact whereby states pledge to award all of their electoral votes to the winner of the national popular vote. The compact is triggered if states with a total of 270 votes sign up to the new scheme. Although this initiative has received surprisingly little coverage in the US, and none at all in Australia, NPV’s model law has now been enacted by states with 132 electoral votes (49% of the target), while bills have passed through one house or are awaiting the Governor’s signature (or veto) in another dozen states.

Opinion polling in the US has strongly favoured abolition of the Electoral College and transition to a system of direct voting for the president. The genius of the NPV strategy is that it would bypass the old system without requiring a constitutional amendment — although a constitutional challenge in the courts is almost inevitable.

This initiative would deliver a number of important benefits. Most importantly, there could be no repeat of the situation in which the candidate who wins the most votes nationally fails to be elected president, with all the problems of democratic legitimacy that entails. Such a change would also restore the essentially democratic “one vote, one value” principle to presidential elections, and ensure that every vote in every state truly counts.

This article was originally published by The Conversation