As we relearned in 2016, a candidate can win the national popular vote and lose the presidency. Hillary R. Clinton received 2.87 million more votes than Donald J. Trump, but lost the Electoral College 304 to 227, with 270 votes needed to win. When the electors met in December, two Trump electors in Texas bolted as did five Clinton electors, four in Washington and one in Hawaii. Faithless electors in Colorado were replaced under state law but none of the defections affected the outcome.
The Electoral College has now trumped the popular vote four times (not counting John Quincy Adams which was not quite a popular vote win): in 1876 (Rutherford B. Hayes), 1888 (Benjamin Harrison), 2000 (Al Gore, Jr.), and 2016 (Hillary R. Clinton). In 2016, Clinton won the national popular vote by 2.09 percentage points. Of the four Electoral College misfires (1876, 1888, 2000 and 2016) Clinton’s ranks second to New York Gov. Samuel Tilden’s win of the national popular by three percentage points in 1876 but loss of the Electoral College in the famous Tilden-Hayes Compromise. The two biggest Electoral College victims, thus, were two New York Democrats. The third victim was also a New Yorker, Grover Cleveland, in his run for reelection in 1888. Cleveland won the national popular vote, but lost New York by 14, 373, or a little more than one percentage point, and, thus, the Electoral College.
In 2000, Al Gore received approximately 547, 398 more popular votes than George Bush, but lost the Electoral College 271 to 266 after a recount in Florida. Before counting Florida with 25 electoral votes, Gore had 266 electoral votes and Bush had 246. The race was tight because Gore had lost New Hampshire’s four electoral votes, which would have given him the needed 270 electoral votes, due to the third-party candidate Ralph Nader siphoning off votes. The year 2000 was the only election between 1992 and 2016 in which New Hampshire cast Republican electoral votes.
The U.S. Constitution, in Article II, section 1, clause 2, provides that the president and vice president are chosen by electors in “Each State… in such Manner as the Legislature thereof may direct … equal to the number of U.S. senators and representatives.” The rationale for this provision is the founding fathers’ distrust of the people to choose their president. James Madison in The Federalist Papers No. 10, refers to the fear of factions, and Alexander Hamilton in The Federalist Papers No. 68, argues that the president should be selected “by men most capable of analyzing the qualities adopted to the state, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.” In other words, the best man for the job (this being well before the 19th Amendment and even the thought that a woman could be president).
The modern practice is for electors to be appointed by the political parties or the presidential campaigns to whom they are pledged to support. They are elected by a statewide winner take-all-vote, except in Maine and Nebraska which allocate electors to the winner in each congressional district. (The second district in both states is in play this year). The result is that in November, voters are officially voting for the political party’s slate of electors, not the actual presidential and vice-presidential candidates.
Most states provide that the electors must follow the popular vote winner in casting a vote in the Electoral College. In the history of presidential elections, however, a total of 179 electors have not voted for the candidate to whom they were pledged (106 because of a personal preference; 71 because the candidate died before the election; and two abstained). Among the faithless electors in 2016 were four in Washington state when Democratic electors cast three votes for Colin Powell and one for Faith Spotted Eagle, and one in Colorado when an electoral vote was cast for John Kasich. In the Washington electoral college vote, the electors were fined. In Colorado, the elector’s vote was voided, and the elector replaced. The U.S Supreme Court resolved the matter this summer in Chiafalo v. Washington, 591 U.S. __, 140 S.Ct. 2316 (July 6, 2020), by deciding that electors are bound to follow state law. Thirty-two states and the District of Columbia mandate that electors vote for the candidate to whom they are pledged.
Possibility of Change
While Article II was amended by the Twelfth Amendment (election process for president and vice president) and the Twentieth Amendment (death of president before taking office), the Electoral College remains. An attempt to effectively replace the Electoral College has been proposed by advocates who want to see the election outcome decided by the national popular vote.
This effort promotes the creation of an interstate compact in which states with 270 electors, necessary to win the Electoral College, would agree to direct their electors to follow the national popular vote in casting their electoral votes. Sixteen states with 196 electoral votes have signed on to the compact. In nine states the compact has passed one chamber with a total of 88 electoral votes, which, if passed in the other chamber and signed by the governor, would take the total to 284, fourteen over that necessary to win an election. Once in place the compact surely will be challenged.
Change, even if slight, will also come from the decennial census. The Constitution, in Article I, section 2, clause 3, requires a census every ten years. From the census, the number of representatives is apportioned among the several states. It results in some states losing and other gaining representatives in Congress; thus, changing the makeup of the Electoral College. For example, in the 2000 recount Florida had 25 electoral votes, today it has 29. The predictions are that southern and southwestern states will gain representatives with the exception of California, where the population is declining, and northeastern states will lose representatives. The net result will be a slight change in the make-up of the Electoral College.
The Map in 2020
In 2016, Clinton carried the following states:
Northeast: 9 states (85) plus D.C. (3), three of the four Maine electoral votes (3), and Virginia (13), for a total of 104
Pacific Coast: California (55), Oregon (7), Washington (12), and Hawaii (4), for a total of 78
Rocky Mountains: Colorado (9), Nevada (6), and New Mexico (5), for a total of 20
Farm Belt/Great Lakes: Minnesota (10) and Illinois (20), for a total of 30.
Missing from this list were three states that were carried by Barack Obama (twice), John Kerry, Al Gore, and Bill Clinton) (twice): Pennsylvania (20), Michigan (16), and Wisconsin (10). The margin in those three states was a total of 77, 774 votes in an election with a total of 137,125,484 national votes.
The outcome of the 2020 election could be very different. While predictions are possible, there is the caveat that nearly everyone thought Clinton was on track to win in 2016. Here are my predictions as of mid-September. Others will probably view the electoral map differently. The predictions can be tracked on any number of web-based interactive maps, including Frontloading HQ and Twitter @FHQ, which aggregates state level polling data every day.
Looking at my map, Biden will receive between 278 and 341 electoral votes, without winning Iowa (6), Ohio (18), Georgia (16) or Texas (38), which would be a true blowout. But looking back at history it’s likely to be closer.
Biden starts with the Clinton states (232, the number before faithless elector defections) and then carries Michigan (16), Pennsylvania (20), and Wisconsin (10), which adds 46 electoral votes to bring the total to 278. Add to this mix the toss- up states of Arizona (11), Iowa (6), North Carolina (15), and Florida (29), which would add to Biden’s wins or replace a loss elsewhere.
Trump has it tougher. He either must repeat 2016 with 306 electoral votes, which seems unlikely, or else win most of the toss-up states. He starts with 127 solid and leaning Republican states. If he can add Florida (29), Georgia (16), Ohio(18), Iowa (6), Texas (38), and both of the Maine (2) and Nebraska (2) districts, he adds another 109 votes, but this brings him only to 236, thirty-four short of 270. Trump then needs Pennsylvania (20) and either Michigan (16) (272), or Pennsylvania and a 21-vote combo of Arizona (11) and Wisconsin (10) (277 total).
A possible tie could occur if Trump wins Pennsylvania, Arizona and Wisconsin, but loses Iowa, Maine (2) and Nebraska (2), resulting in 269-269 electoral votes each, in which case the election goes to the House of Representatives elected on November 3, 2020. The House would make the selection on a one state one vote basis. Before going to the House, a tie would also mean a close election in one or more states and state recounts, which would exceed Florida 2000 in intensity.
The outcome can come down to a few votes in a handful of states, as it did in 2016. To gain all of a state’s electoral votes, a presidential candidate needs to win by just one vote to receive (except as previously noted in Nebraska and Maine, which allocate electoral votes by congressional district). In any event, it is time for the Electoral College to be retired by amending the Constitution under Article V, to allow the national popular vote to determine the president and vice president.
John Hardin Young was on the Democratic National Committee team that handled the Florida recount during the 2000 election and the Bush v. Gore case. Young, of counsel to Sandler Reiff, is the chair of the American Bar Association’s Senior Lawyer Division.
(Credit to Steve Kamp, [email protected] and David Leip Atlas of Presidential Elections, www. uselectionatlas.org. for much of the data relied upon in this article.)