Every four years in America, we have to explain our confusing presidential election process all over again, and even then people walk away not understanding. Maybe especially foreigners, who might be more used to popular vote elections and parliamentary systems, are perplexed at how it works and why anyone would ever choose to conduct elections in this way.
Exacerbating this problem is no doubt the fact that while we actually elect the president one way, we pretend that we elect the president in a different way.
What we pretend is as follows: Each state is apportioned a number of "electoral votes", based on population, to select the President. Citizens of each state go to a polling place and cast a vote for the President. Whichever candidate wins the majority of the popular vote in a state receives all of that state's electoral votes (with exceptions of Maine and Nebraska), and whichever candidate receives 270 or more electoral votes wins.
The way we actually elect the President is as follows: Each state is apportioned a number of Electors. The office of Elector is uniquely invested with the power and responsibility to vote for the President. The states choose their Electors, and the Electors assemble to cast their votes for the President.
An Elector is like a Representative. A Representative represents your interests when voting for budgets and federal regulations. An Elector represents your interests when voting for President. Just as you have never voted on a federal budget, you have also never voted for the President (unless you are very active in a political party).
Under the Constitution, states are free to pick Electors however they want, provided it accords with representative democracy. We could imagine many ways of selecting Electors. But the way most states have actually chosen to select Electors is also probably the stupidest way imaginable, and leads to much confusion.
In most states, every candidate assembles as slate of Electors all pledged to vote for him/her. These slates of Electors are legally recognized by the election boards, and must swear legal oaths, and face legal penalties for not voting as pledged. Which slate of Electors is sent to cast ballots is chosen by popular vote. Citizens are usually presented a ballot with the names of the registered candidates. While it seems the question being asked of citizens is "Who do you choose as President?" the question actually being asked is "Which slate of Electors do you choose to vote for the President on your behalf?" Whichever candidate name receives the majority of votes, that candidate's entire slate of Electors is chosen to cast votes for the President on behalf of the entire state. And because those Electors are all pledged under law to vote for that candidate, this results in a winner-take-all system. Even if a swing state has a razor-thin margin of 49.9 to 50.1, all of its dozen or so of the Electors pledged to a single candidate in the slate are sent by the state. Or to put it in the pretend speak, all dozen or so electoral votes for the state go to one candidate.
This is the system we're used to, but has the flaw that it does not correspond to reality.
I think the problem with this process is that it conceals from us what is actually happening. It is trying to make one situation the reality by obfuscation and legal fines, while another situation is still what actually happens. We are trying to pretend there is a democratic, and not representational, vote for the President. We write on the ballot that we are voting for President, and we're not. We say that states send electoral votes, and they don't. We try to pretend that Electors don't exist, and maybe we prefer if Electors don't exist... but Electors voting for President is still what actually takes place.
I was pleased this year to see my state's ballot actually made the reality of the election clear. Rather than having simply the names of the Presidential candidates, it said instead "Electors for X", indicating the office I am actually voting for.
If the Electors for X receive a majority in my state, they will go on to actually vote for X... or they might not. Those Electors might decide to vote for someone else. If Electors pledged to X all vote for Y, the state might fine them, but their votes still go to Y. In a situation where X wins more than 270 "electoral votes", but the actual Electors decide to vote for Y instead, then Y actually wins the election. Which is to say, it is the votes of the actual Electors, and not the imaginary "electoral votes" of a state, which select the President.
We might ask at this point, what is the Electoral College supposed to be? Why is it set up this way? Why wasn't it set up for direct nation-wide democratic vote?
The US President has tremendous power under the Constitution. All executive power is vested in the President. The legislative branch is Congress, which is made of the Senate and House, with 538 people total. The judicial branch is a set of higher and lower courts culminating in a Supreme Court. The executive branch is the President. All other executive positions derive their power from the President, and serve at the President's pleasure. The Founders of our nation were at least partly concerned that the common people could be swayed by demagogues, and that this incredible power would end up in the hands of unsavory, corrupt, or tyrannous leaders. Go ahead and think of your least favorite past president; that's almost certainly the sort of person who the Founding Fathers had in mind. To prevent this, they deliberately set up the office of Elector, to add one step between the people and the power of the executive branch. For Elector, the people (through their state government) are to choose a responsible representative, and the Elector (vested with the confidence of the people as to character and discernment) will then go vote for the President. So the President is not approved by the people directly, but by a selected group of people, picked for their better judgment.
You can already see how the pledged Elector system, and Electoral slate system, undermines some of this intention.
Another concern of the Founders was that in a democratic vote, the more populous states would be able to overwhelm the interests of the less populous states. So the count of Electors deliberately includes the number of Senators, which also deliberately over-represents the less populous states. The Electoral College tending to favor less populous states is not an oversight or flaw but a deliberate design decision.
So why don't we treat the Electoral College as it actually is? Why don't we vote for Electors? Not pledged Electors to X, whose names aren't even on the ballot. I mean, why don't we actually vote for the Elector? Why am I not casting a ballot for Jimmy H Smith, Elector for District 32, my man in the Electoral College?
In part, because of parties. In part, because of the media. In part, because people do prefer this way.
Parties want to say who their candidate is. The primary is supposed to determine the candidate for that party. If unpledged Electors are the ones who ultimately choose the President, then the electoral college vote is the only "primary" that matters. You could imagine a primary challenger with huge support by the base, being selected by that party's Electors in favor of the official candidate. Changing would also require sharing. In the winner-take-all method, the dominant party in the state gets to ensure all of that state's votes go to their party. Which political party is really going to propose splitting those up? Since it benefits political parties, and since parties control the politicians, it will never be changed.
The media prefer this method. On the first Wednesday in November, the only reason we can say with confidence who the President-Elect is, is due to the system that we have. Otherwise we'd only be able to list the names of the chosen Electors and make guesses about their future votes. Newsrooms want the drama of tracking maps as they fill in red and blue and the ticker bars move one way and another. They want "X Wins Presidential Election" printed in the title on Wednesday morning. We could not talk about how many total votes X received vs Y, or what percent of the popular vote X received vs Y, or votes for X or Y broken down by demographic, if we did not have a system pretending the people cast votes for X or Y.
Lobbyists want to know who is likely to be in the White House, as early as possible, so they can figure out which to begin courting as soon as possible. When the two major parties put forth their candidates, those are the two people the lobbyists need to try to influence. Targets are focused. Having only two is manageable. Courting somewhere around 1076 possible nation-wide Electors is too much for them.
But also this method puts more control in the hands of the people. The office of actual consequence to the people is the Presidency, and not this office of Elector. Therefore, the people want to at least feel like they are voting for the office that matters. The confusing behind-the-scenes reality of pledged Electors and all that isn't relevant to the people. The people also don't want to feel like it is only a group of easily-corrupted fat cats in smoke filled rooms choosing the most consequential office in the United States.
But despite this being the method we've settled on for convenience, there are many other ways, and some more perspicuous ways, that we might select Electors.
The office of Elector is an office pertaining to the state, and it is in the state's discretion how to choose one. We could therefore view Electors more like Senators. Under the Constitution, before it was amended, Senators for each state were picked by the state's legislature, with vacancies appointed by the governor. It is therefore consistent with the Constitution's idea of representative democracy if Electors are chosen in the same way. We could imagine a state which has no presidential candidate on the ballot at all, and instead the state legislature gathers and selects a slate of Electors.
The office of Elector is like a Representative. Representatives are chosen by direct vote within a certain region. Therefore, it would be consistent with the Constitution if Electors were instead chosen by popular vote in a district. In fact, two states (Maine and Nebraska) use a variant of this method with pledged Electors. The number of Electors is always the number of Representatives plus Senators. There are two Senators, so those two votes go to the state as a whole. The others are divided in to districts. Whoever wins the majority vote in the whole state gets the two state votes, and whoever wins the majority in each district gets the district's vote.
But imagine a similar system without pledged Electors. Suppose instead, people actually voted for their Elector by name, by district. When you go to vote, you do not see the big presidential candidate names on the ballots. You see the names of two or more people from your district who you can select to send to the Electoral College vote. What would that do if one state did it? Or if all states did it?
If one state did it, it would seriously screw up a lot of accounting in elections. We would not know who the president was on election night (but maybe we could guess by political party), and we would not be able to say anything about popular vote because at least one state was excluded from the vote. It would be a weird oddity that annoyed pundits. But if all states did it, then I think it might even overthrow the two-party system.
There are other alternatives, both with and without pledged electors. But here's a system I want to propose. It's pointless to propose because it will never be adopted, but it is fun to think about.
Consider if instead of election, Electors were chosen by sortition. Election is when citizens vote to choose someone, while sortition is when a citizen is randomly chosen for service. Jury duty is one example of sortition in the modern United States. In ancient democracies, the legislatures were also picked by sortition, and this was even considered a crucial element of a democracy.
It would work as follows.
Each state is divided into electoral districts. How these districts are drawn up I'm not sure, but there are as many electoral districts as the state has Electors. From each electoral district, from the list of every eligible and registered voter, one is randomly chosen to be the Elector for that district. It might be you. It might be your neighbor. Perhaps, for the sake of accountability, two Electors from each state are appointed by the legislature. In total, 538 people will be chosen this way. Those 538 people get to vote for the president. The candidates then have to convince those 538 random people to vote for them.
The rest of us can carry on, uninterrupted by the relentless screeching media, the incessant campaign text messages, the ads pleading for campaign donations, or the pandering rallies with twerking prostitutes. No more endless debates about purged voter roles, voter ID laws, noncitizen or illegal voting, broken ballot machines, campaign finances, or any of the rest of this stuff. There are 538 votes, so it will be pretty easy to cross al the Ts on the voters.
An obvious concern would be corruption. It is significantly easier to buy 538 votes, than 500 million votes. It would also be significantly easier to police possible corruption with these 538 voters. But in fact, it could be possible to keep the identities of these 538 voters secret (as with jurors) until the vote is cast. Or until very near when the vote is cast. Let's say the day of the vote, the Electors gather to watch a live debate with the candidates and have a range of questions answered on a multitude of topics, then shortly afterward place a vote, in secret.
In what ways would picking the Electoral College by sortition be better?
The first is that it is better at representing the will of the people. The process of selecting a candidate for President is normally determined "for us" by insiders, lobbyists, and wealthy donors. Sortition removes the wall of division between the political class and the rest of us normal civilians. Since single moms, inner-city minorities, small business owners, or middle class dads are all equally likely to be chosen for Electors as millionaires, normal people will have their interests better represented by the Presidential candidate chosen.
The second is that it removes the grift, bribery, and frustration of the electoral process. There are no more campaigns. There are no more campaign ads, there are no more yard signs, there are no more lobbyists bribing with political contributions, there are no more secret deals and greased palms. Statistically speaking, the people picking the President are people similar to you, who care about the same things that you do, and who will be back to the same normal world as you in just a few years.
This method would also deeply upset the two-party system. When looking at 500 million+ votes spread over the entire nation and divided into states, it really is pointless to consider a third party. It requires convincing millions of people to unionize their votes. But with just 538 people, even a handful of holdouts could block the extreme candidates the two-party primary system favors, and lead to real possibilities for third parties.
Which highlights the fact, there are no two parties in this kind of vote. There is no machine-readable ballot printed with names registered at the state election board, with only so many names on it. All candidates, even the major party candidates, are write-in candidates. These Electors are not pledged, and while they might align with one party or another, they can ultimately pick anyone, anywhere in the country, to become President. An Elector might vote for his own daughter. The Electors might form a coalition to pick an Elector as President instead. A party of Electors might deliberate and decide to all give their votes to the first person to walk by a specific geocaching camera. And with randomly chosen citizens (and not party insiders who had to campaign), the usual Giant Douche or Turd Sandwich dilemma brought about by party interests, is entirely removed.
My ideal systems would involve the direct selection of unpledged Electors, either by election or sortition. I think I favor sortition. But it will never happen, precisely because it would ruin two-party control of the executive power of the US.
That said, to recap, the actual problem with the Electoral College isn't the one people usually moan about. The actual problem is that we pretend our elections work one way, when they actually work in a different way. Perhaps we could fix this by making our elections look more like how they actually work.
