The Electoral College has become a favorite whipping boy of Democrats who believe it provides an advantage to their Republic rivals.
Twice in the last 20 years, Republicans have won the presidency after finishing second in the popular vote – and this year, at least for a day or so after the election, it looked like it might be happening again.
We even hear talk these days of getting rid of the Electoral College.
But is that realistic? After all, the Electoral College is constitutionally mandated. To get rid of it would require a constitutional amendment, a difficult process that would require affirmation by two-thirds of both the House and Senate and then adoption by at least 38 states.
Making the Case for Majority Rule
A bipartisan group, however, thinks they have a solution that would keep the Electoral College in place while, at the same time, providing a mechanism to ensure that only top vote getters can become president.
The National Popular Vote Interstate Compact (NPVIC) is seeking to create agreement among enough states to commit to an end run around the Electoral College.
The plan is simple: Each state in the Compact would commit to giving all its electoral votes to whoever wins the popular election – not to the winner in their state.
With 538 electoral votes allocated to each state and the District of Columbia based on population, the magic number for presidential candidates is 270 electoral votes. The idea behind the Compact is that when it has enough member states to total at least 270 electoral votes among them, it would put the Electoral College out of commission.
15 States Have Signed on
The NPVIC argues that this would guarantee majority rule and provide an incentive to voters, who would then know that their vote matters. As it is, national elections are decided by a handful of states where the races are known to be close and where parties invest their resources. Outside of those battleground states, voters may not feel as compelled to cast ballots.
The NPVIC has been around for a few years and is gaining strength, though it still has a long way to go. On Nov. 3, Colorado's voters passed a ballot measure to join NPVIC, making it the 15th state to do so, along with the District of Columbia. Together, the NVPIC members now account for 196 electoral votes.
NPVIC argues that it would remove the influence of a few swing states, but opponents counter that its passage would create a different kind of influence. They contend that the NPVIC plan would mean that candidates would focus their efforts on where the most votes are: big cities in populous states like California and New York.
Critics also argue that NPVIC's plan may be unconstitutional – courts could find that it undermines separate state-by-state voting as required by the U.S. Constitution.
It also seems obvious that there could be big political risks when a state that strongly supports Candidate A hands its electoral votes to a Candidate B who is despised in that state.
As it stands today, a voter in sparsely populated Wyoming has 3.6 times the voting power of a voter in California. If the Electoral College is flawed because it creates that kind of disparity, and if the NPVIC plan is also flawed, are there other alternatives?
The best alternative, some people believe, is ranked-choice voting. This method would replace the traditional winner-take-all system with one that reflects the will of the electorate. Voters would be able to rank candidates by preference. If no candidate reaches 50% on the first tally, the candidate with the least support is eliminated, and voters' second or even third choices then come into play.
This year, Maine became the first state to implement ranked-choice voting in a presidential election. Maine has four electoral votes, awarding two of them based on the statewide vote and one for each of its two Congressional districts. In the end, Maine did split its electoral votes: three for President-Elect Biden and one for President Trump.
About two dozen municipalities now use ranked-choice voting, and their numbers are growing. Still, the day when this method gains broad acceptance seems even more distant than the day when true majority rule (as envisioned by NPVIC) makes a relic of the Electoral College.
Like it or not, we'll probably still be using the Electoral College four years from now — warts and all.
- Maine OKs Ranked-Choice Voting in November, a First in the Nation (FindLaw's Law and Daily Life)
- Should the Voting Age Be Lowered to 16? (FindLaw's Law and Daily Life)
- How Does the Electoral College Work? (FindLaw's Learn About the Law)