Why don't Democrats win every election?

Electoral College and the Power of the States: This is how the United States vote

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Guest contribution by Prof. Dr. James Fowkes

03.11.2020

The US president will be elected on Tuesday. The decisive factor is the result in the electoral college. But what is it and why does a presidential candidate not have a national majority? James Fowkes explains the US electoral system.

The US electoral system is a federal compromise. As with several other regulations in the US Constitution, it is one between the large and small states. If the person with the most votes overall were elected president, states with a larger proportion of the population would dominate the smaller states. On the other hand, if each state had the same weight and one vote, Wyoming's 580,000 voters would have the same influence on the outcome of the election as California's 39.51 million.

The Electoral College thus represents a compromise between these two extremes. It also approaches another compromise in the US constitution, namely the establishment of the legislature. Each state has two senators in the Senate, but the states are represented in the House of Representatives according to their proportion of the population. Tiny Delaware and sparsely populated North Dakota each receive one seat, while Texas receives 36 and California 53.

Adding the seats

The electoral college borrows this system. The Senate seats of the respective state are added to its seats in the House of Representatives and this then results in the number of its seats on the electoral college. Delaware and North Dakota each have three seats - two for their two senators plus one seat in the House of Representatives, while Texas has 38 seats and California has 55. So population is an important factor in the number of seats on the electoral college, but it's not that only relevant factor. It's also about representing the smaller states.

This formula results in a total of 535 seats in the electoral college (100 senators plus 435 members of parliament (Congresswomen and Congressmen). In addition, there are three more seats for the District of Columbia, which is not a state itself, but is still represented as one in the electoral college which goes back to a compromise from 1964. Together this results in 538 seats - and thus 270 votes for a victory in the electoral college.

There are real people behind the electoral college

How does the magic number 270 relate to the number of actual voters? The electoral college consists of electors, who are usually loyal party members. In rare cases it can happen that these people ignore the election result in their respective state and make their own decision. Then they are so-called "unbelieving voters" (faithless electors).

There is a certain risk associated with this - however, faithless electors have so far only existed for symbolic reasons and their votes only actually influenced the outcome of an election once, namely in the vice-presidential elections of 1836. In practice, the electors vote according to their respective state regulations These may vary, as the US Constitution leaves this to the discretion of the states. In almost all states the rule is that the person with the most votes also receives all the votes of the respective state in the electoral college.

It is therefore mostly irrelevant with what exact number of votes candidates win a state, only that they receive a majority of votes overall.

When Donald Trump received only 5,352 more votes in Michigan than Hillary Clinton in the 2016 presidential election - his narrowest victory in percent - he therefore received all of that state's votes in the electoral college. When he won a landslide victory over them in West Virginia, he got all of West Virginia’s vote too - so the percentage difference didn’t matter.

The number of votes has no influence on the result

For this reason it is possible that a candidate receives a majority of votes at national level, i.e. wins the so-called popular vote, but loses in the electoral college. However, this rarely happens, namely only when a candidate receives a large number of votes in individual states without winning in a sufficient number of states. This happened only four times in US history, in 2016, 2000, and twice in the late 19th century.

For example, Hillary Clinton received 2.8 million more votes than Trump in the 2016 election, but still lost the election in the electoral college. In California alone it had more than four million more votes than necessary, but for a victory it would have only needed a little more votes in some of the major states. In fact, it would have needed about 11,000 more votes in Wisconsin, about 5,000 more in Michigan, and about 22,000 more in Pennsylvania. With these votes it would have triumphed in these states and thus exceeded the mark of 270 votes in the electoral college.

At the same time, a compromise between the parties

Currently, therefore, the Democrats in the US would benefit from an electoral system in which the total number of votes mattered. Because it was Democrats, Gore and Clinton who each received a higher total number of votes in 2000 and 2016, but still lost the election in the electoral college. Conversely, Republicans would benefit from a system in which each state would have as equal weight for the presidential election as possible. As a result, most of the Republicans have had a majority in the Senate for the past 25 years.

The electoral college is therefore not an ideal rule for either the Democrats or the Republicans: for the Democrats, because a majority of all votes cast is not important, for the Republicans, because the system weights the population so highly in comparison to the individual states. That is the nature of a federal compromise.

Reform could be easy

Of course, that does not mean that the US population continues to support the electoral college's compromise solution. The USA has grown together as a nation-state over the past two centuries and national consciousness is more pronounced than it was 200 years ago.

The so-called National Popular Vote Interstate Compact currently contains the most promising reform proposal. States that join the compact declare that they will not vote on the basis of the respective majority of votes in their own state in the electoral college, but rather to orientate themselves on the outcome of the popular vote in accordance with the outcome of the election at the national level. If a sufficient number of states join the Compact, whose share in the electoral college is more than 270 votes, this would ensure that the candidate who receives the highest total number of votes actually wins in the electoral college and becomes president.

However, the Compact will only come into force when enough states join. This is currently not the case, the member states' share of the vote in the electoral college is 187 and thus below the required 270. Colorado's membership, which would bring the Compact another nine votes, is the subject of a referendum in this state, which will take place on Tuesday Election Day - takes place. However, nothing can change that for the current election.

In the presidential elections, the magical number of 270 votes in the electoral college is again important, and thus primarily on which states win the candidates, not on what proportion of the total number of votes they receive. It is not the easiest system, but federal compromises are seldom easy.

The author Prof. Dr. James Fowkes, LL.M. (Yale) is a professor at the Westfälische-Wilhelms-Universität Münster and holds a professorship for foreign and international law.