Every four years, the nation determines who the next the president of the United States will be on the first Monday after the second Wednesday of December. This year, it is next Monday, Dec. 19. When citizens go to the polls in a presidential election, they may think they are voting for the candidate of their choice, but they are not. They are voting for some unnamed person, designated in Article II of the Constitution as an elector, who has pledged to support one of the candidates, though the choice of electors varies from state to state. (The term “Electoral College,” or more formally the college of electors, was not written into law until 1845.)
The number of electoral votes totals 538, which is equal to the 435 members of the House of Representatives, 100 senators, and three delegates from Washington, D.C., the last of these a result of the 23rd Amendment, ratified in 1961. This means that the winning candidate must receive 270 electoral votes, a majority. This came about because of the so-called Connecticut Compromise at the 1787 Constitutional Convention, when small states like Delaware were afraid of being outvoted by the more populous states like Virginia. The result was that Delaware gained 1.6 times the power of voting that Virginia had: It was those two senators from each state, no matter how large or small, that did it.
Today, with a population of about 500,000 people, Wyoming with three electoral votes has about 3.6 times the voting power of a state like California, with a population of almost 40 million. Again, it’s the two senators that allow this lopsided outcome.
More than that, half of the U.S. population lives in just 146 counties out of some 3,056. Hillary Clinton’s votes came in areas that had a population density more than two times those of Donald Trump. Journalist Josh Kron observed in The Atlantic a few years back that “virtually every major city (100,000-plus population) in the United States of America has a different outlook from the less populous areas that are closest to it. The difference is no longer about where people live, it’s about how people live: in spread-out, open, low-density privacy — or amid rough-and-tumble, in-your-face population density and diverse communities that enforce a lower common denominator of tolerance among inhabitants.”
Most states have a winner-take-all requirement, which means that the candidate who wins the popular vote gets all of the electoral votes, even if some congressional districts in that state had a majority of popular votes for another candidate. Take Maryland, as an example, which had a split vote (in Massachusetts, Secretary Clinton won all the counties). In Maryland, Secretary Clinton won a majority of the popular vote, but actually lost in several counties to Mr. Trump. But in Maryland, which has 10 electoral votes (two senators, eight representatives), all 10 went to Secretary Clinton.
Only Maine and Nebraska allow for split electoral votes.
The bottom line is this: When we vote for a presidential candidate, we are really voting for some person unknown to us who has pledged to vote for the candidate who wins the state’s popular vote. Does this mean that electors are obliged to do so?
In fact, they are not: The framers of the Constitution created the Electoral College simply because they did not trust us. James Madison and his colleagues at the Constitutional Convention thought that ordinary people were creatures of passion and self-interest, not reason and public spirit, and that we did not have the moral character, education, or intellect to vote directly for a president.
Or even United States senators: The framers created a system that allowed us to vote for state legislators who, in turn, elected the senators. This did not change until 1913, when the 17th Amendment was ratified, just over a mere 100 years ago.
Could electors decide to vote for a candidate to whom they have not pledged their allegiance? Specifically, could a Trump elector vote for Secretary Clinton, Mitt Romney, Jill Stein, or Tom Brady? The answer is yes. The Constitution meant for the electors to be completely independent actors who have the requisite intellectual capability of acting on their own decisionmaking. Of course, many states frown on this kind of behavior and have penalties on the books, mostly fines, but sanctions against the “reckless,” “faithless,” or “unfaithful” have never been enforced. Some states disqualify faithless electoral votes, but again, this has never happened.
With Donald Trump’s 306 to Hillary Clinton’s 232 electoral votes, he won the election despite the fact that she won 2.5 million more popular votes than he did. Right?
Not so fast. Some people are attempting to persuade electors pledged to Mr. Trump to vote for someone other than him. Are there enough of these faithless electors to do just that? The answer is that while it has never happened before, it is mathematically possible if Mrs. Clinton were to win 38 faithless electoral votes. That, of course, would lead to cries from the Trump camp that the election was indeed not only rigged but crooked. We will have to wait until late Monday or more likely Tuesday next week to see whether 38 electors move from Trump to Clinton or someone else.
In any event, have we now reached the point where we might be able to do away with the Electoral College, just as we did away with indirect election of U.S. senators in 1913? The answer is that it would take a constitutional amendment to do so: This requires both houses of Congress to vote in favor by a two-thirds vote, and then three-quarters of the states to ratify it.
When was the last time we saw 292 representatives and 67 senators join together to vote for anything? Or the last time 34 states did? Bear in mind, it would require several of the less populated states noted above to ratify it. Were this to happen, they might well see their electoral clout diminish in a presidential election. So, most likely, an amendment is off the table.
What if there were an electoral tie? That has happened in the past, and the Constitution requires that the House decide who wins the presidency, and the Senate the vice presidency. The current House, that is, which means that Donald Trump undoubtedly would receive a majority of House votes, given the Republican majority, 247 to 187. The Republicans also control the Senate, 54 to 44, with two independents.
One alternative to all of this is the National Popular Vote Interstate Compact. It began in 2007 when the first state, Maryland, voted to join. As a member of the compact, if a state joins, it would promise all of its electoral votes to the national winner of the popular vote. This process will go into effect when states that make up a minimum of 270 electoral votes ratify the compact. As of the moment, 10 states, including Massachusetts, have joined the compact along with the District of Columbia: Every one of them voted for Hillary Clinton.
But, in fact, they are mostly blue states, the very states that have the most to gain if the popular vote were to elect the president. After all, Democratic candidates for president have won more popular votes than Republicans have in the last four of five elections. And they have won the White House only twice.
So, for the present, we seem to be stuck with the Electoral College, and must await the outcome of its vote on Monday to see who in fact will occupy the White House after Jan. 20, 2017.
Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University. His most recent book, published this year, is “American Constitutional History: A Brief Introduction.”