If presidential elections were decided by popular vote instead of the Electoral College, Al Gore would have been elected president in 2000. How we choose a president profoundly impacts how campaigns are run, the importance of swing states and an election’s outcome. It’s certainly no surprise that the Electoral College vs. popular vote controversy has sparked considerable debate. As the issue surfaces heading into November, is it time to graduate from the Founding Father's Electoral College concept, or are popularity contests no way to choose a president?
The shortcomings of the current system stem from the winner-take-all rule that awards all of a state’s electoral votes to the candidate who receives the most popular votes in each state.
The U.S. Constitution does not specify in detail how the President is to be elected but, instead, gives the states exclusive and plenary (complete) control over the manner of awarding their electoral votes. Article II of the U.S. Constitution says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
The winner-take-all rule (currently used by 48 states) is not in the U.S. Constitution. The Founding Fathers did not advocate the winner-take-all rule in the debates of the Constitutional Convention of the Federalist Papers. When the Founding Fathers went back to their states to organize the nation’s first presidential election in 1789, only three states used the “winner-take-all” rule. All three states abandoned it by 1800 (but later re-adopted it). The winner-take-all rule is entirely a matter of state law.
Massachusetts, for example, exercised its power to change its system of awarding its electoral votes on 10 different occasions. In 1789, the legislature effectively chose the state’s presidential electors. Then, in 1792, the voters were allowed to choose the presidential electors in 4 multi-member regional districts. Then, the voters picked electors by congressional districts. Then, the legislature took back the power for itself. Later, the voters picked electors using the statewide winner-take-all rule. Then, the legislature again picked electors, followed by the voters using districts, followed by legislative choice, followed again by the voters using districts, and, finally, the present-day statewide winner-take-all rule.
The statewide winner-take-all rule did not come into widespread use because of any amendment to the U.S. Constitution. The winner-take-all rule may be changed in the same way that it was adopted, namely by changing state law.
The National Popular Vote bill (currently pending in 47 state legislatures) would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538). When the National Popular Vote bill takes effect, all of the electoral votes from the enacting states would be awarded, as a bloc, to the presidential candidate who receives the most popular votes in all 50 states (and DC). Thus, the National Popular Vote bill would guarantee an Electoral College majority (hence the Presidency) to the candidate who receives the most votes in all 50 states (and DC).
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