Season 1, Episode 6 | Is the Electoral College the Best We Can Do?

Ever wonder why the candidate with the most votes doesn’t always win the presidency? Or question if the Electoral College still makes sense in today’s democracy? The Electoral College has been at the center of political debates for centuries, leaving many of us scratching our heads about its fairness and relevance. But how did this system come about, and why does it still determine our elections?

In this episode of This Constitution, hosts Savannah Eccles Johnston and Matthew Brogdon take a deep dive into the origins and evolution of the Electoral College, just in time for the 2024 presidential race. They explore the historical arguments that shaped its creation, the majority-takes-all system, and the mismatches between the popular vote and election outcomes that have left voters frustrated. From potential reforms like the National Popular Vote Interstate Compact to district-based voting, they break down the possibilities for change.

Curious to learn more and see how this system might impact the future of our democracy? Tune in now!

In This Episode

• (00:03) Introduction to the podcast  
• (00:41) Electoral College origins  
• (02:08) Alternatives to the Electoral College  
• (03:00) Impact of slavery on voting  
• (04:06) State-by-state voting process  
• (06:10) Historical variations in elector selection  
• (07:13) Electoral College's intended purpose  
• (09:30) Political parties and the Electoral College  
• (10:24) Current Electoral College systems  
• (11:28) Majority takes all system  
• (12:26) Mismatch between the popular vote and the Electoral College  
• (13:57) The psychology of the wasted vote  
• (14:53) Historical elections and popular vote discrepancies  
• (15:24) Majority vs. plurality in elections  
• (16:51) Geographic support and election outcomes  
• (18:38) Impact of the Electoral College on political parties  
• (19:08) Consequences of Electoral College outcomes  
• (21:18) Rural vs. urban voting dynamics  
• (23:14) Revisiting the district system  
• (25:24) Gerrymandering and electoral outcomes  
• (26:59) Cynicism towards gerrymandering solutions  
• (28:11) National Popular Vote Interstate Compact  
• (28:56) Texas Constitution and electors  
• (29:27) Elector commitment and penalties  
• (29:47) Theoretical vs. practical application 

Transcript

Savannah Eccles Johnston [00:00:27]:

In every episode of This Constitution, we dive into the decisions, debates, and stories that are still unfolding at the center of American civic life. Welcome to This Constitution. My name is Savannah Eccles Johnston.

Matthew Brogdon

And I'm Matthew Brogdon. 

Savannah Eccles Johnston

This week we're going to talk about the Electoral College and its place in 2024. Now, the Electoral College is just perpetually controversial. So, Matthew, what is the origin of the Electoral College? Because it's not like it's the single most important topic of discussion at the Constitutional Convention. So how do we get it?

Matthew Brogdon [00:01:00]:

Well, it's an irony because it's both. The thing that they have some of the most difficulty settling on at the convention, the mode of electing the President is really, it comes up repeatedly. They have difficulty settling on it. The Electoral College was proposed early on, but sort of rejected. They don't like the alternatives. They struggle with it. They come up with it. Ironically, when we get to the ratification debates, it's practically the least controversial thing in the Constitution. I mean, it evokes almost no dissent.

Savannah Eccles Johnston [00:01:28]:

Well, Hamilton mentions this in the Federalist Papers. He says, no one has mentioned this, but I think this is almost the perfect mode to select the President, which of course he would say there's.

Matthew Brogdon [00:01:37]:

Widespread satisfaction with this. At the founding, people thought, no, this is a very reasonable way to settle on a federal executive. So that's sort of its origins. I don't know that we've got to climb into the nitty gritty of just what the debates are in the convention. I would make one generalization.

Savannah Eccles Johnston [00:01:53]:

Yeah.

Matthew Brogdon [00:01:53]:

And that is one of the major alternatives to the Electoral College is legislative election. And people are very dissatisfied with that option. The one thing that the framers and the convention thought we can't do is have Congress pick the President. So the Electoral College was first and foremost an alternative to letting Congress make the decision. And secondly, I would actually argue it was a popular alternative to it. That is most of the discourse around it was this would result in the people picking the President.

Savannah Eccles Johnston [00:02:25]:

Right. But we also need to throw in the caveat here. That direct popular vote was brought up by James Wilson at the convention and it was met with silence. There was very little support for it. And later, Madison will say that one of the reasons why the direct popular Vote was not going to happen. It wasn't going to come to fruition because there were more voters in the North than in the south because of the proportion of enslaved persons in the South. So that did play some role in it. So yes, it's a popular alternative, but also they had the actual popular alternative and they rejected that one as well. So it's more middle ground.

Matthew Brogdon [00:03:00]:

There's a federalism thing going on here. Some of it has to do with slavery. How do you deal with who can vote in the presidential election? And if it's a national popular vote, then every person who casts a vote sort of counts. So then you've got an incentive. States with a broader franchise, more people who can vote, are going to get an advantage in the national election for president.

Savannah Eccles Johnston [00:03:21]:

Oh no.

Matthew Brogdon [00:03:22]:

Yeah, I know in retrospect that seems like a really good incentive. And for James Wilson, who's from Pennsylvania, that sounds great, right? You know, universal suffrage sounds wonderful to him. Most states, not just the South, it wasn't just slavery, but also a lot of states had property qualifications for voting and other things. So the Electoral College by, and let's be clear what the Electoral College does. It creates a system where we have 51 separate presidential elections. Every state holds a separate selection process for president. And then we have basically a formula for aggregating those votes and putting them all together. So the advantage to doing that was you could determine the influence of each state based on its representation in Congress. Right. Number of herit representatives plus two senators gives you the number of electoral votes. And then the state can perform its process of selecting whoever's gonna get their votes in whatever way they see fit. So that's really convenient. That leads to the whole problem of more people voting in this state than in that state. And you know, the framers really didn't wanna take a position on who ought to be able to vote. This is something students sometimes find surprising whenever we cover this, that the Constitution contains no actual qualifications to vote. I mean, it's totally possible that Massachusetts could let in an eight-year-old black female vote if they wanted to. Because the Constitution actually says exactly zero about who can vote. Instead, it just kicks this to the state. And basically in congressional elections, in selecting the president, who can vote depends on who the state lets vote. Now that's changed a little because we've got voting rights amendments that have said, well, the state gets to decide who gets to vote, but they can't do it on the basis of race. They can't do it on the basis of Sex still leaves a lot of ways the state can manipulate who can vote.

Savannah Eccles Johnston [00:05:20]:

Right. I do think we need to point out your mentioned property qualifications, but from my understanding, property qualifications were the most strict, and the most severe in the South as well. So this is in many ways a North and south who has more voters. Kind of a question, though not exclusively. So then we get this formula, this X +2 formula. X is the number of representatives you have in the House, which is based on population, and 2 is the number of senators. So it's just a mirror image of Congress, your state's power in Congress and all. And really all the Constitution says is each state gets X +2. And then how you pick those electors is up to you. They have to meet in your state capitol or somewhere in your state on a certain day in December and send the votes to us. And that's it. It's not even called the Electoral College. It's so bare-bones. And so it's completely up to state interpretation, which is how we get to all the systems we've used over time up to the majority taking all systems today.

Matthew Brogdon [00:06:21]:

Yeah, I mean legislatures can do it however they want. And that's important when we're saying you can pick them. The Constitution says the legislature of each state, Right. So you get a number of electors and it just says that each state shall select a number of electors through in a manner that the state legislature shall direct. That's it. And there's a lot of variation in this. Actually historically we haven't had much variation for about the last almost 200 years. Now we've had a pretty fixed way of doing this. It's not the only way.

Savannah Eccles Johnston [00:06:55]:

So some things that have happened before, we have had legislatures just straight up pick the electors. We have had, which I think was.

Matthew Brogdon [00:07:02]:

About half the states early on.

Savannah Eccles Johnston [00:07:04]:

This is early on. And then we've also had presidential elections where the names of electors, not the presidential candidate were on the ballot. And then of course the standard where it's the presidential candidate, not the elector on the ballot. We've kind of run the whole, the whole gamut with this. The last thing we should note before we move on to the modern-day electoral college is the original intention of the EC is to have this kind of intermediate body to deliberate on who should be president. That's what these electors are. And this falls apart basically immediately with the advent of political parties. So never has the Electoral College worked as it was intended to work. So today it really is just an X&2 system. It is not a deliberative body and no one would call it a deliberative body today.

Matthew Brogdon [00:07:52]:

Well, I think you say intended because you're assuming that Hamilton's argument for this is really clear. What is it? Federalist68. He makes this argument about the Electoral College and his. There is. It's a sort of refining body. It's representative. It's people with more information. There's a little bit of that. There's a lot less of that in the Constitutional Convention. So clearly it's Hamilton's intention. This is Hamilton's interpretation of it. I think it's really about avoiding the alternatives. I mean, in some ways, the Electoral College is what's left after you've avoided all the undesirable other ways of doing things. And there is one sense in which I think the framers at the convention broadly agreed it would serve a refining function, and that was simply availability of information. They thought it's just not likely that people in Georgia will know very much about politicians from Massachusetts and Pennsylvania. And so in a national popular election, there's just gonna be people on the ballot you know nothing about. You don't have a national political background. I mean, we had George Washington and stuff who were famous from the revolution. But, you know, nobody from Massachusetts other than political elites knew who Abraham Baldwin was from Georgia. And so the Electoral College was helpful because it would actually give you this way of putting people in a room who could make a better decision, not because they were wiser, but simply because they had enough information about politicians in other states to be able to figure out who's competent that lives in Massachusetts to be president.

Savannah Eccles Johnston [00:09:30]:

And you think that system, that just greater information system that has actually worked or that.

Matthew Brogdon [00:09:37]:

No, no, that does not bring you. But I think if we were. No, not at all. That becomes unnecessary eventually. We do get a national political discourse where we have national political figures and people know a bit more. But in 1787, if you're trying to figure out how are people in the Deep south gonna cast votes, and how are people way up in New England gonna cast votes when they're trying to judge the qualifications of politicians from all the way across the country. And westward expansion, of course, increases that. Now political parties, as you point out, wind up actually performing this function because it's party elites then that wind up deciding who's our candidate gonna be, right? So the political parties become the refining body of political elites that figure out who to make your candidate.

Savannah Eccles Johnston [00:10:17]:

So we're agreeing, then, that the original purpose of the Electoral College is to create some kind of intermediary deliberative body. And that never really worked. But a lot of that slack is picked up by political parties.

Matthew Brogdon [00:10:28]:

No, that's right.

Savannah Eccles Johnston [00:10:29]:

So let's Fast forward to 2024. There are really three systems out in the ether today on how to allocate Electoral College votes. 48 states use the majority take-all system. So where does this system come from? It's kind of our longest-standing system at this point.

Matthew Brogdon [00:10:50]:

Yeah, some states used this early on. It's not the predominant mode of doing it originally. A few states choose to do this Majority takes all where you hold an election in the state, whoever gets the majority of the votes or the most votes, I should say it's not the majority. Majority means 50% plus one winner takes all means whoever gets the most votes, Even if it's 26%, six other people get less. So this winner takes all the system that prevails in just a handful of states originally, but it gets more traction as you go forward. It really is picked up by Jacksonian Democrats. So this is a democratic reform. 1832, I think by 1832, only one state refused to use this system and that was South Carolina. South Carolina's legislature picked their electors directly, so they had no presidential election, which many other states didn't either. But they had no presidential election until 1832. All the rest of the states at that point had come around and adopted the Jacksonian winner-take all system. And this was just a response to 1824, like just a raw response. We had a horrible experience in 1824 and you know, Martin Van Buren sat down and said, how do we fix this? Like, how do we make sure 1824 doesn't happen again? Because there Congress got to pick the president for the second time like they had in 1800, though Congress picked the candidate who actually most of the country had voted for in 1800. In 1824, they wound up picking someone to be president and it's not the person who got the most votes.

Savannah Eccles Johnston [00:12:26]:

Right. And Jackson will campaign for the next four years on stolen elections because there's nothing new in American politics about which.

Matthew Brogdon [00:12:32]:

There was nothing corrupt. It was just Congress making a decision the Constitution had given Congress the power to make.

Savannah Eccles Johnston [00:12:37]:

Yeah. So again, there's nothing new in American politics. So there is a problem in whether this majority takes all the system which has dominated American politics, or this winner takes all the system for nearly 200 years. That is on five separate occasions, the winner of the popular vote has not won the majority in the Electoral College. And you've mentioned 1824. This is the first one where Jackson, not John Quincy Adams, wins the popular vote. And yet it's John Quincy Adams who is selected by the House of Representatives. So walk us through those other four examples of this mismatch between the EC and the popular vote and then we need to talk about whether is it a problem. Does it show some kind of lack of popular support for a president? Is it not a problem at all? Because that's not how we pick presidential popular votes.

Matthew Brogdon [00:13:31]:

First of all, the problem in 1824, you got four candidates, and nobody gets anywhere close to a majority. So with four horses in the race, the winner, I think Jackson had like 30% of the vote or something. So they want to solve that problem so that the winner takes all because then that'll make everything a two-horse race. This is the psychology of the wasted vote. If people know whoever gets the most votes is going to win, that really diminishes the rationale for voting for a third, fourth, or fifth party.

Savannah Eccles Johnston [00:13:56]:

They won't vote for Henry Clay.

Matthew Brogdon [00:13:57]:

Right? Yeah. So they're going to go, I'm not going to throw away my vote on Henry Clay. There's no way he's going to win. So I'd better pick one of the two most popular people in this race who's closest to me. So that's the psychology of the wasted vote. I don't want to throw my vote away. A winner-take-all system always employs the psychology of the wasted vote to encourage the voter to pick one of the two most popular candidates. So it pushes all the voters into two big tents. Basically it reinforces a two-party system, which is why Jacksonians wanted to use it, and makes it more likely that whoever wins in fact has a majority or close to a majority in order to win. Okay, so this fell apart at least four times. And just to make it clear, that's 1876, 1888, 2000, and 2016. Right. Okay. I would actually add a fifth because I think 1960 also fits this category.

Savannah Eccles Johnston [00:14:52]:

Yes. I'm not gonna let this one go.

Matthew Brogdon [00:14:54]:

Okay. Yeah, we'll see if we have time to discuss that. But I think this is also true of Nixon and Kennedy. I think Nixon actually barely won the popular vote in 1960 and Kennedy became president because of the electoral college, it depends on how you count racist votes in Alabama and Mississippi that went to a Dixiecrat candidate instead. So these four elections, all of these, let's be clear what happened in all of these. The person who got the most popular vote was a saucy election. In none of these did anyone get a majority of the popular vote? So this is a very important fact. It's never been the case that someone won a majority of the popular vote, 50% plus one, and lost the electoral college. It's always been plurality winners, which means in all of these elections, there's some third party or something siphoning off part of the popular vote and preventing anyone from winning an outright majority. So in those four, 1876. 1876 is not as terribly close, but because the country's still sectioned and voting in a sectional fashion as an outcome of the Civil War, Democrats are still dominating the South, and Republicans dominate the North. The west is divided. And because of that, Democrats win massive majorities in the South. Like they win states by 80% or more. Republicans have a little more reach, they win more states, but by a narrower margin. And as a result of that, that means that Republicans get rewarded because, because what the winner take all system does is it says if you're winning massive majorities, 75, 80, 85% majorities in certain states, you're gonna kinda get punished because the person who's winning a nearer majority in more places is gonna get rewarded. Because if I win a state by 80% or if I win a state by 55%, and we're using the winner take all system, I still get all the state's electoral votes. So what I actually want to do, my strategy is to win by narrow majorities in as many places as possible. So the winner takes all the system, besides reinforcing a two party system, also encourages parties to make sure they have a broad geographic base of support. They don't want to have a situation where all their support is concentrated in very particular areas. So this is why in 1876, Republicans got rewarded because they've got narrow majorities in a few more places, they win more of the west, even though it's not by huge margins. In 1888, that election had almost 11 million votes cast. And the margin of victory is less than 1,000 votes out of 11 million. And this is in the 19th century age of stuffing ballot boxes. So I mean, who knows who actually received the Most votes in 1888, it was a razor thin margin. So there you had a very, very close election. And it was just, you know, again, the candidate with a little more geographical support, a little more geographical distribution got rewarded for it. They happened to be the Republican in both cases. 1876, 1888, 2000, something similar happened. We get a very close division and it comes down to one state, Florida, how we count their votes. And that came out in favor of bush. And then 2016 was, Trump gets the advantage because Republicans can take more states by narrow margins. Democrats won some very populous states like New York and California by very large margins. They gave them a very big advantage in the national popular vote, but they got punished a little because Trump won some very narrow victories in a whole bunch of Midwestern states and some other places.

Savannah Eccles Johnston [00:18:38]:

Right. This raises an important question. Let's leave 1888 and 1876 behind because we just don't care at this point and focus on just 2000, and 2016. The country has changed. We're less state-bound than we were before. So maybe it might matter more when there's a difference between the Electoral College winner and the popular vote winner. Does it matter in 2024, let's say 2024, the candidate wins the Electoral College, but not the popular vote? Does it matter? Is it a crisis for us? Is it a Democratic crisis for us or not?

Matthew Brogdon [00:19:13]:

Can I be honest about why it's a crisis? The reason we think that this is a crisis is because every time this has happened, unless we count 1960, it's benefited Republicans. Okay? Now, the Republicans of 1876, and 1888 are not the Republicans of 2000 and 2016. Those are different. They have the same names for different parties. But I think the fact that when it has happened, it has been to the benefit of one political party consistently is what really rubs people raw. If it was, boy, sometimes we have very closely divided elections and sometimes the person, if that was more of an, I guess we could say equitable outcome in terms of trading blows, I doubt it would be as controversial, but it would still rub people the wrong way.

Savannah Eccles Johnston [00:20:01]:

Right. Because although it's always been Republicans who have benefited, it's always also been Republicans who have not won the popular vote. Meaning they have less support among the American people than the Republicans, but they.

Matthew Brogdon [00:20:15]:

Have more geographically distributed support.

Savannah Eccles Johnston [00:20:17]:

Right.

Matthew Brogdon [00:20:18]:

They're supported by more states.

Savannah Eccles Johnston [00:20:19]:

Oh, agree. But the question we're asking here is, does it matter that a party that consistently wins fewer votes can take power because of geographical distribution?

Matthew Brogdon [00:20:31]:

I think that was not a problem in the 19th century because we were still convinced that our system was a federal system. That was the federal character. The fact that we are still distinct states that each have a stake in the Union, and have equal representation in the Senate, was an important component of American constitutionalism. Our character as a nation was in part that we were a federal republic. And the Electoral College, as the Senate says, the system's actually going to be sort of biased in favor of having support from more states.

Savannah Eccles Johnston [00:21:05]:

Right.

Matthew Brogdon [00:21:06]:

The Senate does that. The presidential election does it a little. It's mixed. So it's mostly distributed based on population. But the fact that you get two electoral votes for each senator means smaller states get a bit of a bump. Actually, what it means is rural states get slightly disproportionate influence. And that means now, if our rural states, if our political parties were sort of equally dividing the rural vote, this would not come out consistently in favor of one political party or the other. But the fact is, American politics has consistently been marked by an urban, rural divide that tracks along party lines disproportionately. And that means whoever's getting the rural vote actually gets a little bit of a bump in the Electoral College. Now, I will say I heard a British scholar recently discussing this with colleagues, and he pointed out to them that one of the things about the American Electoral College is that it gives a little bit of a preference to rural voters and rural states. He said, but it's quite common for very large, geographically large political systems have to pay some credence to and give some concession to people who are far from the centers of power, because otherwise there's a question about why do we stick around like we're so far, you know, our economy's controlled by people in these distant, concentrated areas, largely on our coasts. So there's a bit of a concession to people who live far from the center of power to stay in this union. Have to give you some sort of concession. You could describe what happened at the Constitutional Convention that way in terms of small states and large states in a way.

Savannah Eccles Johnston [00:22:42]:

Right.

Matthew Brogdon [00:22:43]:

So if you think that's a good thing, if you think that's something that can legitimately be represented in an electoral system, then that's a reason to keep the Electoral College. If you think that's illegitimate and the only thing that matters is national majority rule, that that's the measure of whether we have a democratic system and geographic distribution doesn't matter and geographic representation doesn't matter, then it's illegitimate.

Savannah Eccles Johnston [00:23:06]:

Right. So again, the question isn't, did this work in the 19th century? The question is, does it make sense in 2024?

Matthew Brogdon [00:23:12]:

Well, we're still a federal republic, so.

Savannah Eccles Johnston [00:23:14]:

Right. But let's take the next step, which is that you can keep the Electoral College and move away from the winner-take-all system, which is more likely to produce a difference between the popular vote and the Electoral College vote, towards the district system, which is far less likely to produce that kind of result. And still maintains the integrity of the federal system. So two states do this. You have Maine and you have Nebraska. And Nebraska is under a lot of heat for its system right now because heaven forbid it could give a vote to Kamala Harris in the electoral college. So the district system is perfectly constitutional. Why don't we say most states?

Matthew Brogdon [00:23:51]:

Actually this was the most common way of doing this actually in the early Republic.

Savannah Eccles Johnston [00:23:54]:

Well, I guess we should explain what it is first. So basically how the district system works is those X votes, the house representative votes, they go on a state or on a district by district winner takes all in the district system. And then the two senate votes go to the statewide winner. So you divide them up versus in a majority takes all or the winner takes all systems. It's just all the votes go to, to the winner of the vote in the entire state. Why don't more states do this? It seems like a really great middle ground.

Matthew Brogdon [00:24:25]:

On paper, it looks like an excellent idea. It works just fine in Maine and Nebraska. I think the one strike against it, I mean, on the one hand, would mitigate this somewhat. I will point out it is still mathematically possible to have the district system. Yes, but because districts are pretty big, it's basically congressional districts. So those are districts with about 800,000 people in them. Because those districts are large, any district-based system of representation can still result in a disproportionate outcome. But it is not. That's because you could still have, you know like urban districts go 80% for one candidate, but then rural districts may go 80% for the other. So again, if you have a candidate who wins a lot of districts by very narrow margins and then you have another candidate who's winning their districts by massive margins, it's going to matter the number of districts you win, not by how large a margin you win them. Now it will be less likely. It would be less frequent.

Savannah Eccles Johnston [00:25:21]:

Right. Far less frequent is what we're hoping for.

Matthew Brogdon [00:25:24]:

It seems to me like it would double the stakes of redistricting. Right. So now you have the possibility of gerrymandering the presidential election like you do Congress. Yes. Just like you do seats in Congress. So now any disproportion that state legislatures or state redistricting commissions create with their congressional seats is then going to be reflected in the presidential election. Now that may not be totally true because people do not always vote the same way in legislative and presidential elections. People do split their ballots. So that might not be. That might attenuate it somewhat, but that's the strike against it is that it would raise the stakes of redistricting and give whoever is doing the redistricting power to gerrymander the presidential election.

Savannah Eccles Johnston [00:26:09]:

Again, I still don't think that's really a strike against it. I think it's yet another incentive to end gerrymandering and the capacity for gerrymandering among state legislators here in the United States.

Matthew Brogdon [00:26:20]:

I guess I'd like to see this community of district-based representation where gerrymandering doesn't exist.

Savannah Eccles Johnston [00:26:26]:

Right. Well, I'm not sure it's great.

Matthew Brogdon [00:26:29]:

We'll need a whole episode to define what gerrymandering is actually, which I'm not sure is possible either.

Savannah Eccles Johnston [00:26:34]:

Right. So I guess if you don't believe that it's possible to combat gerrymandering, which is a terrifying idea, then you have to reject this system. But if you do think that there are methods to combat gerrymandering and that in fact we probably should combat gerrymandering simply for the sake of the Congress itself or the House of Representatives, then you can be open to the district system. But I guess it depends on how cynical you are.

Matthew Brogdon [00:26:59]:

Well, gerrymandering is a bad thing, I think. How you fix it, I.e. Someone has enough information to know if I move this line, the other person wins. So whoever that person is is deciding the outcome of the election. So I think the fundamental problem with Jerry, I wish we were more ignorant. Like, I wish we did not have the statistical sophistication we did that you sort of were blindfolded and just guessing when you went, I don't know. We put this neighborhood in. I'm not sure what that'll do. The fact is, when you go in the computer model and you move the line and you say, I'm gonna put that apartment complex in here. You know, statistically what that's likely going to do in the election. So I think that level of information is the danger. Maybe we should just ban the people making the decisions from having access to demographic information and they just have to get out the map and sort of do it the best they can based on a guess. I actually think that would take away the power to actually be able to do this deliberately.

Savannah Eccles Johnston [00:27:55]:

Either you do that kind of blind system or you give it to a computer model, which of course has biases.

Matthew Brogdon [00:27:59]:

And then AI decides who represents it.

Savannah Eccles Johnston [00:28:01]:

But both of those seem better than the boys in the Utah state legislature. So alternatives. But we need to have an entirely different episode on gerrymandering. That's not this episode.

Matthew Brogdon [00:28:09]:

One of these days it is not.

Savannah Eccles Johnston [00:28:10]:

But let's go to the third system, this one is gaining traction across the country, and it is the National Popular Vote Interstate Compact, which is a long name. So what this does is each state joins the compact by promising that they will pledge their Electoral College votes to the winner of the direct national vote. But it's not activated until you have secured 270 electoral college votes. Right now, they're somewhere in the low 200s. So we're not there yet. But Maine recently joined, and Colorado has joined. So this is gaining traction. It won't happen until you get swing states and Republican states to join. But this also seems like a perfectly constitutional way to allocate electors.

Matthew Brogdon [00:28:56]:

Oh, absolutely. Well, the state legislation. Let's talk about what the Texas Constitution says. The text says that there shall be a number of electors selected in a manner to be directed by the state legislature in each state. It does not say that the state legislature can tell those electors how to vote. State legislatures can pick how to pick the electors. I just think the Supreme Court got this dead wrong a few years ago. What was the case? The Colorado, Washington state case.

Savannah Eccles Johnston [00:29:26]:

But nevertheless, all states do tell their electors how to vote. Now, you can get around that. You can vote how you want. You can face penalties.

Matthew Brogdon [00:29:34]:

Legally, all states have committed electors, but whether they're bound in the form of some punishment, whether they're bound actually varies from state to state.

Savannah Eccles Johnston [00:29:41]:

Right.

Matthew Brogdon [00:29:42]:

Most states do not have any kind of consequence for voting, contrary to your commitment.

Savannah Eccles Johnston [00:29:46]:

Right. So theory is one thing. Practice is a completely different thing. In practice, states do tell, according to their rules, how to allocate votes. So let's go with that.

Matthew Brogdon [00:29:54]:

Yes. So I mean, states could. States could do this. So they could. They basically be telling their electors that whoever wins the national popular vote, that person's slate of electors. So if Colorado adopts this and Donald Trump wins the national popular vote and we've got the National Popular Vote Compact, then Colorado would be committed to sending its slate of electors who are committed to Trump, would then be their electors, and they would go in December and meet and cast their electoral votes, presumably for the person they committed to vote for Donald Trump. And I think that also reveals the potential problem with this is I'm actually sort of waiting perhaps with some trepidation, but with a little bit of glee, to see what happens when some poor state has decided to join this compact. Their voters vote like 70% for, say, the Democratic candidate in the election. And then because the Republicans won the national popular vote. Now they have to look at their voters and say, I know who you voted for, but all of our electoral votes are going to the other person.

Savannah Eccles Johnston [00:30:59]:

Right.

Matthew Brogdon [00:31:00]:

And I think the public is going to have a fit.

Savannah Eccles Johnston [00:31:04]:

Oh, yeah.

Matthew Brogdon [00:31:04]:

When that happens.

Savannah Eccles Johnston [00:31:05]:

Yeah. This is just rife with potential catastrophe.

Matthew Brogdon [00:31:08]:

I think it's because people are thinking of it as an abstraction. We want the winner of the national popular vote to win, but it's going to be very hard to explain to the people in your state why their electoral votes are not being cast for the person who clearly won their state.

Savannah Eccles Johnston [00:31:22]:

Right. Well, the benefit of this, is you can see you don't have to actually get rid of the Electoral College. It's a workaround. But also that means that states still have that power and there will be some catastrophic situation where Massachusetts has to cast its votes for Donald Trump.

Matthew Brogdon [00:31:35]:

So I think it's too much. There are drawbacks to going to a national popular vote, actually, but this is actually worse than going to a national popular vote because while it's hard to explain to people that we have 51 separate elections for president, and whoever wins your state, wins your state. Right. Then we just aggregate all that in the Electoral College. People don't always understand that. Well, that's not hard to explain. It's going to be hard to explain to people why somebody lost their state and still got all the electoral votes. It's going to be difficult.

Savannah Eccles Johnston [00:32:06]:

Right, right. So those seem to be the three ideas out there. Of course, there's the fourth, which is just to eliminate the Electoral College, which would require an amendment. I don't think there's enough of a popular movement.

Matthew Brogdon [00:32:19]:

Well, and can I point out why? Because I think one measure of whether an electoral system works is whether the person who gets the most votes wins. It's a very important, possibly the first priority. But I think there's one that's equal to it in importance for the durability and stability of a constitutional order, and that's that you need a decisive outcome to elections. And the problem with raw popular vote outcomes is exactly the thing the Electoral College usually deals with, which is there's normally more than two people involved, and actually one-third of the time, one-third of all presidential elections, since we've had the general ticket system, the winner take all system, which reinforces two parties 1/3 of the time, the country still does not pick a majority winner. A third of the time in our elections, no one wins a majority. So a third of our presidential elections historically have been close enough that nobody gets 50%. And the function the electoral college, usually with those four exceptions we talked about, the function the Electoral College usually plays is it takes that very narrow margin of victory and inflates it. So normally a narrow margin of victory in the popular vote translates into a large margin of victory in the Electoral College, except those four exceptions. And I think that's actually the most. The great success of the Jacksonian reform in Winner Take All was that they did create a usually very decisive system of election, even when otherwise you've got close elections that could be contested.

Savannah Eccles Johnston [00:33:49]:

Right. Decisive and thus stable.

Matthew Brogdon [00:33:51]:

And thus stable. So I want both. If you can give me a system of election that gives us a consistent system where the. The person with the most votes wins and it's stable and produces outcomes decisively at least as frequently as the Electoral College. And compared to other systems in other countries, the Electoral College has actually produced decisive outcomes very consistently. So that's what I need. I need both of those criteria. And I think most of the time we only think about one right? Popular vote.

Savannah Eccles Johnston [00:34:22]:

But that's not to say that the Electoral College has to always look the way that it looks now. States can allocate their votes differently.

Matthew Brogdon [00:34:28]:

And I think the district-based system would still do this.

Savannah Eccles Johnston [00:34:31]:

Yeah. Yes, it would. And that there is some kind of homage to and power for states. Because you're right, we are still a federal system. The states still matter. And I like that the Electoral College makes that clear. But it doesn't necessarily have to be the winner-takes-all-all system if that's what makes you angry about the Electoral College. So I think this was.

Matthew Brogdon [00:34:51]:

Well, it's gotta be a winner-take-all all at some level.

Savannah Eccles Johnston [00:34:53]:

Okay.

Matthew Brogdon [00:34:54]:

The winner takes all in the church, right?

Savannah Eccles Johnston [00:34:57]:

Yes.

Matthew Brogdon [00:34:57]:

At some point, elections do have to be.

Savannah Eccles Johnston [00:35:00]:

You know what I meant.

Matthew Brogdon [00:35:01]:

I do. I'm giving you a really hard time.

Savannah Eccles Johnston [00:35:04]:

I think this was useful for people though, for moving forward. Good.

Matthew Brogdon [00:35:08]:

We're just beginning to explore the rich legacy of America's Constitution. If today's discussion deepened your understanding, share this episode with a friend or student and subscribe to continue learning with us. For more insights and exclusive content, visit www.uvu.edu. Thank you for joining us and we look forward to exploring more with you on this Constitution brought to you by the UVU Center for Constitutional Studies, home to Utah's Civic Thought and Leadership Initiative.