Understanding the Electoral College with Kermit Roosevelt

Every four years – most recently, last month – the Electoral College becomes the focus of obsessive attention as presidential candidates vie to reach the winning number of 270 electoral votes, and many of us scratch our heads over a system that taxes the powers of both math and logic. To help elucidate what the Electoral College is, why we still have it and whether it’s working, City & State turned to constitutional scholar Kermit Roosevelt III, the David Berger Professor for the Administration of Justice at the University of Pennsylvania’s Carey Law School.

This conversation has been edited for length and clarity.

What is the simplest way of explaining what the Electoral College is and why we have it?

Well, there’s no really simple way, because it’s a bit counterintuitive. But I would say that when you vote for president, you’re not actually voting for president. You’re voting for a slate of electors: After the people cast their votes, the electors cast their votes in the Electoral College, and that’s what determines who actually becomes president.

How long have we had this system?

This is actually in the Constitution, although certain aspects of how we do things now are not in the Constitution and have evolved over the years. 

One of the things that surprises people the most is that there’s actually no right to have individuals vote for these electors. The Constitution says, “Each state shall appoint, in such manner as the legislature thereof may direct, a certain number of electors.” So the legislature could decide, “We’re going to pick the electors ourselves. The people don’t get to vote.” And in fact, most states did that at the founding. Then, relatively quickly, most of them moved to a popular vote.

So there’s no individual right to vote enshrined in the Constitution?

Yeah, there’s no individual right to vote. We’ve added amendments that put in non-discrimination rules … But if the state wants to say, “We’re going to decide who gets our electorate in some different way,” they can do that.

Interestingly, that contains the possibility for a sort of end run around the Electoral College. If we’re trying to get to a national popular vote without amending the Constitution, it’s the power of the state – to appoint electors however they want – that we would actually use to get us there.

Many readers will be surprised that it is not our constitutional right to vote individually for President. 

So maybe they’d also be surprised to know that the winner-take-all system is not in our Constitution, either. States don’t have to award all of their electoral votes to the same candidate; they could split them in different ways – like Maine and Nebraska.

How has the Electoral College changed since its inception?

Since the country's founding, it has changed over time, because there are provisions in the Constitution that allow for a certain amount of flexibility in how states do things. 

It changed relatively early in that most states moved to a popular vote, because Americans do like democracy; Americans think that the people should have a voice … Most states pretty quickly moved to a system where they would let the people of the state vote, and then the winner of the state would get those electors. 

The winner-take-all system emerged very early, too, because of partisan politics and the interests of individual states. To take a really old example: If you’re the Federalist Party, and you’re in control of Virginia, and you’re going to get 55% of the votes in Virginia, then you’ve got two options for what you’re going to do with your electors. 

You could say the candidate winning Virginia gets all our electoral votes. Or you could say, we’re going to do it on a proportional basis, and the candidate who wins Virginia gets 55% of our votes. But you’re the Federalist Party; you want to elect the Federalist candidate, so you want all of Virginia’s votes to go to that person. 

The winner-take-all system is appealing to whichever party is in power in a state. It’s less appealing to the minority. But of course, they don’t have the power to change it, right? In order to maximize their influence on the election, states have this natural incentive to adopt a winner-take-all system.

What are the pluses and minuses of a statewide popular vote system?

A statewide popular vote is better than having the legislature pick, but I’m not sure there’s that much else that can be said in favor of it. 

The Electoral College distorts democracy in a couple of different ways, and it’s hard to pick which is the worst. But one is, it gives some people more voice than others. That’s the small-state bias – each state gets electors based on its number of representatives, which is based on population … You need a significantly smaller number of popular votes in Wyoming to get one elector than you do in California, so the votes of people in Wyoming count more. 

Maybe the bigger problem is the winner-take-all system … That distorts the campaigning, because people focus only on the swing states where both sides have a chance of winning. In 2016, which state did (Donald Trump) get the most votes in? California. There were 3 million people voting for Trump in California, but their voices were entirely silent.

Trump has no incentive, really, to treat California as anything but an enemy because he can't win. And the Democratic candidate has no incentive to pay any attention to those 3 million Trump voters in California … There are lots of people with different opinions in (solidly red or blue) states that we should care about, but we don't.

Are there any benefits to the system of an Electoral College?

I don’t really think so. And if you look at the history, there are basically three reasons for having the Electoral College. 

The framers thought that the average voter wouldn’t be well enough informed … But the problem of the low-information voter has pretty much gone away; political parties solved this. There’s a letter next to each candidate’s name that will allow me to make the choice, because the parties stand for different packages of policies and ideologies, and I know which one I believe in. 

The second reason is if you did a nationwide popular vote, states would face pressure to let more people vote … If you let women vote, suddenly you’ve doubled the number of state residents casting ballots. The founders didn’t want that to happen, because soon everyone’s going to be letting women vote – and they didn’t want pressure to let more people vote. 

The third reason is slavery. The slave states insisted on getting some voice in the federal government based on the people they enslaved. The three-fifths compromise gave them representatives based on their free population and three-fifths of the enslaved population … You carry that pro-slavery political tilt into the selection of the president, too – and the slave states wanted that. As was often the case at the Constitutional Convention, they insisted on it. 

So the Electoral College allows a certain degree of popular voting, which Americans like because it feels democratic, but it also suppresses a true popular vote, which is threatening?

Yeah, the Constitution is pretty democratic by the standards of the 18th century. At the same time, it’s not that democratic by modern standards, and it was designed in part to avoid pressures to move to more democratic systems. 

So is there a way to adapt it to the present day, or another solution that you might propose? 

The simple answer is: Amend the Constitution. But that’s very hard. 

The easier way to do it would be what’s called the National Popular Vote Interstate Compact. A state legislature could say, we’re going to award all of our electors to whoever wins the national popular vote. If states that control 270 electoral votes do that, then whoever wins the national popular vote wins the election.

It’s underway; I think there are about 185 electoral votes pledged to this. It’s not going to take effect unless there are 270 – so it’s a movement, but it’s slowed in recent years because the Electoral College has started looking like it has a partisan tilt. 

The big problem to any kind of structural change in the American system is that even if it seems like a good reform that would make the system work better, on the whole it’s probably going to advantage one party … and right now, the Electoral College seems to be favoring the Republicans.