The Electoral College: Reform Proposals in the 108th Congress

The Electoral College: Reform Proposals in the 108th Congress

Order Code RS21496
April 15, 2003
CRS Report for Congress
Received through the CRS Web
The Electoral College: Reform Proposals in
the 108th Congress
Thomas H. Neale
Government and Finance Division
Summary
American voters elect the President and Vice President of the United States under
a complex arrangement of constitutional provisions, federal and state laws, and political
party practices known as the electoral college system. For additional information on
contemporary operation of the system, please consult CRS Report RS20273, The
Electoral College: How It Works in Contemporary Presidential Elections, by Thomas
H. Neale. Despite occasional close elections, this system has delivered uncontested
results in 46 of 50 elections since adoption of the 12th Amendment, effective in 1804.
Throughout this period, nevertheless, it has been the subject of persistent criticism and
many reform proposals. Related measures fall into two basic categories: those that
would eliminate the electoral college and substitute direct popular election of the
President and Vice President, and those that would retain the existing system in some
form and correct perceived defects. For additional information on electoral college
contingencies and broader aspects of reform proposals, please consult CRS Report
RL30804, The Electoral College: An Overview and Analysis of Reform Proposals, by
L. Paige Whitaker and Thomas H. Neale. One proposal to reform the electoral college
has been offered to date in the 108th Congress, H.J.Res. 28, introduced by Representative
Jackson of Illinois. Section 4 of the proposed amendment would “ensure that each
Elector votes for the candidate for President and Vice President who received a majority
of the popular vote in the State.” This report will be updated as legislative events
require.
Alternative Approaches: Direct Popular Election v. Electoral
College Reform
A wide range of proposals to reform presidential election procedures have been
introduced over time. In recent decades, they have fallen into two categories: (1) those
that seek to eliminate the electoral college system entirely, and replace it with direct
popular election; and (2) those that seek to repair perceived defects of the existing system.
The direct election alternative would abolish the electoral college, substituting a
single, nationwide count of popular votes. The candidates winning a plurality of votes
Congressional Research Service ˜ The Library of Congress

CRS-2
would be elected President and Vice President. Most direct election proposals would
constitutionally mandate the joint tickets of presidential/vice presidential candidates
already adopted in state law,1 and set the minimum number of votes necessary to win
election at 40% of those cast. In the event no presidential-vice presidential ticket were
to attain the 40% threshold, most direct election measures would require the two tickets
that received the most votes to compete in a subsequent runoff election. Some versions
would provide for Congress, meeting in joint session, to elect the President and Vice
President if no ticket received 40% of the vote.
Reform measures that would retain the electoral college have included a range of
different proposals, of which the most popular include:2
! the “automatic plan,” which would award all electoral votes in each state
directly to the winning candidates who obtained the most votes statewide;
this alternative constitutionally mandates the “general ticket” or “winner-
take-all system” currently used to award electoral votes in 48 states and
the District of Columbia;
! the “district plan,” which would award one electoral vote to the winning
candidates in each congressional district, and an additional two electoral
votes, reflecting the two “constant” or “senatorial” electoral votes
assigned to each state, regardless of its population, to the statewide
winners; this alternative constitutionally mandates the system currently
used to award electoral votes in Maine and Nebraska;
! the “proportional plan,” which would award electoral votes in each state
in proportion to the percentage of the popular vote gained by each ticket;
and
! hybrid plans, which would combine various elements of different reform
proposals.
Most versions of these plans would eliminate the office of elector, and award electoral
votes directly to the candidates. In common with direct election, most also require joint
tickets of presidential-vice presidential candidates, a practice which, as noted previously,
is currently provided under state ballot laws.
Pro and Con in Brief
As noted previously, proposals for electoral college reform fall into two basic
categories: those that would eliminate the electoral college and substitute direct popular
election of the President and Vice President, and those that would retain the existing
system in some form and correct perceived defects.
1 This provision, currently in use in all the states, requires each voter to cast a single vote for a
joint ticket for President and Vice President, thus insuring that the President and Vice President
will always be of the same political party.
2 For more detailed information on these reform options, consult CRS Report RL30804, The
Electoral College: An Overview and Analysis of Reform Proposals, by L. Paige Whitaker and
Thomas H. Neale.

CRS-3
Proponents of direct popular election cite a number of factors in support of their
proposal. At the core of their arguments, they assert that their process would be simple,
national, and democratic:
! They assert that direct popular election would provide for a single,
democratic, choice in which all the nation’s voters would directly elect
the two highest ranking officials in the United States government, the
President and Vice President.
! Further, the candidates who won the most popular votes would always
win the election, and in the event no one received at least 40% of the
vote, a runoff election between the two leading tickets would decide the
choice. (Some direct election proposals would substitute election by joint
session of Congress for a runoff in the event no ticket received at least
40% of the vote.)
! Every vote would carry the same weight in the election, no matter where
in the nation it was cast.
! All the various and complex mechanisms of the existing system, such as
the contingent election process, would be supplanted by these simple
requirements.3
They assert that, in contrast, the electoral college system is cumbersome and
potentially anti-democratic:
! The electoral college, some assert, is the antithesis of their simple and
democratic proposal. It is, they contend, philosophically obsolete:
indirect election of the President is an 18th century anachronism that dates
from a time when communications were poor, the literacy rate was lower,
and the nation had yet to develop the durable, sophisticated, and inclusive
political system it now enjoys.
! Moreover, they find the 12th Amendment provisions governing cases in
which no candidate attains an electoral college majority (contingent
election) to be even less democratic than the primary provisions of
Article I Section 1 (see footnote 3).
! By providing a fixed number of electoral votes per state that is adjusted
only after each census, they maintain that the electoral college does not
accurately reflect state population changes in intervening elections.
! The two “constant” or “senatorial” electors assigned to each state
regardless of population give some of the nation’s least populous
jurisdictions a disproportionate advantage over more populous states,
from this viewpoint.
3 In a contingent election, the President is elected in the House of Representatives, with each state
casting a single vote, regardless of its population and the election results in that state. The Senate
elects the Vice President in such cases, with each Senator casting a single vote.

CRS-4
! The office of presidential elector itself, and the resultant “faithless
elector” phenomenon,4 provide opportunities for political mischief, and
deliberate distortion of the voters’ choice.
! They argue that by awarding all electoral votes in each state to the
candidates who win the most popular votes in that state, the “winner-
take-all” or “general ticket” system effectively disenfranchises everyone
who voted for other candidates. Moreover, this same arrangement is the
centerpiece of one category of electoral college reform proposals, the
automatic plan.
! Finally, the electoral college system has the potential to elect presidential
and vice presidential candidates who obtain an electoral vote majority,
but fewer popular votes than their opponents, as happened in 2000.
Defenders of the electoral college, either as presently structured, or reformed, offer
various arguments in its defense:
! They reject the suggestion that it is undemocratic. Electors are chosen by
the voters in free elections, and have been in nearly all instances since the
first half of the 19th century.
! The electoral college system prescribes a federal election of the President
by which votes are tallied in each state. The founders intended that
choosing the President would be the action of citizens of a federal
republic, in which they participate both as citizens of the United States,
and as members of their state communities.
! While electoral vote allocation does provide the “constant two,” or
“senatorial” electors for each state, regardless of population, defenders
believe this is another federal element, and is no less justifiable than
equal representation for all states in the Senate. Moreover, the same
formula also assigns additional electors equal in number to each state’s
delegation in the House of Representatives, which more than
compensates for any minor distortion.
! Further, defenders reject the suggestion that less-populous states like
Alaska, Delaware, and Wyoming, each of which casts only three electoral
votes, are somehow “advantaged” when compared with California (55
electoral votes beginning in 2004). These 55 votes comprise more than
20% of the electoral votes needed to win the presidency, thus conferring
on California voters a “voting power” advantage that far outweighs the
minimal arithmetical edge conferred on the smaller states.5
4 Faithless electors are those who cast their votes for candidates other than those to whom they
are pledged. Notwithstanding political party rules and state laws, most constitutional scholars
believe that electors remain free agents, guided, but not bound, to vote for the candidates they
were elected to support. For further information, please consult CRS Report RL30804, The
Electoral College: An Overview and Proposals for Change, by L. Paige Whitaker and Thomas
H. Neale, pp. 9-10.
5 For additional information on the voting power theory, please consult CRS Report RL30804,
The Electoral College: An Overview and Analysis of Proposals for Change, by L. Paige Whitaker
and Thomas H. Neale, p. 7.

CRS-5
! The electoral college system promotes political stability, they argue.
Parties and candidates must conduct ideologically broad-based
campaigns throughout the nation in hopes of assembling a majority of
electoral votes. The consequent need to forge national coalitions having
a wide appeal has been a contributing factor in the moderation and
stability of the two-party system.
! They find the faithless elector phenomenon to be a specious argument.
Only nine such electoral votes have been cast against instructions since
1820, and none has ever influenced the outcome of an election.
Moreover, nearly all electoral college reform plans would remove even
this slim possibility for mischief by eliminating the office of elector.
Electoral college defenders also point to what they assert are flaws in direct election:
! Direct election proponents claim their plan is more democratic, and
provides for “majority rule,” yet most direct election proposals require
that victorious candidates gain as little as 40% of the vote in order to be
elected. How, ask its critics, could such plurality Presidents be
reconciled with the concept of strict “majority rule”?
! Further, they assert that direct election will foster acrimonious and
protracted post-election struggles. For instance, as the presidential
election of 2000 demonstrated, close results in a single state in a close
election are likely to be bitterly contested. Under direct election, those
favoring an electoral college claim, every close contest could resemble
the post-election contests in 2000, not only in one state, but on a
nationwide basis, as both parties seek gain every vote. Such rancorous
disputes could have profound negative effects on political comity in the
nation, and possibly even the stability of the federal government.
Reform Proposals in the 108th Congress
H.J.Res. 28 (Representative Jackson of Illinois). At the time of this writing,
one proposal for electoral college reform has been offered in the 108th Congress, H.J.Res.
28, introduced by Representative Jackson of Illinois on March 3, 2003.6 The resolution
includes several provisions designed to guarantee the right to vote in public elections,
including the authorization of nationwide election performance standards established by
Congress, and election day voter registration. Section 4 applies particularly to the
electoral college, requiring states to: establish and abide by rules for appointing electors;
conduct these elections, in effect presidential elections, on a day selected by Congress;
and, most pertinently, “ensure that each Elector votes for the candidate for President and
Vice President who received a majority of the popular vote in the State or District.”7
Section 4 would affect the electoral college system in two ways. First, it would
eliminate the faithless elector phenomenon by requiring electors to vote for the candidates
who won the most votes. While the resolution would not eliminate the office of elector,
6 Proposed constitutional amendments are customarily introduced as House or Senate joint
resolutions.
7 H.J.Res. 28, 108th Congress, Section 4.

CRS-6
as do many reform proposals, it would have a similar effect by constitutionally binding
electors to vote for the candidates who won the most votes in their state or district. The
second impact is that the resolution has the effect of incorporating either the winner-take-
all (general ticket) system or the district system into the Constitution, which is currently
silent on methods of allocating electoral votes. Section 4 thus implicitly authorizes the
states to opt for either plan.
H.J.Res. 28 has received the customary referral to the Judiciary Committee, and may
be further referred to the Subcommittee on the Constitution. No further action has been
taken at the time of this writing.
Conclusion
The U.S. Constitution is not easily amended. Stringent requirements for proposed
amendments, including approval by two thirds vote in both chambers of Congress, and
three-fourths of the states, generally within a seven-year time frame, have meant that
successful amendments have usually been the products of broad national consensus, a
sense that a certain reform is urgently required, and active support by congressional
leadership.8 Many observers assumed that the apparent “misfire” of the electoral college
system in the 2000 presidential election would lead to serious consideration of reform
proposals. Notwithstanding these circumstances, however, none of the seven electoral
college reform resolutions introduced in the 107th Congress received more than routine
referral.9 Attention, instead, focused on proposals for election administration reform,
resulting in passage of the Help America Vote Act , P.L. 107-252.10
8 Article V of the Constitution also provides for amendment by a convention, which would be
convened on the application of the legislatures of two thirds of the states. Any amendments
proposed by such convention would also require approval of three fourths of the states. This
alternative method, however, has never been used.
9 For further discussion of the hurdles faced by electoral college reform proposals, see CRS
Report RL30844,The Electoral College: Reform Proposals in the 107th Congress, by Thomas H.
Neale.
10 For additional information on the Help America Vote Act, please consult the CRS Briefing
Book, Election Reform, available to Congress on the CRS Home Page at [http://www.crs.gov/]
.