SIX

THE ELECTORAL COLLEGE: A RECIPE FOR FRAUD AND CHAOS

The presidential election crises in 1800, 1824, 1876, and 2000 each resulted from its own set of causes. The 1800 fiasco resulted from a quirk in the Constitution that produced a tie between running mates, the 1824 crisis stemmed from multiple viable candidates, and the 1876 donnybrook came about due to negligence and corruption. In 2000, the stars aligned perversely: The election hinged on a virtual tie in a state with poor voting machinery and convoluted recount procedures, among other problems. These various election disputes were also resolved through different means: in 1800 and 1824, by the House of Representatives; in 1876, by an ad hoc commission; and in 2000 by the United States Supreme Court.¹⁴³ Historians debate whether these outcomes were legitimate, but, with the exception of 1800, each outcome undeniably left the losing party feeling robbed.

The other presidential election we have considered, that of 2016, produced a potential crisis stemming from yet another source—covert foreign operations designed to assist one candidate. Though crisis was averted, because (unlike in the aforementioned elections) one candidate clearly received the most electoral votes and there was no evidence of vote tampering, here too the losing candidate and her supporters were understandably chagrined by the circumstances surrounding her defeat.

One other common thread runs through these disparate elections: In each, the crisis—or potential crisis, in the case of 2016—stemmed in part from the Electoral College, a result not entirely unforeseeable. Whatever virtues the Electoral College may have (as discussed below), it does not assure an orderly election. In a piece written just before Election Day in 2000, Professor Akhil Amar prophetically remarked on the “outside chance of a constitutional meltdown in the days ahead.”¹⁴⁴ Amar did not have in mind a virtual tie (followed by a battle royale over recounts) but rather an actual tie—each candidate receiving 269 electoral votes.¹⁴⁵ Still, if Amar narrowly missed prophesying the precise crisis that was days away, he nailed the larger point: Severe potential problems may arise from “the Constitution’s archaic and confusing rules concerning the Electoral College.”¹⁴⁶

The most common complaint about the Electoral College is its risk of negating the votes of millions of American citizens, and installing a person as president who receives fewer votes than his or her opponent. In four elections discussed earlier—1824, 1876, 2000, 2016—the candidate who won the presidency lost the popular vote, an event that also occurred in 1888. This fact alone delegitimized these five elections in the eyes of many, although the risk of a divergence between the popular vote and Electoral College vote had once seemed too improbable to be terribly worrisome. (In that sense, the “wrong winner” was akin to the “faithless elector” who ignores the vote in their own state—a theoretical problem not worth fretting over.) The fact that the Electoral College winner lost the popular vote twice in the last five elections gives the discussion more urgency. And it must not be thought that 2000 and 2016 were fluky. On the contrary, the real surprise is that the Electoral College and popular vote diverged so infrequently before 2000.

That this would change was not only foreseeable, but foreseen. In a prescient analysis written in 1996, Lawrence Longley and Neal Peirce warned that we could be headed down this path: “Careful analysis shows that the danger of an Electoral College misfire is not just historical but immediate in any close contest. In fact, only sheer luck in several recent elections has saved the nation from the electoral college victory of the popular vote loser.”¹⁴⁷ Twenty years later, we were taken by surprise by the sharpest divergence ever between the Electoral College and popular vote, with Hillary Clinton losing the former by seventy-seven votes despite winning the latter by almost three million votes. We would have been less surprised if we had heeded Longley and Peirce, who, based on statistical analysis, warned that a popular vote winner by 2 million to 3 million votes would still lose the Electoral College roughly 25 percent of the time.

It is misleading, however, to assume that the “wrong” candidate wins (or that the Electoral College “misfired”) when he or she loses the popular vote. The rules were clear beforehand, and the candidates sought victory in the Electoral College, not in the popular vote. The candidates surely would have campaigned differently had the winner been determined by popular vote. To employ a much-used analogy, the candidate who wins the presidency while losing the popular vote is arguably no less legitimate than the World Series champion that was outscored by its opponent in total runs. Total runs is a meaningless category, analogous to total votes within an election governed by the Electoral College.¹⁴⁸ Baseball has always has been operated as a series of discrete games, and the World Series conforms to this basic property of the sport.

We encounter the same phenomenon in other sports as well. For example, we feel no particular sympathy for the tennis player who loses a match 6-7, 6-0, 6-7, even though she won 18 games and her opponent only 14. Whereas the “game” is the paramount unit in baseball, the “set” takes precedence in tennis.

Presidential elections, however, are not a sporting event (in which the rules are inherently arbitrary), but rather an effort to select as chief magistrate the person desired by the populace.¹⁴⁹ There is no compelling reason to organize presidential elections in a way that treats electoral votes as the crucial unit (akin to the game in baseball and set in tennis) and allows someone to win an election while receiving fewer actual votes than their opponent.

In short, the most common argument for abolishing the Electoral College derives from the belief that individual voters are the fundamental unit when it comes to elections: Everyone’s vote should count equally and the presidency be determined accordingly. The founders may have had esoteric ideas about republican government, but, the argument goes, the winner of elections should be the candidate who receives the most votes—period.¹⁵⁰ Senator Birch Bayh, who long crusaded for abolition of the Electoral College, put the matter well: “Direct election is the only system that guarantees that every vote will count, that every vote will count the same, and that the candidate with the most votes will win.”¹⁵¹

As Bayh’s statement suggests, Electoral College abolitionists generally want the college replaced by a nationwide popular vote. Recognizing the danger of a large field that splinters the vote, thereby allowing the victor to emerge without widespread support, many advocates of a direct, national vote propose a runoff system akin to what some states employ for statewide or local races. Typically, if no candidate receives 40 percent of the vote, the top two face off in a runoff election.

Below, I shall make a different argument for abolishing the Electoral College, one based not on its undemocratic nature but rather on something rarely remarked—namely, that the Electoral College increases the susceptibility of our elections to fraud. First, though, I shall briefly address the major arguments in favor of retaining the Electoral College.

Supporters of the Electoral College note that it is time-tested. At least we know what we’re getting, and it has gotten us through fifty-eight presidential elections spanning well over 200 years. True, in practice the Electoral College bears little resemblance to what the founders envisioned, but, given the law of unintended consequences, we should nevertheless exercise caution about replacing it.¹⁵² Abolish the Electoral College and who knows what problems will arise from its replacement.

This argument, however, sets the bar for success too low. Even if we ignore other problems with the Electoral College, including the five times a president received fewer votes than his or her opponent, it has produced three crises. (I’m exempting the election of 1800, in which the crisis stemmed from a constitutional glitch repaired by the Twelfth Amendment.) This hardly seems a remarkable track record. And, as discussed below, the prospect of an election crisis has increased.

Supporters of the Electoral College also claim that it promotes the constitutionally important principle of “federalism,” forcing candidates to consider the interests of states. Professor Akhil Amar, one of America’s preeminent constitutional scholars, shrugs off this claim:

In the current system, candidates don’t appeal so much to state interests (what are those, anyway?) as to demographic groups (elderly voters, soccer moms) within states. And direct popular elections would still encourage candidates to take into account regional differences, like those between voters in the Midwest and the East. After all, one cannot win a national majority without getting lots of votes in lots of places.¹⁵³

What about the widespread view that the Electoral College protects the interests of small states? Since even the tiniest states have three electoral votes, candidates will pay attention to them. Compare the least populous state (Wyoming) to the most (California): Wyoming has 544,000 people, California 39.5 million. Thus California’s population is roughly seventy-five times greater than Wyoming’s, but California’s advantage in electoral votes (55 to 3) is only eighteen times greater. No presidential candidate would bother to campaign in Wyoming were it not for the fact that the Electoral College amplifies its relevance. As it happens, Wyoming is a reliably Republican state, so presidential candidates don’t campaign there anyway. But more contested small states, such as Nevada, New Hampshire, and Maine, may attract candidates thanks to their electoral votes.

There are a number of flaws with this argument. For starters, when it comes to where presidential candidates campaign, the Electoral College taketh away more than it giveth. If New Hampshirites and Nevadans benefit, what about Californians, New Yorkers, and Texans? Because these large states are not swing states, they rarely see candidates in the flesh (except, of course, for fundraising events). Is it really a good thing if candidates campaign in sparsely populated states while ignoring states with millions more people?

The assumption that candidates visit small states on account of the Electoral College turns out to be false. In the 2000 election, for example, the twenty least populous states received a combined nine visits from candidates Gore and Bush. By contrast, Georgia alone received eleven. During the final seven months of the campaign, fourteen states received zero presidential visits. All fourteen had eight or fewer electoral votes. So much for the Electoral College raising the relevance and visibility of small states.

The effect of the Electoral College on presidential campaigns is not to attract candidates to small states but rather to funnel the candidates to sizable swing states. Thus, in 2000, the candidates made frequent visits to Illinois (eighteen), Pennsylvania (twelve), and Ohio (eleven). The combined visits to those three states alone exceeded the combined visits to the forty least visited states. The same phenomenon occurred during the most recent close election, 2016: Two-thirds of all campaign events were held in just six states (the smallest of which, Virginia, is not small) and 94 percent of events took place in twelve states. To make matters worse, the focus on swing states means that, to a large extent, the same states in election after election see the candidates most, with the vast majority of voters nationwide perpetually ignored. One political scientist who studied the history of presidential campaigns summarized the situation as follows: “Candidates are not fools. They go where the Electoral College makes them go, and it makes them go to competitive states, especially large competitive states. They ignore most small states; in fact, they ignore most of the country.”¹⁵⁴

If we look at candidates’ media advertising and mailings, instead of just visits, we see the same thing. Should you happen to live in a swing state, you will (for better and worse) be bombarded by advertisements from the presidential candidates and independent groups that support them. If you don’t live in a swing state, you will be ignored. The objective of seeing presidential candidates campaign in more places is hindered, not helped, by the Electoral College.

To be fair, supporters of the Electoral College make the argument about candidate visits as part of a larger argument that the Electoral College promotes the interests of small states. However, the former figures to be a near perfect proxy for the latter. If candidates don’t worry about small states enough to campaign there, why would they worry about them when in office? As a historical matter, the notion that the framers envisioned the Electoral College as protecting small states is dubious. In recent years, eminent founding-era historians have shown that creating the Electoral College was less about small states and big states than about free states and slave states—with the anti-slavery North making concessions to the slave-driven South.¹⁵⁵ Consider the constitutional provision counting slaves as three-fifths of a person for the purposes of apportioning representatives. This notorious clause increased the number of electoral votes accorded slave states, and thus enhanced the power of those states. (To this day, some white supremacists see the Electoral College as a means of perpetuating racial dominance in the United States.¹⁵⁶)

Perhaps the lowest moment of the Constitutional Convention came when none other than James Madison, the deservedly anointed father of the Constitution, protested against the idea of a direct, national popular vote to determine the presidency: “The right of suffrage was much more diffusive in the northern than the southern states; and the latter could have no influence on the election on the score of negroes.”¹⁵⁷ The uncharacteristically awkward formulation may reflect Madison’s moral uneasiness, but his sentiment can be translated as follows: “Of course slaves are just property and can’t vote, but we who own this property want to count them as if they were fully human so as to increase our political power.” Counting enslaved black people, albeit at a degrading two-fifths discount, perversely empowered the white supremacist South. This cynical racism worked to perfection: “More than one in four U.S. presidents were involved in human trafficking and slavery,” observes Clarence Lusane in his aptly titled book A Black History of the White House. The prevalence of slave-owning presidents resulted directly from the Electoral College.

For example, as Akhil Amar reminds us, in Thomas Jefferson’s victory over John Adams in the election of 1800, “the slavery-skew of the electoral college was the decisive margin of victory: without the extra electoral college votes generated by slavery, the mostly southern states that supported Jefferson would not have sufficed to give him a majority. As pointed observers remarked at the time, Thomas Jefferson metaphorically rode into the executive mansion on the backs of slaves.”¹⁵⁸

A mythology has built up around the Electoral College, the idea that it occupies a special place in the Founding Fathers’ intricate constitutional architecture and reflects sophisticated thinking—in contrast to the simpleminded idea of electing the president directly through the popular vote. In fact, quite a few founders, including some of the shrewdest like Gouverneur Morris, supported direct election of the president.¹⁵⁹ It is likely no coincidence that Morris was an anti-slavery Northerner.

Even putting aside the Electoral College’s role as an instrument of white supremacy, the notion that the college helps small states rests partly on a confusion. It is certainly true that giving each state two senators, regardless of population, enhances the power of states in general and small states in particular. To take the example noted earlier, Wyoming has one-eighteenth the representation in Congress of California despite having only one seventy-fifth of its population. But the benefits of this arrangement have little to do with the Electoral College. Few who want to abolish the Electoral College have suggested abolishing or changing the composition of the Senate (which cannot be done anyway).¹⁶⁰ Rather, we see little value in this federalist principle when it comes to electing the one person who is directly and solely responsible for the good of the entire nation.¹⁶¹ Wyoming and other small states have a disproportionate say in the Congress. It is hardly imperative that they also have a disproportionate influence on the executive branch.¹⁶² Consider that no law can pass without the Senate signing on. That alone offers significant protection to small states.

If the alleged advantages of the Electoral College are overrated, its fundamentally undemocratic nature and white supremacist legacy may be reason enough to abolish it. Opponents of the college have tried mightily; members of Congress have introduced more than 1,000 proposed constitutional amendments to alter or abolish the Electoral College. No other clause has attracted close to this many proposed amendments. But these efforts have failed to gain traction. Abolition of the Electoral College apparently requires additional arguments beyond the emphasis on equality and democracy.

Below, I advance a different reason for abolishing the Electoral College, one that has more salience today than ever before. While my argument is informed by the elections of 1824, 1876, and 2000 (and to a lesser extent 2016), my concern is not that the wrong man won in those crisis elections. Rather, my concern is the crises themselves. They proved divisive for the nation and could have turned out worse. Next time we may not be so lucky as to see a peaceful and sufficiently timely resolution. My argument against the Electoral College is that it invites crisis and fraud, a risk that has become greater in the age of hacking.

THE ELECTORAL COLLEGE INVITES CRISIS AND FRAUD

The elections of 1824, 1876, 2000, and 2016 were not particularly close in the national popular vote. Andrew Jackson received 38,000 more votes than John Quincy Adams, a veritable landslide; Jackson received 41 percent of the vote and Adams just 31 percent (with the caveat that in six states’ electors were chosen by the state legislature rather than popular vote). Samuel Tilden received 254,000 more votes than Rutherford B. Hayes, a much smaller win in percentage terms, but still a decisive 3 percent. Had the winner of these elections been determined by national popular vote, corrupt bargains and partisan commissions would not have entered the picture. The 2000 election was far closer in percentage terms (0.7 percent), but Al Gore received 544,000 more votes than George W. Bush. Without the Electoral College, there would have been a clear winner and no need for a controversial Supreme Court decision that compromised the legitimacy of both the President and the Court.¹⁶³ So too, the popular vote gap in 2016 was almost 3 million.

Curiously, supporters of the Electoral College sometimes argue that it increases the likelihood of a decisive winner. For example, an influential American Enterprise Institute (AEI) essay defending the Electoral College insisted that “the American electorate has a fundamental tendency to finish closely, with ‘photo finish’ elections. . . . In purely numerical popular votes, an election might be uncertain and vulnerable to challenge; but the Electoral College replaces the numerical uncertainty with an unambiguously visible constitutional majority.”¹⁶⁴

On rare occasion, presidential elections have played out as the AEI envisions. In 1968, Richard Nixon’s advantage over Hubert Humphrey was less than 1 percent in the popular vote but a commanding 20 percent in the Electoral College. In the nineteenth century (when there were vastly fewer votes, and thus a far greater likelihood of a national squeaker), this happened several times, most notably in 1880, when James Garfield received just 1,898 more votes than Winifred Hancock yet won handily in the Electoral College. But far more often the opposite has been the case, with elections producing a comfortable popular vote margin accompanied by a thin margin in the Electoral College—thin enough that one or two states going differently would have changed the outcome.¹⁶⁵ Putting aside the election of 1876, but sticking to the nineteenth century, in 1844, 1848, and 1884, the popular vote margin was reasonably decisive (340,000, 1.3 million, and 58,000 respectively) whereas, a switch of 3,300 or fewer votes in one or two states would have produced a different result in the Electoral College.

This happened even more often in the twentieth century, with the 1916 election presenting a perfect example. Woodrow Wilson received 578,000 more votes than Charles Evan Hughes, a fairly comfortable margin. However, he received only 277 electoral votes (to Hughes’s 254), and barely won several states. At the national level, it would have taken a switch of 289,000 votes to change the outcome. By contrast, a flip of a mere 1,867 votes in California would have given Hughes the election. Wilson also won New Hampshire’s four electoral votes by fifty-six votes(!) and North Dakota’s five by 1,735. A switch of just 895 votes in those two states combined would have flipped nine electoral votes from Wilson’s column to Hughes’s. In other words, a switch of a mere 2,763 votes would have left Hughes with 275 electoral votes and Wilson 256—basically reversing their actual totals. That is less than 1 percent of the number of votes that would have had to flip to make Hughes the winner in the national popular vote.

The 1916 election was far closer to the norm than to the exception. As a straightforward historical fact, the Electoral College produces squeakers far more often than does the national popular vote. In 1948, for example, a flip of just 31,000 votes in four states (Illinois, Ohio, California, Idaho) would have made Thomas Dewey president, despite the fact that Harry Truman won the national vote handily. To change the latter, Dewey would have needed to flip well over 1 million Truman votes to his column. Similarly, in 1976, Gerald Ford would have defeated Jimmy Carter with a shift of just over 9,000 votes combined in Ohio and Hawaii. A shift of an additional 7,000 in Mississippi and Ford would have won the Electoral College with room to spare. For Ford to have won the national popular vote, however, would have required flipping 841,000 votes. Overall, we have experienced twenty-two “hair’s-breadth elections” in the Electoral College, most of which produced substantial popular vote margins.¹⁶⁶

As noted, the 2016 election provides another excellent example. Hillary Clinton received 2.87 million more votes than Donald Trump. By contrast, a swing of fewer than 62,000 votes in Florida and Michigan combined would have changed the Electoral College from Trump to Clinton. Tiny swings in Pennsylvania and Wisconsin, and small swings in Arizona and North Carolina, would have changed the Electoral College result dramatically. Similarly, in 2000, Florida was not the only state in which a small switch of votes would have changed the Electoral College outcome. George W. Bush won four other states (Missouri, Nevada, Tennessee, and New Hampshire), totaling thirty-nine electoral votes, by minuscule margins. With a swing of fewer than 100,000 votes in these states combined, Al Gore would have won the Electoral College comfortably instead of losing it. Again, that’s not even counting Florida’s twenty-five electoral votes.¹⁶⁷ By contrast, 272,000 Gore votes would have to have swung to Bush to change the popular vote winner.

In both 2000 and 2016, the Electoral College presented hackers and other perpetrators of fraud with golden opportunities. In each case, they would have had to tamper with a small number of ballots in a few states to produce a different outcome—exponentially fewer than the number of ballots they would have had to tamper with to affect the outcome in the national popular vote. This has been true in no fewer than nine presidential elections, whereas the reverse (a virtual tie in the national popular vote) has occurred just once: the aforementioned 1880 election.

As noted above, the opposite is sometimes suggested—that the Electoral College reduces the risk of fraud and endless recounts. Theoretically, this claim makes sense, because the Electoral College renders the exact tally in each state irrelevant unless it is extremely close. But historically, the idea that the Electoral College magnifies the winner’s margin has been debunked.¹⁶⁸ On the contrary, the Electoral College enhances the risk of a close race whose outcome can be affected through relatively modest—and therefore more difficult to detect—manipulation. Indeed, while not referencing the Electoral College specifically, a cybersecurity think tank made this key point in the ominously-titled book, Hacking Elections Is Easy: “By focusing on the machines in swing regions of swing states, an election can be hacked without drawing considerable notice.”¹⁶⁹

It may be countered that, while it is technically true that hackers and other election fraudsters can more easily sabotage the Electoral College because they would need to change relatively few votes, this advantage is illusory, because the would-be infiltrators cannot know in advance which states will be razor close.¹⁷⁰ But such a claim is empirically shaky. In this era of advanced analytics and polling, everyone pretty much knows which handful of states realistically could go to either candidate.

A potentially stronger objection to the argument that hackers would have an easier time dictating the outcome in the Electoral College is that the data supporting this conclusion might have been different if the winner of prior elections had been determined by the national popular vote. After all, candidates have designed their campaigns with the Electoral College in mind, and would campaign differently if the result were determined differently. And if the candidates campaigned differently, the results might differ too. We cannot assume that we would end up with the fairly comfortable national margin that has been the norm.

It is certainly true that, if a national popular vote determined the winner, candidates would campaign differently—for example, paying more attention to heavily populated non-swing states and less to smaller swing states. However, there is no reason to believe that the different campaign strategies dictated by a system that measured only the popular vote would significantly affect the overall margin of that vote nationwide.

Consider, as a thought experiment, the 2000 presidential election, focusing on California and New Hampshire—exactly the kind of states that would presumably be treated differently by the candidates if the Electoral College were replaced by a national popular vote. George W. Bush won New Hampshire’s four electoral votes by fewer than 7,200 votes out of just 540,000 cast, whereas Al Gore won California’s fifty-five electoral votes by more than 1.2 million out of roughly 10.4 million cast. Had the winner of the election been determined by national popular vote, surely the candidates would have focused substantial attention on California and little on New Hampshire. (Put aside the fact, discussed above, that even under the status quo general election candidates pay little attention to small states like New Hampshire.) But would this have substantially affected the outcome in either state? Probably not, because both candidates would have changed their behavior with respect to these states. Is there good reason to believe that California would have been less lopsided had both candidates (instead of neither) campaigned there extensively?

To be sure, we can posit reasons why the vote count might have been significantly different. Maybe, for example, one of the candidates held more effective rallies. Maybe more people would have voted, and most of the new voters would have favored one candidate. Today, people living in decisively red or blue states may think their vote a waste. Some evidence suggests that people favoring the losing candidate are more likely to stay home if the election is perceived as one-sided. If true, replacing the Electoral College with a national popular vote would encourage Democrats in Texas and Republicans in California and New York to come out and vote.¹⁷¹ Conceivably that would make the national margin closer, though there is no particular reason to assume that. And, of course, encouraging more voters can be seen as a good thing and therefore another argument against the Electoral College.

Given the law of unintended consequences, it is always possible that moving to a national popular vote would backfire and make presidential elections more rather than less prone to crisis and fraud. However, we must act on the best information available, and failing to act is a form of action. Extensive historical evidence indicates that the Electoral College increases our susceptibility to squeakers and therefore to crisis and fraud. Especially in the age of hacking, it is irresponsible not to consider this important circumstance when weighing the pros and cons of moving to a direct national election.

Finally, the argument that the Electoral College will produce more squeakers than the national vote does not rest solely on history. It also rests on the basic statistical principle that the greater the sample size, the greater the variation.¹⁷² Imagine there were only ten voters in every state. Assuming the candidates are equal, as a sheer matter of probability the fifty states would be almost certain to produce many five-five ties. By contrast, it is extremely unlikely that the overall national tally of the 500 votes will produce a 250-250 tie. When we map this insight onto the 2000 election, we realize that it makes good sense, probabilistically, that several states were exceptionally close, whereas the margin separating the candidates nationally exceeded 500,000 votes.¹⁷³ The national percentage difference was small (though still vastly greater than that in Florida), but would-be hackers aren’t concerned with percentages. As noted, they would have had to flip 272,000 votes to affect the national vote winner and only a few hundred to affect the winner in Florida—and therefore the Electoral College.

In the wake of the 2000 election, eminent historian Jack Rakove asked, rhetorically, “How do the Republic and the Union benefit when an election can turn on a flawed ballot design in a single county or a single state?”¹⁷⁴ This sensible question needs to be broadened: How do we benefit when the election can turn on a single hack or other act of fraud in a single county or a single state?

It may be countered that, if the national popular vote is close, the result could produce chaos far greater than occurred even in 2000, when at least the mayhem was localized in one state. As Judge Richard Posner says, “A national recount would be an expensive nightmare.”¹⁷⁵ Posner maintains that, had the Bush-Gore race been determined by popular vote, “there is little doubt that if Bush’s people nosed around heavily Democratic precincts throughout the nation they would come up with colorable arguments about voter and tabulation errors . . . that might have made the difference” and thus justified a recount.¹⁷⁶ In large part for this reason, Posner concludes that abolishing the Electoral College “would exacerbate the problem of disputed Presidential elections.”¹⁷⁷

But note that Posner concedes that Bush winning a recount “would have been a long shot, given Gore’s popular-vote margin.”¹⁷⁸ Such a long shot, one might say, that a recount would have made little sense. As noted, there has been only one presidential election (1880) in which the national popular vote produced such a squeaker that a recount would rationally be deemed useful. The answer to Posner’s argument, then, is that the national popular vote exacerbates disputed presidential elections only if there is a legitimate dispute—and, the evidence suggests, there rarely will be.¹⁷⁹

Of course, as Posner indicates, the losing candidate may wish to toss a Hail Mary. The solution to this problem is to come up with a rational scheme for dealing with election disputes, which includes a mechanism for determining when a recount is worth undertaking. Posner means to evoke the behavior of the candidates in 2000, “nosing around” and making “colorable arguments,” but that fiasco took place in a state with a convoluted election code that encouraged scheming and had no clear means of adjudicating disputes. In the next chapter, I will propose a nationwide mechanism for reducing such chaos. Indeed, I package it with my call for abolition of the Electoral College into a single proposed constitutional amendment.¹⁸⁰

Everything is a case of compared to what? Perhaps the Electoral College is, as Churchill said of democracy, the worst system except for all the others. We should at least briefly touch on the major alleged flaw with a direct national vote: It would weaken the two-party system. Today, the argument goes, third parties typically have little impact on presidential elections because they rarely acquire electoral votes. If we abolished the Electoral College, third parties would be empowered by their popular vote totals. Suppose that the new election law provides for a runoff between the top two finishers if no candidate receives 40 percent of the vote. (As noted, many Electoral College abolitionists favor such a provision.) Third-party candidates could prevent any candidate from receiving 40 percent and then hold major cards for the runoff, offering their public support in exchange for some role or influence in the next administration.

However, such minor-party mischief is equally possible within the Electoral College system. If a third-party candidate threatens to take a sufficient number of votes from another candidate in a few states, he or she may have enormous leverage. Many argue that Ralph Nader cost Al Gore the presidency in 2000, a foreseeable result. (Nor was this a fluky outcome. Though the data are inconclusive, many people believe that Ross Perot cost George Bush the 1992 election.) Had he been so inclined, Nader could have sought to extract promises from Gore in exchange for dropping out of the race. It makes little difference whether such bargaining takes place before Election Day or after the initial election but prior to the runoff.

Note that all fifty states elect governors without the benefit of an electoral college. There is no evidence that such races are generally marred or disproportionately influenced by third-party candidates. Occasionally a viable third-party candidate produces a splintered vote or otherwise significantly influences the race. Occasionally that happens in presidential elections too, despite the Electoral College.

Anyone who finds the arguments in this chapter unpersuasive, and remains attached to the Electoral College, should at least consider a compromise that would retain the Electoral College but greatly reduce the extent to which it invites fraud and crisis. Having fifty-one separate elections (the District of Columbia along with the states), the tampering with any of which can dictate the overall winner, increases the risk of fraud and crisis mainly because forty-nine of those fifty-one elections determine electoral votes on a winner-take-all basis. If we keep the Electoral College, but allocate candidates’ electoral votes proportionally to their statewide popular vote, the risk of outcome-determinative tampering will plummet.

George W. Bush and Al Gore almost perfectly split Florida’s 6 million votes. Does it make sense that one of them received twenty-five electoral votes and the other zero? This wildly lopsided allocation seems unfair to the losing candidate of a close state (and his or her voters) and difficult to justify.¹⁸¹ More importantly, for present purposes, apportioning votes would disincentivize fraud. Consider that, in 2000, flipping a few hundred votes in Florida would have meant a swing of fifty electoral votes. If proportional voting were used instead of the “unit” rule (so-called because each state’s votes are treated as a single unit), flipping those same few hundred votes would mean a flip of just two electoral votes.¹⁸² Professor Robert Bennett rightly observes that the winner-take-all system “magnifies the significance of what otherwise might be relatively trivial disputes.”¹⁸³

Defenders of the unit rule will counter that, under proportional allocations, Ralph Nader and Pat Buchanan would have picked up electoral votes in Florida and elsewhere—reducing the bottom-line vote of the winner and encouraging new parties, thereby weakening the two-party system. To avoid that result, however, we need only stipulate that electoral votes are allocated to the top two finishers in the state, according to their percentage of the vote relative to one another. Alternatively, we could provide that candidates must receive at least 10 percent of the vote in a given state to qualify for electoral votes. Third-party candidates rarely reach that threshold. Nader and Buchanan failed to reach that threshold in a single state.¹⁸⁴

Replacing the unit rule with proportional allocation would likely have a collateral benefit: encouraging people to vote. As noted, under the unit rule, voters in many states consider their vote a waste because the outcome in their state is a foregone conclusion.¹⁸⁵ Under proportional allocation, their votes would be every bit as meaningful as that of voters in swing states. And, it should be added, the winner-take-all approach was not mandated by the Constitution nor expected by the Founding Fathers. It emerged as a kind of race to the bottom, in which the kingmakers who controlled state delegations wished to maximize their own power, forcing their counterparts in other states to follow suit. The unit rule served parochial interests, not the national interest.¹⁸⁶

A possible negative result of proportional allocation would be the occasional election thrown into the House of Representatives. In 1992, for example, Ross Perot’s 19 percent of the vote would have translated to a fair number of electoral votes, likely denying Bill Clinton a majority. Once again, this risk can be eliminated if electoral votes are apportioned only between the top two vote-getters. Moreover, the risk of an election thrown to the House can occur under the winner-take-all status quo as well, and is more likely to do so with a candidate who has purely regional appeal, such as George Wallace. In 1968, Wallace received forty-six electoral votes, and came reasonably close to throwing the election to the House. The fact that Wallace’s 13.5 percent of the vote translated to forty-six more electoral votes than those received by Perot, who garnered millions more votes, is itself a data point suggesting flaws in the winner-take-all system. (Or, for a more apples-to-apples comparison, in 1948 Henry Wallace received just 13,000 fewer votes than Strom Thurmond but came away with zero electoral votes to Thurmond’s thirty-nine.) Indeed, in the 1992 election, Bill Clinton received just 46 percent of the vote in California but 100 percent of its electoral votes—a whopping fifty-four, a full 20 percent of the requisite 270 to make him president. This distortion is problematic.

To scrap the winner-take-all allocation of electoral votes in favor of proportional allocation while preserving the Electoral College would not require a constitutional amendment. States already have the authority, under Article II, to determine how electors are chosen. However, some states will be reluctant to allocate electoral votes proportionally if other states remain winner-take-all. For one thing, the leaders of a reliably red state like Texas would hardly consent to an approach that would give the Democratic candidate a substantial number of electors if their counterparts in blue states like California did not do the same. In addition, candidates would arguably be incentivized to pay more attention to the winner-take-all states (at least the swing states among them), where they would get more bang for their campaign buck because a narrow victory or defeat would have greater electoral consequences. For both of these reasons, while individual states have the authority to adopt proportional allocation on their own, realistically a constitutional amendment may be needed.

As it happens, it may be possible to abolish the Electoral College (effectively) without amending the Constitution. Three constitutional scholars, Akhil Amar, Vikram Amar, and Robert Bennett, arrived at the counterintuitive conclusion that we can effectively eliminate the Electoral College without amending the Constitution.¹⁸⁷ All it takes is for a bunch of states (totaling 270 or more electoral votes) to require their electors to cast their votes for the candidate who receives the most votes nationwide.

Beginning in 2006, states began putting into action the approach advocated by the Amars and Bennett, approving what they call the National Popular Vote Interstate Compact (NPVIC). This compact entails states agreeing to have their electors support whichever candidate receives the most votes nationwide, provided enough other states agree to do the same. As long as the states entering this compact comprise 270 or more electoral votes, we will be assured that the winner of the national popular vote becomes president. In early 2019, Colorado became the fourteenth jurisdiction (thirteen states plus the District of Columbia) to enact the NPVIC. Those states combine for 181 electoral votes, leaving the compact just eighty-nine votes short of effectively converting U.S. presidential elections into a nationwide popular vote.

For the most part, support and opposition to NPVIC simply tracks the debate for and against the Electoral College.¹⁸⁸ However, opponents of the NPVIC also make an argument specific to the NPVIC: It is unconstitutional. Certainly, on its face, NPVIC seems like an end-run around the Constitution, which establishes the Electoral College as the means of selecting a president.

This argument is unconvincing. As noted, the Constitution authorizes each state to determine how its electors will be selected. The NPVIC would simply provide a new method of selection—choosing electors who will do the nation’s bidding (as determined by state law). Some opponents of the NPVIC argue that states cannot bind electors to vote a certain way. However, it is already the case that more than half the states bind electors to vote for the winner of their state. Thus legislating against the “faithless elector” already occurs: The NPVIC would simply bind the electors to a different outcome—to vote for the winner of the nation’s popular vote rather than the state’s.

Some opponents claim that the NPVIC violates the Constitution’s provision (in Article I, Section 10, Clause 3) that “No state shall, without the consent of Congress . . . enter into any agreement or compact with another state.” However, whether the NPVIC even constitutes an interstate compact, at least of the sort contemplated by the Constitution, is an open question.¹⁸⁹ Even if the NPVIC is deemed an interstate compact for Article 1 purposes, at most that would mean that the NPVIC requires congressional endorsement.¹⁹⁰

There are, to be sure, other possible objections to NPVIC, including the practical concern that it does not (and cannot) require a runoff between the top two national vote-getters. By effectively abolishing the Electoral College without requiring such a runoff, the NPVIC could increase the risk of a low-plurality president in a multicandidate field. There are many ways of addressing this problem, whose scope lies beyond this book.¹⁹¹

Another potential problem with the NPVIC is that it might not achieve the main goal of Electoral College abolitionists—ensuring equal voting power for all citizens. True, if the NPVIC won out, the votes of citizens in all states would count the same. Some people, however, would not be able to vote at all because of the eligibility requirements in their state. Of course, that is the system we have now. For example, some states permit seventeen-year-olds to vote, whereas others do not; some states make it easier than others to vote early or by absentee ballot. But the numerous differences in state laws’ treatment of prospective voters in the presidential election are considered acceptable in a system in which the presidential election basically involves fifty-one separate elections, the results of which are aggregated in the Electoral College. By contrast, a national popular vote would place all votes in a single pool and supposedly treat all citizens equally. It will fail to do so, however, as long as states have different rules governing voting procedures and eligibility.

Accordingly, the move to achieve a national popular vote, whether by constitutional amendment, interstate compact, or any other means, would ideally be accompanied by the establishment of uniform rules governing presidential elections.¹⁹²