Is the Electoral College Anti-Democratic? : Consider This from NPR The Electoral Count Reform Act is a bipartisan response to the January 6th attack on the U.S. Capitol where rioters and the former president attempted to pressure then-Vice President Mike Pence into subverting the election count.

But some critics think it doesn't go far enough and argue that real reform would mean making significant changes to the Electoral College and to the winner take all allotment of electoral votes.

Host Michel Martin talks to Stanford Historian Jonathan Gienapp about the origins of the Electoral College, and Elie Mystal, justice correspondent at The Nation.

In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.

Email us at considerthis@npr.org.

Is the Electoral College Anti-Democratic?

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MITCH MCCONNELL: This afternoon, those of us on the Rules Committee will markup a bipartisan package that updates to the Electoral Count Act of 1887.

MICHEL MARTIN, HOST:

That was Senate Republican Leader Mitch McConnell earlier this week speaking on the Senate floor. He was talking about a bill to change the way presidential elections are certified.

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MCCONNELL: I'll proudly support the legislation provided that nothing more than technical changes are made to its current form.

MARTIN: It sounds like small bore technical stuff, but at a time when Democrats and Republicans are generally seen as locked in a perpetual standoff, the Electoral Count Reform Act stands out as one of the few bipartisan responses to the January 6 mob attack on the U.S. Capitol, where rioters and the former president tried to intimidate then-Vice President Mike Pence into overturning the election count. Here's CNN's Anderson Cooper talking to CBS late night talk show host Stephen Colbert.

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ANDERSON COOPER: The fact that Mitch McConnell has - is backing this is a big deal. It'll just clarify things that weren't so clear on January 6 so that a thing like January 6 makes it harder for it to happen again. It'll make sure people realize...

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COOPER: ...That the role of the vice president is purely ceremonial.

MARTIN: And while enough lawmakers from both parties are moving to agreement on this bill, they're still divided on whether and to what extent federal elections should be modernized in other ways. For a growing number of critics, the process for selecting the president is an 18th century relic that excludes the voices of too many voters. Many say it's time to throw it out.

COREY ROBIN: If you were to ask me what would be my ideal scenario, I would say, first of all, you have to get rid of the Electoral College. It really is a stumbling block on the road to majoritarian democracy.

MARTIN: That was Corey Robin, a professor of political science at Brooklyn College and the CUNY Graduate Center. A recent Gallup poll said he is not alone in that thinking. Nearly two-thirds of Americans think the Electoral College should be abolished altogether.

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MARTIN: CONSIDER THIS - in a country that prides itself on majority rule as one of the fundamental tenets of American democracy, is the way we elect our president anti-democratic? That's coming up. From NPR, I'm Michel Martin. It's Saturday, October 1.

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MARTIN: This isn't the first time the Electoral College has become a flashpoint in our debate over how our government functions - it's just the latest. In 2000, when George W. Bush won the presidency for the first time, and again in 2016 when Donald Trump was the victor, it became clear that it is possible to win the presidency without winning the popular vote. So why did the founders, who fought a war to free themselves from the monarchy, agree to the current system instead of just letting a majority of citizens decide who would be president?

JONATHAN GIENAPP: They basically won by default. There - it wasn't as though people at the Constitutional Convention were strongly in favor of the Electoral College. It was just the main options that they actually debated kept getting them nowhere, so they fell back on this compromise option that - part of its success was owed to the fact that people weren't really sure how it would work in practice, so it was harder to criticize.

MARTIN: Jonathan Gienapp is an associate professor of history at Stanford University. He says when delegates to the Constitutional Convention were trying to figure out how people would vote, they basically boiled it down to three options - congress would choose the president. A national popular vote among eligible voters would decide the president. Or...

GIENAPP: The third choice fell sort of in between, which was to have a system of electors at the state level that would then choose the president.

MARTIN: You heard that right. The Electoral College we have today was considered the least bad option. But what professor Gienapp contends is that the aspect of this whole thing that infuriates people today isn't so much the idea of choosing electors to choose the president but rather how the states decide to award those electors. Nearly all of them make it winner-take-all. So if you get 100% of the vote or 51% of the vote, it doesn't matter. In most states, you get the whole deal. And he says it doesn't have to be that way.

GIENAPP: The primary feature of the Electoral College that has determined those outcomes is not the fact that we elect presidents based on state-based electors but the entirely separate fact, which is not required by the Constitution at all, that virtually every state awards their electoral votes on a winner-take-all model.

MARTIN: He says awarding all of its electors to a winning presidential candidate can result in presidents that the majority of Americans don't support.

GIENAPP: So you might ask yourself, when one candidate wins Florida with 51% of the vote, why does that candidate get 100% of the electoral votes in Florida? I mean, that's not how we do congressional elections. The party that wins 51% doesn't get 100% of the seats in the House of Representatives from that state.

MARTIN: Critics say these winner-take-all systems disenfranchise what could be millions of voters in a state who supported the losing candidates. In Alabama, that might be the Democrat, but in California, that could be the Republican. And again, professor Gienapp says this is nowhere in the Constitution. Congress could fix this.

GIENAPP: If electoral votes were distributed proportionally rather than winner-take-all, George W. Bush would not have won the election in 2000. Donald Trump would not have won the election in 2016. It didn't just - it wasn't just that there's an Electoral College. It was that because Donald Trump defeated Hillary Clinton by razor-thin margins in Pennsylvania, Michigan and Wisconsin, he got 100% of the electoral votes in those states. None of that is required by the Constitution. None of that requires a constitutional fix. All of that can be changed through ordinary legislation.

MARTIN: Legal journalist Elie Mystal makes another argument. He says because states award candidates a disproportionate amount of electors, national parties and politicians with national aspirations are incentivized to pay attention only to states they are likely to win.

ELIE MYSTAL: People will say the Electoral College protects the interests of small states and small interests that would be overpowered in the national popular vote, and that is simply not true.

MARTIN: Do political parties respond differently to states who traditionally don't vote for them even during times of crisis like natural disasters? That's coming up.

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MYSTAL: So I wouldn't really think of this as an Electoral College Reform Act, even though that's what they've named it because Washington is good at naming things. I would think of it as a dumb coup prevention act.

MARTIN: Elie Mystal is the justice correspondent for The Nation and author of the book "Allow Me To Retort: A Black Guy's Guide To The Constitution." I asked him for his take on the Electoral Count Reform Act - the effort to make it harder to overthrow the electoral vote count and thereby overthrow the election results, as rioters and the former president tried to do during the January 6 mob attack. I also asked him for his general view on the Electoral College.

MYSTAL: This act simply, to my mind, puts it in stark relief that this idea that Mike Pence gets to decide whether or not he gets to remain - still be vice president is not something that we're going to do in this country. So it's not - it's a - it's fine. It's not a bad bill, but it doesn't actually get to, I think, the deeper heart of the problem with the Electoral College and with how we run federal elections in this country.

MARTIN: Let's also recognize that you have a very distinct point of view about these issues and others. And, you know, there are those who will disagree with your overall sort of point of view about these issues. But just from your perspective, our sort of underlying concept of ourselves as a country is that this is a country which believes in majority rule. And do you really believe - was that the underlying principle underlying how our government is organized? Is it really...

MYSTAL: No.

MARTIN: ...Majority rule, or is it something else? And if it's something else, what is that?

MYSTAL: No, the people who founded this country and the people who constantly want us to go back to their vision of the country did not believe a majority ruled them - believed in majority white male rule. the most obvious point of that is that they didn't let women vote. So we weren't talking about a majority of the people. We were talking about a majority of men. And then quite obviously, they didn't let nonwhite people vote. And, you know, and depending on the voting requirements in every individual state, they might not even have let poor people voted - like, poor white men in many states also had their voting rights, if not explicitly prohibited, significantly limited.

MARTIN: You wrote an interesting - you had a really fascinating Twitter thread recently about how you see this playing out today. I think one of the things, obviously, that I think many people are familiar with is the fact that two presidential elections in this century have resulted in candidates winning who actually lost the popular vote - that was George W. Bush in 2000 and Donald Trump in 2016. So that's something that I think has gotten a lot of people's attention. But you wrote this thread saying, here's a way to look at the Electoral College. We will see an outpouring of support for our friends in Florida as they face the hurricane. And that support will come from both sides, in part because both sides see Florida as winnable. How do you see the Electoral College math playing out in something like disaster relief? Talk more about that.

MYSTAL: Right. So it's the Electoral - people will say the Electoral College protects the interests of small states and small interests that would be overpowered in a national popular vote, and that is simply not true. The Electoral College protects the interests not of small states and not of big states, obviously, but of states that are marginal, states that are purple - as we like to call them now in the political context of our times - states that are close. It protects the interests of those states because it's a winner-take-all system. So if you win Florida by just one point, you get 100% of Florida's Electoral College votes, right? If it was a straight popular election, a 1% win in Florida wouldn't actually mean that much. But since Florida has a lot of people living in it and you get 100% of its Electoral College votes, well, then every sentient blade of grass in Florida becomes absolutely important.

And so you'll see politicians fight to the mattresses over Florida. And obviously, in a situation where people in Florida are actually struggling, where people in Florida are actually facing a natural disaster, you're going to see both parties kind of run to figure out who can be shown to be protecting the interests of Florida the most. That is an out - that is a result of the Electoral College.

But then flip the situation around. Let's look at California. During the Trump administration - during every summer now pretty much with global warming - California is beset by wildfires. We're talking about major natural disasters happening in California pretty much seasonally at this point because of global warming. Where is the both party outpouring of support for California? You don't see it. You don't see it because the Republican Party has no interest in helping voters in California because Republicans aren't going to win California. The 100% of California's Electoral College votes are going to most likely go to the Democratic candidate for president.

And that means that when you have a Republican president, as we had with Donald Trump, he could just ignore California, even though there are tons and tons and tons of voters in California, even though people like to say, oh, the Electoral College - it helps rural interests. There are tons and tons and tons of farmers in California. Why? Because the Electoral College creates perverse incentives around what states we care about, not what people we care about.

MARTIN: What, in your view, is the best way to address the situation today, where the general public shows that the majority of people are at odds with a number of very - with the stances taken by kind of governing elites on a number of big political issues? Like what's your view? I take it you favor the elimination of the Electoral College.

MYSTAL: We should vote on it. We should at least have that option, right? We should at least have the option of having everybody vote and have everybody's votes counted equally. So it's not just the elimination of the Electoral College - although, yes, it starts with the elimination of the Electoral College. It includes the elimination of many of the recent Republican attempts at voter suppression. It includes the elimination of many of the recent Republican attempts at gerrymandering. It's to get us back to something approaching one person, one vote. And if we did that - which - see, that's the thing. We have never actually tried - because we haven't actually tried it yet. We haven't actually tried having a system where everybody who wants to vote can vote and have - and be assured their votes will count equally with everybody else. So we should try having a democracy first and then see what problems linger after that.

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MARTIN: That was Elie Mystal. He is an attorney and the justice correspondent for The Nation, and he's the author of "Allow Me To Retort: A Black Guy's Guide To The Constitution." It's CONSIDER THIS from NPR. I'm Michel Martin.

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