The Electoral College: Options for Change and 117th Congress Proposals

The Electoral College: Options for Change and 117th Congress Proposals

April 2, 2021
The Electoral College: Options for Change and 117th Congress
Proposals
Electoral College: The Basics
Electoral College Reform: Pro and Con
American voters elect the President and Vice President of
The performance of the electoral college has not protected
the United States indirectly: they vote in their states and the
the system from criticism and demands for change. More
District of Columbia for presidential electors pledged to the
than 700 proposals to reform or abolish it have been
candidates of their choice. The electors are known
introduced in Congress since 1800.
collectively as the electoral college. Article II, Section 1 of
the U.S. Constitution assigns to each state a number of
A major criticism centers on the Constitution, which
electors equal to the total of the state’s Senators and
provides for indirect election of the President and Vice
Members of the House of Representatives, a total of 538 at
President by electors, rather than voters. Indirect election,
present, including three electors for the District of
critics assert, was acceptable in the 18th century, but is
Columbia provided by the Twenty-third Amendment. The
incompatible with the norms of contemporary democratic
Twelfth Amendment requires that candidates for President
government in the United States. A second constitutional
and Vice President each win a majority of the electoral
criticism is that the system has elected Presidents who won
votes cast for their office to be elected. Candidates for the
the electoral college but who received fewer popular votes
office of presidential elector are nominated by the state
than their opponents, most recently in 2000 and 2016. Here
political parties. In 48 of 50 states, the candidates winning
again, reform advocates maintain that this is irreconcilable
the most popular votes win all the state’s electoral votes,
with the democratic principle of majority rule. Another
the general ticket or “winner-take-all” (WTA) system;
criticism is that faithless electors occasionally vote for
Maine and Nebraska are the only exceptions, awarding
candidates other than those to whom they are pledged. In
electoral votes on combined statewide and congressional
2020, however, the Supreme Court ruled (in Chiafalo v.
district totals. For further information see CRS Report
Washington) that laws in approximately 32 states and the
RL32611, The Electoral College: How It Work s in
District of Columbia requiring electors to pledge to vote for
Contemporary Presidential Elections.
their parties’ nominees for President and Vice President, 15
of which provide penalties for or replacement of faithless
Electoral College: The Record
electors, are constitutionally valid. For further information
Since the first presidential election was conducted under the
and a legal analysis, see CRS Legal Sidebar LSB10515,
Twelfth Amendment in 1804, the electoral college has
Supreme Court Clarifies Rules for Electoral College: States
delivered a majority of electoral votes to candidates for
May Restrict Faithless Electors.
President and Vice President in 54 of 55 contests, a rate of
98.2%, measured by winning a majority of electoral votes.
Additional structural critiques assert that the system’s
When measured by electoral and popular votes, it has
allocation of electoral votes provides an advantage to less
delivered the presidency to the candidates who won a
populous states, and that it does not account for changes in
majority of electoral votes and a plurality or majority of
state population between each census-driven decennial
popular votes in 45 of 50 elections—a rate of 90.0%—held
reapportionment of Representatives (and therefore electors).
since the election of 1824, the first for which relatively
A widely criticized nonconstitutional feature of the
complete popular vote returns are available. Over time,
electoral college is the WTA system used in 48 states and
consistency between the electoral and popular vote winners
the District of Columbia. In WTA states, the candidates
has come to be seen by some as a second measure of the
winning the most popular votes in a state take all the state’s
system’s success, as the states provided for choice of
electoral votes, no matter how close the popular vote
presidential electors by the voters. Contemporary press and
margin. Critics claim WTA thus disenfranchises voters who
media coverage, for instance, tends to focus on both the
choose the losing candidates. They also assert that the
popular vote campaign and the electoral college in the
system facilitates various “biases” that are alleged to favor
states. The exceptions here are four presidential elections—
different states and groups, for example, the alleged
1876, 1888, 2000, and 2016—in which candidates were
electoral college “lock,” a questionable phenomenon that is
elected who won a majority of electoral votes, but fewer
claimed to have provide a nearly insuperable electoral
popular votes than their principal opponents. In a fifth
college advantage to one or the other of the political parties
election, 1824, none of four major candidates won a
at various points in time.
majority of electoral or popular votes. This instance led to
contingent election of the President in the House of
Electoral college defenders assert that the system is durable
Representatives. For information on contingent election, see
because of its record of performance, noting that it has
CRS Report R40504, Contingent Election of the President
delivered an electoral vote majority in 54 of 55 presidential
and Vice President by Congress: Perspectives and
elections since 1804, and an electoral college winner who
Contemporary Analysis.
also received a popular vote plurality or majority in all but
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The Electoral Col ege: Options for Change and 117th Congress Proposals
five of those elections. They also maintain that it is
of voting; (5) national voter registration; (6) inclusion of
democratic because presidential electors are popularly
U.S. territories in the presidential election process; (7)
elected. From a practical standpoint, they claim that it is a
establishment of an election day holiday; and (8)
key support of the federal system, that it has contributed to
congressionally legislated federal ballot access standards
a stable and moderate political party system, and that by
for parties and candidates.
tending to magnify electoral vote margins, WTA actually
enhances the winning candidate’s legitimacy.
An Enlarged Federal Role in Presidential Elections?
Electoral college supporters arguably would oppose any
Prospects for Change
proposal to eliminate the system for reasons cited earlier in
Because many of the electoral college system’s procedures
this document, but they might express added concern about
are set by the Constitution, it would take a constitutional
the prospect of increased federal authority over presidential
amendment to revise or replace them. The Constitution,
election administration. Their questions might include the
however, is not easily amended: proposal by Congress
following: Would federal involvement in traditionally state
requires a vote by two-thirds of Senators and
and local practices impose additional responsibilities and
Representatives, followed by ratification by three-fourths of
uncompensated costs on state and local governments?
the states. In addition, amendments adopted since the 18th
Would the states’ expenses be compensated by federal
Amendment have usually included a seven-year ratification
assistance? Would an enlarged federal role in election
deadline. According to the Senate Historian, approximately
procedures constitute an intrusion in responsibilities
11,770 amendments were introduced between 1789 and
traditionally carried out by state and local governments?
2019; 33 were proposed by Congress, and 27 have been
Would a federalized election administration system be able
ratified. Congress actively considered electoral college
to manage efficiently the wide range of differences in state
reform or replacement from the 1940s through the 1970s,
and local conditions? Would there be long-term negative
but no proposed amendment reached the floor of either
implications for federalism?
chamber after 1979. Since the 2016 election, congressional
interest has revived, focusing on amendments that would
Conversely, proponents might assert that enhanced federal
replace the electoral college system with direct popular
authority in the context of direct popular election would be
election.
appropriate for national elections. In the 117th Congress,
H.R. 1, the For the People Act of 2021, includes relevant
Reform Options
provisions. See CRS In Focus IF11097, H.R. 1: Overview
and Related CRS Products, for further information.
Reform options include proposals to retain the basic
electoral college system; these would eliminate the office of
117th Congress Reform Measures
presidential elector but retain electoral votes. Beyond this
One joint resolution proposing direct popular election has
common feature, three principal options for reform have
been introduced to date in the 117th Congress.
been proposed over time: (1) the automatic plan, which
would mandate the general ticket WTA system in all states
H.J. Res. 14
and the District of Columbia; (2) the district system,
currently adopted in Maine and Nebraska, which would
This resolution was introduced on January 11, 2021, by
allocate electoral votes by congressional district and at-
Representative Steve Cohen and eight cosponsors. It was
large in each state; and (3) the proportional system, which
referred to the House Judiciary Committee on the same day.
would award electoral votes in direct proportion to the
The resolution contains specific proposals for the
percentage of votes gained by the competing candidates in
establishment of direct election. To date, there has been no
each state.
further action.
Since the late 20th century, most electoral college proposals
It would (1) provide for direct election of the President and
would eliminate the system entirely and replace it with
Vice President by the people; (2) define voters as “electors
direct popular election of the President and Vice President,
of the most populous branch” of the state legislature in each
with either a plurality or majority of the popular vote
state; (3) empower Congress to set “uniform age
necessary to win.
qualifications”; (4) formalize the joint candidacy of
President and Vice President on the same ticket; (5) declare
Direct popular election proposals fall into two categories;
the candidates winning “the greatest number of votes” to be
the first includes resolutions that would establish direct
elected; (6) authorize Congress to provide for the “times ,
popular election but otherwise make few other changes in
places, and manner of holding such elections and
the presidential election process.
entitlement to inclusion on the ballot”; and (7) authorize
Congress to provide by law for the case of death of a
The second category would establish direct popular
candidate or a candidate’s departure from the ticket. The
election, and would also enable Congress to provide by law
resolution sets a seven-year deadline for ratification.
for enhanced federal authority over a range of election-
related issues. Some of these elements include authorizing
Thomas H. Neale, Specialist in American National
Congress to provide by law for (1) the times, places, and
Government
manner of holding presidential elections; (2) uniform
residence standards; (3) vacancies in presidential
IF11802
candidacies; (4) a definition of citizenship for the purposes

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The Electoral Col ege: Options for Change and 117th Congress Proposals

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