The Electoral College History and What It Means for Future Elections

Produced by Paul Hjellming

In this podcast, part of FindLaw.com's Don't Judge Me, Senior Writer Kellie Pantekoek interviews Professor David Schultz on the electoral college, including the recent decision by the U.S. Supreme Court on faithless electors.

David Schultz is a professor of law specializing in election law at the University of Minnesota Law School and the University of St. Thomas, and a professor of political science at Hamline University in the Twin Cities. He is a nationally-recognized expert on government election law and author of over 30 books.

Kellie Pantekoek: Presidential elections in the United States are not determined by popular vote. Instead, electors from each state vote in what is called the electoral college process. Today, Professor Schultz is going to talk to us about the electoral college, including why it was created, how it works, and whether or not it still makes sense for our modern government.

Thank you so much for joining us, Professor Schultz.

David Schultz: It's my pleasure. Thank you for having me.

Kellie Pantekoek: My first question for you is: What inspired your research into the electoral college?

David Schultz: There are a couple of different reasons. One of them is that my specialty is election law, and because presidential elections are so important, it naturally became of interest to me to understand the process for how we select the President of the United States.

Second, for reasons that we'll start to talk a little bit about here in the next few minutes, we've had two elections in the last 20 years where the popular vote and the electoral college vote have gone in different directions, therefore making the electoral college a very important, let's say newsworthy, institution that most people don't think about.

So, a combination of interest in election law, interest in presidential elections, and interest in some of the anomalies that I think the electoral college produces have all led me to become very interested in it. And also, for reasons that we'll talk about today, the electoral college produces this unusual thing called a swing state phenomenon, where effectively, we have a small number of states that determine who becomes President of the United States.

There are multiple reasons that we'll layout today, and people will be able to see why I’m passionate or interested in the electoral college.

Kellie Pantekoek: Sounds very interesting. Let's talk about it. Can you explain how the electoral college works for some of us that aren't as familiar?

David Schultz: Sure. I need to take us back in time, to 1787, which is the creating of the American Constitution. We have to understand that there several conflicts or dilemmas that our constitutional Framers had to deal with. One of them was the fact that we really are, the United States, the first, let's say, republic or popular government in the world. Across the world, all the other governments are what? They are monarchies, principalities, maybe what we would call (today) totalitarian governments. But this idea of the people selecting and voting was unusual. That's one thing to keep in mind.

The second thing to keep in mind was how fear or distrust was an issue of the Constitutional Convention. And what I mean by fear or distrust is that there was the fear by the slave states that if the free states got too much power, they would get rid of slavery. The free slates were fearful that if the slave states got too much power, we'd be all slave. The small populous states were fearful that if representation was set up in a certain way that favored big states, they would be unimportant, and the big states thought the same thing about the small states.

So, there were all of these different conflicts that the Constitutional Convention had to deal with. On top of that, the government that we were creating was emerging out of our first Constitution — called the Articles of Confederation — of which there was no independent president. And the concern was: How do we create this new office of the presidency, which didn't really exist before, without making it so powerful that it would be like bringing back the King of England, or too weak that it wouldn't be able to get anything done?

Think of the picture here. We've got all these problems. Big versus small state. Free versus slave. Fear of kings versus too weak of a government. And not completely sure how to create a new popular government. The electoral college becomes the solution, at least for the Framers, regarding how to solve this problem. And what the electoral college said, quite simply, is that we are going to let the states pick the President of the United States. And what do we mean by the states picking them? Each state would be given a number of electors equivalent to the size of their congressional delegation.

State legislatures would pick those electors. Those electors would then choose the President of the United States. And the idea was that by having the electors do this, states would be represented. Therefore, small populous states would still have a voice, as well as big states. Having the electors pick the president would mean that, hopefully, these electors would be independent enough to pick somebody who would be distinguished, who would be good, who would be a true leader. And the idea was that the electoral college would overcome regionalism, sectionalism. That it would protect majority rule and minority rights.

There's a famous writer from the 1970s, Martin Diamond, who makes this argument that it’s all about trying to balance majority rule and minority rights through this strange thing called the electoral college. Now, I know, all this sounds very complex, but at the end of the day, the Framers thought, in circa 1787, that the electoral college was the way to address these different competing needs or compromises to pick the President of the United States.

Kellie Pantekoek: Has the electoral college changed much since the Framers created it?

David Schultz: Yes, it has. And what's interesting is that when the electoral college was first set up, and in fact, when our entire Constitution was first set up, it was presupposed that political parties did not exist. And what I mean by that is that electors were given, initially, two votes. They could cast one vote, and then, they had to cast the second vote, and that second vote had to be for somebody who was not a member of their own state. And what happened is that whoever got the most electoral votes became president. Whoever got the second most became vice president. There wasn't this idea of running on a ticket.

And this made perfect sense in 1788, in the first presidential election. Because why? If I could write a campaign slogan, “everybody wanted George.” It was George Washington. Everybody knew it was going to be George Washington. So, he gets the most votes. John Adams gets the second most votes. He becomes vice president. The same thing happens four years later. Everybody wants George again. He gets it. John Adams is vice president again.

But by 1796, political parties are emerging. John Adams is of one party, the Federalists. Thomas Jefferson is of a rival political party, what's called the Democratic-Republicans, which is now basically the Democratic Party. An election happens, and guess what? John Adams gets the most votes. He's president. His political party rival, Thomas Jefferson, becomes vice president. So, starting in 1796, parties are emerging.

And then, what really brings about the big change is in 1800. Thomas Jefferson is running as a ticket with his vice-presidential candidate, Aaron Burr. The electors still have two votes. They cast their votes. Thomas Jefferson and Aaron Burr are tied. It goes through multiple votes in the House of Representatives, because according to the Constitution, if nobody gets a majority of the electoral votes, the House of Representatives picks the president. We were that close to Aaron Burr being the third President of the United States.

Instead, after Jefferson was picked, we changed the Constitution. The 12th Amendment now makes the president and the vice president run as a ticket. So, more or less, that's been the basic structure, constitutionally, with the electoral college.

Now, there are a couple of other important changes to note here. One of them is the fact that we have no right to vote for President of the United States. We were reminded of that as recently as the year 2000, in the big fight between George Bush and Al Gore over the electoral votes in Florida. What the Supreme Court pointed out is that the authority to pick the electors still stays with state legislatures. But, really, since the 1820s, state legislatures had given the public the right to use votes within their states to select the electors.

So, think about how our election goes now. If we're going to update it to the present, what our presidential election really is, is (I call it) the race to 270. And what I mean by the race to 270, there are a total of 538 electoral votes. In order to win the presidency, a ticket has to win 270, which is a majority of those electoral votes. Those 538 electoral votes, or electors, are distributed across the United States roughly on the basis of population, which means bigger states like California (by bigger I mean more populous) get more electoral votes. But every state gets at least three electoral votes.

And so, our presidential election is really 50 separate state elections, plus the District of Columbia, competing to amass electoral votes where the state legislatures are saying that the people get to pick the electors that pick the president. And, one more wrinkle: In 48 out of 50 states, whoever wins the most popular vote in a state wins all the electors in that state. The only two states that it's not that way are Nebraska and Maine.

By now, your head is probably swimming, because, what are we talking about here? Majority vote within states. Picking electors on an all-or-nothing basis where we have a race to get to 270 electoral votes. Where we don't, per se, have a right to vote for president, and where it doesn't, on one level, matter who wins the popular vote because it's what? The race to 270.

This sounds really confusing, and it is. I know, when I talk to my students, when I go out and talk to the public (I do lots of talks during election year that explain the electoral college) everybody is like, wow, this is complex. And it is. It's a very complex system, the way it's evolved over time.

This idea of telling people that we supposedly live in a democracy, but we don't have the direct right to vote for president. It's these people called electors' who get to pick the president. That how they're picked is by legislatures, state legislatures, but the state legislatures let us pick the electors. And that it's done in an all-or-nothing fashion within states, and that at the end of the day, it's the race to get to 270 electoral votes, and that the popular vote technically doesn't matter. This is all really confusing. Because we do live in a very complex system regarding how we pick the President of the United States. And it's a very unique process compared to any other country in the world, because in all the other countries in the world that we would classify as a democracy, the people have the right to vote for their president, or to pick the party that would pick their prime minister, who would be the head of their government.

So, we're in kind of an unusual circumstance here, and partly because of the fact that our Constitution is the oldest written constitution in the world, and we more or less have a process for picking the president that goes back 230 years. So, we have an old process that has been sort of, let's say, jerry-rigged, or tried to be fixed a couple of times. But it's an unusual one.

Kellie Pantekoek: I remember reading somewhere that the electoral college was partially created so that people that lived far away from cities and state capitals didn't have to vote themselves. That they had representatives to vote for them. Is that true?

David Schultz: There's a little bit of truth to that. I mean, again, take us back to 1787. We were probably, I'm going to guess, at that point, about 90% rural. Most people lived on farms. I'm going to make a guess here, and I've seen some statistics that say that maybe a third of the population was literate — that could read or write. And I mention that because the difficulty of traveling to vote, the ability of people to be well-informed, perhaps, about the presidency, or to understand the government might have been weaker than it is now, because we didn't have all the same information technologies back then.

And then, there are some people who say that the Framers just didn't completely trust the average person back then to be able to cast votes. So, there's a whole bunch of reasons. But a lot of times, when I talk about American politics and I talk about our Constitution, I sometimes write a word on the board, and that word is fear. F-E-A-R. And I say that because, as I mentioned earlier, there were lots of fears that went into the drafting of the Constitution. Fear that one side would get too powerful. Fear that the government wouldn't be strong enough.

Let me tell you a funny story about where fear comes in with the electoral college. When we talk about how the election actually occurs, when we go to vote on November 3rd this year, that's when the popular vote occurs, where we go to vote. But that's not, in many ways, the real election. The real election takes place several weeks later in November, November, I believe, it is 14th, where the electors will meet to actually cast their ballots.

And the Constitution says that the electors shall meet in their own states, in their own capitols. The reason why I mention this is when I tell people about the electoral college, they have this image of 538 people converging on Washington to vote. I say, "no." Our Framers were so worried that if all of the electors got together in one place, some kind of conspiracy or something nefarious would happen. They said, "No. They're going to stay back in their own states."

And so, I think fear is maybe a good description (again, Martin Diamond's description). Maybe that fear was a fear that somehow minorities, unpopular views, small states would not be represented. And again, there was the hope, the belief that the electoral college would protect those minorities, whether they were the farmers, the rural people, or the people in small states.

We oftentimes look at the electoral college from the only perspective that we can. What? From the year 2020. But we have to look at it from the perspective of when the Framers drafted it, and they had perhaps very different reasons for why they were doing something, even if it evolved in ways that were different from what they thought or envisioned.

Kellie Pantekoek: So, obviously, the electors have a very important job. How do they get to be an elector and who can be an elector?

David Schultz: Sure. The original idea was that the elector would be somebody picked by the state legislature. Alexander Hamilton wrote about it in one of the Federalist Papers. Alexander Hamilton is one of the constitutional Framers. The Federalist Papers is a collection of papers written by him, James Madison, and John Jay discussing the Constitution. And Alexander Hamilton's hope was that these electors would almost be like wise sages. That they would be able to think in terms of what's in the best interest of the country.

So, this image was that the legislatures would nonpartisanally appointment them. These individuals would then deliberate and say, "The best person for president is George Washington," or Thomas Jefferson, or whoever it may be. That was the idea. But with the evolution and our creation of political parties, what really happens now is electors are generally friends of the presidential candidates. So, let's say, for this coming November, that it's Donald Trump versus Joe Biden. Joe Biden is going to have a slate of electors that he wants in each of the 50 states plus the District of Columbia. Donald Trump is going to have his slate of electors in all 50 states plus the District of Columbia.

And these are generally people who are very loyal, who generally pledge to vote for the winning candidate. And whichever candidate then wins the most popular vote in that state gets to seat his electors. Now, the reason why this is important is that if the original idea behind the electors was that these were wise sages, very deliberative people, it's less clear that that's what the role is today. I don't want to quite go as far as saying they are partisans, but that's a little bit closer to where they are.

This raises an interesting issue. Over time, we've had what's been known as faithless electors. That is, even though individuals said they were pledged to vote a particular way, when it was time to cast the electoral vote, the elector didn't vote the way they thought they were going to. None of these faithless electors have actually affected the outcome of an election. But if you were to get a very close election — like in 2020, many people are anticipating that this could be a very, very close election — let us say one or two electors, or maybe three electors decide to say, "I don't like Trump," or, "I don't like Biden. I'm going to vote for ... " whoever it may be. That could be critical.

Actually, there's a really interesting case that the Supreme Court just decided recently regarding faithless electors and whether states can require them to vote according to the way they were initially pledged or told to do so by their voters.

Kellie Pantekoek: Let's talk about that case. The Supreme Court held that states can punish faithless electors. Can you tell us a little about what that means and why it's important?

David Schultz: Okay. Sure. What many states have done is to pass laws requiring electors to vote according to the way that the popular vote went in that particular state. And what the Supreme Court recently decided was that a state may punish an elector who refuses to vote the way the popular vote requires that person to vote. And that's a pretty important decision because it talks about the way we pick Presidents of the United States.

Kellie Pantekoek: So, would you say the ruling is an all-out ban on electors voting against their pledge, or is it just that states can decide to punish them if the state wants to?

David Schultz: It's not an all-out ban on electors voting their conscience or the way they want. Instead, what it says is that if a state does want to pass a faithless electoral law, they may do so. And if they wish to punish them by fining them, they may do so.

Now, so far, not all the states in the country have laws like this. But it is possible that a decision like this may encourage more states to pass similar laws, especially when our elections have become so polarized and so divided, where states may be fearful that if they don't compel electors to vote the way they're supposed to, it could affect the outcome of an election or it could lead to electors doing who knows what.

Kellie Pantekoek:Okay. So, at this point in time, what happens if a state doesn't have a law on their books punishing faithless electors?

David Schultz:What would happen, at this point, it would leave electors free to do whatever they want, which is really kind of unusual here, because again, for most of us, we're thinking that when we cast our vote and the votes are totaled up in our states, whether it's Minnesota, New York, or California, or Texas, or Louisiana, wherever it may be, voters are thinking, well, the electors have to follow how the popular vote went in that state. They have to go the way that we told them to.

But without those faithless elector laws, a faithless elector could say, "Well, gosh, I really don't like this particular candidate," or, "I don't think this person is the best choice to be President of the United States." And it would free that person to vote for somebody else. Over time, over American history, we've had several faithless electors. Never enough to actually affect the outcome of an election. It's usually maybe one, maybe two electors occasionally, in an election. But even not every election.

So, there may be, in 2020, and possibly in the future, some electors who might just say they don't like who won the state and they're going to vote a different way.

Kellie Pantekoek: Why do some people believe that electors should have discretion to vote against their pledge?

David Schultz: I think there are two reasons. One of them goes back to the structure of the Constitution and the electoral college. Remember, it's ultimately the states that pick the President of the United States through the electoral college. And under what was originally envisioned by our constitutional Framers, the idea was that the electors would somehow be these wise sages who would be able to make really good choices for who would be President of the United States. That's one argument.

The second one almost approaches a chamber of horrors type of argument. The argument being that, well, what if the people take leave of their senses, and they were to vote for, I don't know, Fido the dog, or something like that, or they were to pick somebody who is totally unqualified? Or, what if, for example, somebody wins the popular vote in a state, but then that person goes on to die, or commits a major crime, or something? Giving the electors some discretion to be able to make their own choices in cases like these is partly why some of the defenders want to be able to give the electors wide-open discretion.

Kellie Pantekoek: What do you think the Framers would say about the recent Supreme Court decision?

David Schultz: This is a really tough question, because there's not a lot written in terms of the Constitutional Convention about the electoral college. There was lots of debate about how to select the president, but the whole idea for creating the electoral college occurs figuratively at the 11th hour of the convention. Not a lot of debate. One could argue, on the one hand, that the states were given very broad authority to determine who the electors are and to pick them, which is what the majority opinion in the Supreme Court’s recent case said. Or, you could find evidence within the debates of the Constitutional Convention that the electors were supposed to be given wide discretion.

So, like with so many other things when we get to the Constitution, trying to figure out what the intent of the Framers was, it's not completely clear.

Kellie Pantekoek: What does the decision mean for the 2020 election and beyond?

David Schultz: Well, what it means for the 2020 election is that it may be less likely that we'll be surprised by an elector changing his or her vote for somebody else. And under some scenarios, some predictions for this election, some people think that this could be one of the closest elections in American history. Some think that, even though the popular vote seems to be favoring one candidate as opposed to another right now, that in those critical electoral votes, it's very close. Some were fearful that the switch of one or two electors would mean the difference between one person winning versus losing the presidency.

This decision makes it less likely that the flip of one or two electors is going to happen, or that it'll change the outcome of the election.

Kellie Pantekoek: Do you expect to see more states enacting laws against faithless electors before the election?

David Schultz: I think we will eventually see more states do this. I think so many states, right now, are in the grip of worrying about other election issues because of the coronavirus. Worried about getting ballots out. Worried about how to get election judges. Worried about just running an election. I'm not sure this will be at the top of their list of things that they're going to be prioritizing.

But I would definitely think that, going forward after this decision, it empowers states to want to do this.

Kellie Pantekoek: Well, that'll be very interesting to see how it all works out. Going back to the electoral college more broadly, what impact does the electoral college have on an election compared to an election decided by popular vote? You've already talked about this a little bit, but you can expand on it more?

David Schultz: Sure. So, let's think about it. Let's say we just had a straight popular vote in the United States. A straight popular vote would mean whoever gets the most popular votes, the most votes on election day, would become President of the United States. And the argument for some is that if that's how we were to hold an election, would it create an incentive for presidential candidates to only visit very large, populous states, like a California, or a Texas, a Florida, New York, to name, for example, the four most populous states in the country? Would they ignore, let us say, a North Dakota, a South Dakota? Would they say, "Well, there's not that many votes, really, in a Rhode Island, and I'm not going to really worry about that?"

So, on one level, a popular vote would just simply add up all the votes. Whoever gets the most votes would win. And that would potentially mean that some states get ignored, possibly.

Now, with the electoral college in place, there are a couple things to think about. One is, as we've seen now for five times in American history, the winner of the popular vote doesn't necessarily win the electoral college. Because of the way electoral votes are distributed across the country, every state gets a minimum of three electors, no matter what. That's the bottom. Can't go any lower than that.

There is a little bit of a distortion, in effect. And what you can wind up having is where a candidate can win the popular vote but lose the electoral college. We saw that in 2016, where Secretary Clinton received about two and a half to three million more popular votes than Donald Trump but lost the electoral college. In the year 2000, Al Gore received about a half a million more popular votes than did George Bush but lost the presidency because of the electoral college. So, the difference is that with the electoral college, it's important for the distribution where those votes are.

And what this creates is an unusual circumstance:

Partisanship has become incredibly rigid. There are some states in the country that are so overwhelmingly Democratic — for example, New York or California — that on election day, it's pretty easy to predict that a Democrat is going to win. In fact, it's easy to predict months in advance of the election. On the other hand, there are states such as Louisiana, Mississippi, and Alabama, that are so overwhelmingly Republican that we know how they're going to vote. And this is where it gets to my research now. Back in 2015, I co-authored a book called Presidential Swing States. And what we argue is that because of the electoral college, where again, in 48 out of 50 states, electors are awarded in a winner-take-all situation, and because of the way the Democrats and Republicans clump themselves in some states as opposed to another, we argued back then that the presidential election was probably over in 40 states and there were only about 10 states that were really in play.

And the candidates in 2016 acted that way, too. They only campaigned in a small number of states. Places like Pennsylvania, North Carolina, Florida, Ohio, Michigan, Wisconsin, places like that. And what the electoral college has created with that partisanship is we have, really, only a few states that wind up really mattering at this point.

Going into the 2020 election, looking at the distorting effect of the electoral college, I'm arguing that there are probably only about seven states, maybe eight states at most, that are truly competitive. And for people who are wondering, I can list them for you.

Most of the campaign in 2020 is going to center around Pennsylvania, North Carolina, Florida, Michigan, Wisconsin, perhaps Minnesota, and Arizona. Those are the seven states that are in play. Right now, looking at the electoral college, Donald Trump and Joe Biden each have somewhere around 205, 210 electoral votes pretty comfortably on their side. They're going to fight for the remaining 100 electoral votes, which are going to determine who gets over the top.

So, this is how the electoral college has affected strategy over time, creating certain states that are more important. For some people, the argument is that, “well, if I'm a Democrat in Texas, a Republican in New York, why should I vote? My vote might not mean anything.” You still should vote. You still should vote, because if nobody voted, then, of course, things would change. There's also, of course, non-presidential elections to worry about.

But certainly, the presidential election system with the electoral college and our partisanship has really created this, if I can use the phrase, distorting effect, in terms of how campaigns are undertaken.

Kellie Pantekoek: Wow. Interesting. Now, I have an opinion question for you. So, in your opinion, should we get rid of the electoral college process? Does it still make sense today? Does it serve its purpose?

David Schultz: If we were to look at the original purposes of the electoral college, it largely hasn't worked, over time. And what I mean by that: Does it protect small states? Not necessarily. Does it overcome regionalism? No. Does it overcome sectionalism? No. So, a lot of those original premises haven't worked out over time.

It has also produced a situation where the idea that somebody can be elected President of the United States but not win the popular vote doesn't strike most of us of as what it means to be democratic. So, if I could wave my magic wand… I don't have one… so, if I wave my magic pen here, I would say, yes, we should get rid of the electoral college.

However, the question is, what do we do when we get rid of it? This becomes interesting. One of the benefits of the electoral college is the fact that, right now, with it being 50 separate state elections plus a separate election in District of Columbia, if there's, let us say, shenanigans or some problem in one state, we only have to recount the vote in one state. If it's now a national popular vote, would we be potentially, in a close election, recounting in all 50 states plus the District of Columbia? That's one issue to think about here.

The second issue is: Would going to straight popular vote mean that people would still ignore the small states? Would they still say, "I'm not going to go to Idaho. I'm not going to go to South Dakota. I'm not going to go to Wyoming." Possibly. So, we might get a different distortion.

The third issue is, as much as I think we probably need to change the electoral college and move away from it, remember, to do that, we need a constitutional amendment. To do that, we would have to get two-thirds of both the House and the Senate, plus three-quarters of the states to adopt that amendment. That's probably impossible to occur at this stage.

So, what I actually recommend instead is this:

I mentioned to you that state legislatures still get to decide how to pick the electors. They let the public vote and, in 48 out of 50 states, states allocate electors based upon winner-take-all. Maybe this is not the best solution. Maybe the second-best solution is to say, why don't we try to get more states to allocate their electors on a proportional basis?

Which means, for example, let's say, in California, a Democrat wins 60% of the popular vote and a Republican wins 40%. Maybe we should allocate the electoral votes 60/40. Or, in a state like Texas, where Republicans have dominated for years, let's say a Republican gets 55%, and a Democrat 45%, allocate it that way (55/45).

It's maybe not the optimum solution, but it gets us closer. Closer to that idea of it being more proportional. There are still going to be some problems with distortion. But I think, from a constitutional perspective, given the fact that it's unlikely to get an amendment to change even though 60% of the American public wants to get rid of the electoral college, it's going to be very hard to get rid of the constitutional system that's been around for 230 years.

So, I would say two cheers for getting rid of the electoral college, one cheer for keeping it.

Kellie Pantekoek: Do you foresee a solution like the one you just suggested? Do you foresee that happening any time soon?

David Schultz: Not necessarily, although we are seeing, increasingly, states experiment. For example, the state of Maine is actually going to use, in 2020, rank choice voting as a way of picking the President of the United States. I mentioned to you we have two states, Maine and Nebraska, that already do it proportionally. There are other calls out there, for example, for what's called the national popular vote, that say a state should allocate its electoral votes based upon how the national popular vote goes.

So, there are lots of proposals out there for trying to reform it, but none of them seem to be getting the consensus yet. What I think has to happen, this is unfortunate to say, is that we probably need to have another election occur where something goes wrong that people perceive as going wrong. And what I mean by that is we know Democrats right now are upset with the electoral college because they claim that in 2016 and in the year 2000, a Democrat should have been president but lost in the electoral college. Perhaps if now, let us say, the reverse were to happen. Let's say, for example, Donald Trump were to get the most popular votes in 2020 but lose in the electoral college to Biden. It might create more of a bi-partisan consensus to say to do something.

But right now, in the same way that we are so divided politically on so many other issues, I think there's partisan divide over the electoral college, also.

Kellie Pantekoek: Okay. Wow. So interesting. Thank you so much, Professor Schultz, for your insights and all of your knowledge on this. This has been really, really informative. For more information on voting law visit findlaw.com/voting. And if you do want to contact Professor Schultz, he is available by email at dschultz@hamline.edu.