JURIST Guest Columnist William G. Ross of Samford University’s Cumberland School of Law discusses reform of the electoral college system…

Hillary Rodham Clinton’s victory over Donald J. Trump in the popular vote this presidential election has revived perennial proposals for the abolition or reform of the Electoral College. Although there are sound reasons for both its retention and abrogation, no change in the method by which Americans elect their president is likely.

With nearly all votes counted, Clinton is approximately 700,000 votes ahead of Trump among the more than 125 million ballots that Americans cast, a margin of one half of one percent. Clinton has received 47.8 percent of the vote compared with 47.3 percent for Trump. This is the fifth time that the winner of the popular vote has lost an election. The most recent was in 2000, when Albert Gore, Jr. won 543,000 more votes than George W. Bush. The other three times were in 1824, 1876 and 1888.

In the wake of the 2000 election, there was little public criticism of the Electoral College and no organized effort to abolish it. This was surprising since the 2000 election was contested in such a bitter and protracted manner, culminating in the US Supreme Court’s decision in Bush v. Gore, which had the practical effect of handing the election to Bush. The dearth of such efforts was even more surprising since there were serious and bipartisan efforts to abolish the Electoral College after the elections of 1968 and 1976, when a shift of a small number of votes in a few states could have elected a president (Hubert H. Humphrey in 1968 and Gerald R. Ford in 1976) who had not received a plurality of the popular vote. Congress examined the Electoral College in extensive hearings after both elections. In 1969, the House of Representatives voted to abolish the Electoral College by a vote of 338 to 70. In 1979, the Senate voted, 51 to 48, in favor of abolition.

The absence of any movement to abolish the Electoral College after the 2000 election may have reflected political realities that are grounded in simple arithmetic. Its abolition would necessitate a constitutional amendment, which would require the assent of two-thirds of both Houses of Congress and three-quarters of the state legislatures. This difficult gauntlet helps to explain why only seventeen amendments have been added to the Constitution since the first ten amendments in 1791. An amendment to abolish the Electoral College would be particularly difficult to enact since approximately one-third of the states benefit from its retention insofar as their percentage of the nation’s population is less than their share of Electoral College votes. Since each state’s electoral vote equals its representation in the Senate and the House of Representatives and each state has two senators regardless of population, the Electoral College automatically provides less populous states with disproportionate clout in electing a president. In the seven states that have three electoral votes, one voter’s impact on the Electoral College is approximately four times greater than one voter’s impact in California, which has 55 electoral votes.

Recognizing the difficulty and perhaps the futility of trying to abolish the Electoral College, many of its critics since 2000 have embraced a new expedient, the so-called National Popular Interstate Compact (NPVIC) [PDF]. This proposal would permit states to enter into an agreement with other states in advance of an election to award their electoral votes to the candidate who received a plurality of the national popular vote. The compact would not take effect until states subscribing to it had a majority of electoral votes, and states could not withdraw from it during the six months between July 20 of a presidential election year and January 20 of the following year, the constitutionally mandated date of the president’s inauguration. Ten states with 165 electoral votes have voted to join the compact.

As I explained in greater detail in a 2012 JURIST commentary, NPVIC is fraught with practical and constitutional perils. Although Article II, Section I of the Constitution provides that states shall appoint electors “in such Manner as the Legislature thereof may direct,” this section must be read in context and in conjunction with other provisions of the Constitution.

The principal constitutional impediment may be the “Compact Clause” in Article I, Section 10 of the Constitution, which provides that,

“No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State.”

Although advocates of NPVIC contend that it would not require congressional approval because it would not encroach upon national supremacy, the compact could affect the federal government by changing the result of a presidential election. NPVIC also is vulnerable under the Compact Clause insofar as it would interfere with the rights of states that did not subscribe to it. Although Congress could provide its consent by majority vote rather than by the two-thirds vote that is required for a constitutional amendment, congressional support would be far from inevitable.

Perhaps the principal practical problem with NPVIC is the apparent lack of means to ensure that states would actually abide by its provisions if this meant awarding their electoral votes to a candidate opposed by a majority of the state’s legislators. The many constitutional and practical objections to NPVIC suggest that a constitutional amendment to abolish the Electoral College is a better means of assuring that the winner of the popular vote always is elected president.

One way to reform the Electoral College to make it more sensitive to the popular will is to ameliorate its “winner-take-all” aspects without interfering with its federalist structure. States could provide for the division of their electoral votes by allocating a separate electoral vote to each congressional district, while having the state-winner receive the two electoral votes that are based upon their representation in the Senate. Two states, Nebraska and Maine, have adopted this procedure. This option, however, is unlikely to spread to other states because state legislatures in states that are dominated by one party are unlikely to approve a measure that could permit the other party to siphon off votes. Democrats have particular reason to oppose the procedure since Democratic candidates tend to carry the states that have large blocs of electoral votes.

Public opinion polls have consistently indicated strong bipartisan support for abolition of the Electoral College. A Washington Post poll [PDF] in 2007, for example, found that 78 percent of Democrats, 60 percent of Republicans and 73 percent of independents favored its abolition. Democrats may tend to favor the retention of the Electoral College because African American and Latino voters are heavily concentrated in states that have large numbers of electoral votes. Republicans may have more incentives to retain the Electoral College because only three of the small states (Rhode Island, Delaware, and Hawaii) are heavily Democratic, while six of the least populous states (Alaska, Montana, Wyoming, Idaho, North Dakota, and South Dakota) are heavily Republican. The disproportionate concentration of Democrats in many of the most populous states, particularly California, New York, and Illinois, also may discourage Republicans from supporting changes in the presidential election system. Moreover, the fact that the Electoral College has defeated Democrats who have won the popular vote in two recent elections also might chill support among Republicans for both NPVIC and the abolition of the Electoral College even though a candidate of either party could win the popular vote and lose the electoral vote. Abolition of the Electoral College also would run afoul of the strong Republican emphasis on states’ rights and federalism. Although NPVIC has received bipartisan support, it has received legislative approval mostly in heavily Democratic states.

Republican incentives for retaining the Electoral College in its present form means that its reform or abolition is particularly unlikely now that Republicans dominate the federal and state governments. Following the recent election, Republicans will have 51 or 52 seats in the U.S. Senate and at least 238 of the 435 seats in the U.S. House of Representatives and will control at least 66 of the 99 state legislative chambers. Thirty-three of the governors will be Republican. This means that it is unlikely that the Senate or House even will convene committees to study the Electoral College, as they did after the 1968 and 1976 elections.

The idea of abolishing or circumventing the Electoral College has strong popular appeal because in many ways it is a relic of a time when voting was mostly limited to propertied white males. Its elimination would be consistent with the expansion of popular democracy, which has included the enfranchisement of men without property in the early 19th Century; the prohibition against racial discrimination in voting in the Fifteenth Amendment (1870); selection of U.S. senators by direct popular vote rather than election by state legislatures in the Seventeenth Amendment (1913); women’s suffrage in the Nineteenth Amendment (1920); the enfranchisement of residents of the District of Columbia in presidential elections in the Twenty-Third Amendment (1961); the abolition of poll taxes in federal elections in the Twenty-Fourth Amendment (1964) and in state elections by the Supreme Court’s decision in Harper v. Board of Elections (1966); the Supreme Court’s invalidation of disparity in the population of voting districts in its “one person, one vote” decisions during the 1960s; federal intervention to prevent racial discrimination in the Voting Rights Act of 1965; and the lowering of the voting age to eighteen in the Twenty-Sixth Amendment in 1971.

Political and constitutional developments during the past few years, however, have tended to discourage the extension of the franchise. The Supreme Court’s 2013 decision in Shelby County v. Holder invalidated a key provision of the Voting Rights Act of 1965 and raised questions about the authority of Congress to enact legislation to discourage racial discrimination in voting. The enactment of voter identification laws in many states also may have had the effect of discouraging the exercise of the franchise by qualified voters. Although the U.S. Supreme Court responded favorably to ID laws in Crawford v. Marion County in 2008, several lower federal courts recently have invalidated other laws in cases that may go before the Court.

Perhaps the best practical argument against abolition of the Electoral College or adoption of NPVIC is the apparent difficulty of a national recount of votes in a close and contested election. This problem is more than hypothetical because the popular vote disparity between the candidates has been quite thin in six of the past fifteen presidential elections (1960, 1968, 1976, 2000, 2004, and 2016). Such a recount might likely replicate on a national scale the nightmarish controversies of 2000 about how to count votes in Florida, generating a blizzard of acrimonious and protracted lawsuits about the technicalities of election laws in perhaps all fifty states and the District of Columbia. Differences among the states in their recount procedures could also raise troubling questions about equal protection under the reasoning of Bush v. Gore, which would likely place the Supreme Court in the awkward position of deciding yet another presidential election and further diminish public confidence in its impartiality.

Federalism probably is the best constitutional argument against abolition of the Electoral College by constitutional amendment or the adoption of NPVIC. Such measures arguably would interfere with the federalist character of the nation as envisioned by the Framers. Preservation of the states as states within the structure of the federal system is so central to the Constitution that its only unamendable provision is its guaranty that each state shall have equal representation in the Senate. Continuation of the linkage between electoral votes and representation in the Senate would help to preserve the separate identity of the states within the federal system.

The election of a president who has failed to receive more votes than his opponent naturally seems unfair to supporters of the defeated candidate and provides a source of some embarrassment to a nation that prides itself on its democracy. Although abolition of the Electoral College would be consistent with the extension of democracy through expansion of the franchise throughout most of American history, its retention finds support in federalism and the practical and constitutional difficulties of achieving an accurate nationwide vote in a contested election. At the present time, however, all of these considerations may be irrelevant since there seems to be insufficient political motivation for reform.

William G. Ross is the Lucille Stewart Beeson Professor of Law at Samford University’s Cumberland School of Law. He has published several books and many articles about constitutional history and various aspects of constitutional law. Professor Ross has written extensively on legal ethics, American legal history, and the federal judicial appointments process.

Suggested citation: William G. Ross, Abolition or Reform of Electoral College Unlikely, JURIST – Forum, Nov. 12, 2016, http://jurist.org/forum/2016/11/william-ross-despite-problems-electoral-college-is-likely-here-to-stay.php.