September 2020

By Karen A. Tramontano

As the 2020 U.S. presidential election approaches, many of our colleagues across Europe, Asia, Latin America, and Africa have asked: “What is the Electoral College”? This question is always followed by: “Why aren’t U.S. Presidents elected by popular vote?” The latter question is especially poignant when five former Presidential candidates lost the popular vote but nonetheless went on to become President with the most recent being George W. Bush (2000) and Donald J. Trump (2016). [1]

The Framers[2] of the U.S. Constitution were divided about how the U.S. President should be elected. Some believed the U.S. Congress should select the President, while others thought the Presidency should be free from Congressional influence. Some Framers were concerned that citizens, many of who were not educated could not handle the responsibility of electing the President and that “mob rule” would result. Others were concerned that a populist President would be far too powerful and that his power would corrupt the country and undermine the young democracy.

The compromise the Framers’ reached was to create “electors.” The vote by the “electors” would reflect the majority of the votes cast in their state but the popular vote would not determine the outcome of the Presidential contest. Instead, the number of “electors” assigned to each state (electoral votes) would determine the winner. The number of “electors” was based on the total number of elected Representatives serving in the U.S. House and Senate. This system, known as the Electoral College, governs the election of the U.S. President today.

Moreover, because the number of “electors” was based on the apportionment of U.S. Representatives and because the Framers based apportionment on the so-called “Three-Fifths Compromise of 1787”, the Electoral College is directly connected to the institution of U.S. slavery. The Three-Fifths Compromise arose because delegates from slaveholding and non-slaveholding states feared losing political power. Delegates from slaveholding states wanted slaves to be counted for the apportionment of representation in Congress, while delegates from non-slaveholding states did not want slaves to be counted. The compromise: slaves would be counted as “three-fifths” to determine “apportionment”—the number of elected Representatives from each state in Congress.

The effects of this slave-era system remain and continue to set the parameters by which Presidents are elected. While apportionment is now based on the total number of persons residing in the state, the Electoral College continues to determine Presidential outcomes regardless of the national popular vote. Moreover, with every state having two Senators—regardless of population—the Electoral College continues to ensure that small states have voting power that is disproportionate to their population.

Why does the Electoral College matter in the upcoming 2020 Presidential election? Even before a single vote is cast, we know for which candidate many of the states will cast their Electoral College votes. Voters in about 34 of the 50 states so overwhelming support either former Vice President Biden or President Trump that we can safely predict the number of Electoral College votes each candidate will receive well before the election. For example, California and New York electors will cast votes for Mr. Biden, while Wyoming and Idaho will cast votes for President Trump. As a result, we can safely predict that Biden will begin the race with 212 Electoral College votes while Trump will begin with 115 votes. To be elected the 46th President of the United States, a candidate must receive a majority of the Electoral College votes cast—270.

With the results in 34 states known, there are at least 16 states where the election’s outcome remains in doubt. These states are known as “battleground states.” Winning as many battleground states as possible is essential to winning the election. Typically, candidates—including sitting presidents—visit each battleground state multiple times, holding rallies and buying ads on local TV and radio. With COVID-19, Presidential campaigns have had to restrict in-person rallies and rely on other forms of engagement to rally their voters.

In recent years, Presidential campaigns have relied more heavily on social media platforms to reach voters. As a result, these platforms have become another battleground for campaign ads. More importantly, as seen in the 2016 election, foreign interference by state actors such as Russia used social media platforms to seed disinformation. A recent report by intelligence officials has found that Russia and other states will attempt to influence the 2020 Presidential election again.

The suitability of the Constitutionally mandated Electoral College will continue to be a matter of vigorous debate. Those who want to see the Electoral College removed from the U.S. Constitution argue that the current system undermines public confidence in U.S. Presidential elections because the result does not reflect the voters’ choice. Defenders of the status quo believe the Electoral College maintains the balance of power among states that the Framers sought. In 54 days, we will know who the next President of the United States will be. Once in office, the 47th President will have to confront the raging pandemic, demands for racial justice, and an expanding economic crisis.

Given the ongoing debate about the Electoral College and these crises, it is essential that the results of the 2020 Presidential election be determined by a majority of U.S. voters and not merely the Electoral College. After more than 200 years, U.S. voters deserve to have their voice and their vote count.

[1] The other three Presidents who lost the popular vote were: John Quincy Adams (1824), Rutherford B. Hayes (1876), and Benjamin Harrison (1888).

[2] The Framers of the U.S. Constitution were men who represented the original 13 colonies and served as delegates to the Constitutional Convention of 1787.