September 20, 2024

On September 16, CNN senior data reporter Harry Enten wrote that while it’s “[p]retty clear that [Democratic candidate Vice President Kamala] Harris is ahead nationally right now… [h]er advantage in the battlegrounds is basically nil. Average it all, Harris’[s] chance of winning the popular vote is 70%. Her chance of winning the electoral college is 50%.” Two days later, on September 18, Senator Lindsey Graham (R-SC) skipped votes in the Senate to travel to Nebraska, where he tried to convince state legislators to switch the state’s system of allotting electoral votes by district to a winner-take-all system. That effort so far appears unsuccessful. 

In a country of 50 states and Washington, D.C.—a country of more than 330 million people—presidential elections are decided in just a handful of states, and it is possible for someone who loses the popular vote to become president. We got to this place thanks to the Electoral College, and to two major changes made to it since the ratification of the Constitution. 

The men who debated how to elect a president in 1787 worried terribly about making sure there were hedges around the strong executive they were creating so that he could not become a king. 

Some of the delegates to the Constitutional Convention wanted Congress to choose the president, but this horrified others who believed that a leader and Congress would collude to take over the government permanently. Others liked the idea of direct election of the president, but this worried delegates from smaller states, who thought that big states would simply be able to name their own favorite sons. It also worried those who pointed out that most voters would have no idea which were the leading men in other states, leaving a national institution, like the organization of Revolutionary War officers called the Society of the Cincinnati, the power to get its members to support their own leader, thus finding a different way to create a dictator. 

Ultimately, the framers came up with the election of a president by a group of men well known in their states but not currently office-holders, who would meet somewhere other than the seat of government and would disband as soon as the election was over. Each elector in this so-called Electoral College would cast two votes for president. The man with the most votes would be president, and the man with the second number of votes would be vice president (a system that the Twelfth Amendment ended in 1804). The number of electors would be equal to the number of senators and representatives allotted to each state in Congress. If no candidate earned a majority, the House of Representatives would choose the president, with each state delegation casting a single vote.

In the first two presidential elections—in 1788–1789 and 1792—none of this mattered very much, since the electors cast their ballots unanimously for George Washington. But when Washington stepped down, leaders of the newly formed political parties contended for the presidency. In the election of 1796, Federalist John Adams won, but Thomas Jefferson, who led the Democratic-Republicans (which were not the same as today’s Democrats or Republicans) was keenly aware that had Virginia given him all its electoral votes, rather than splitting them between him and Adams, he would have been president. 

On January 12, 1800, Jefferson wrote to the governor of Virginia, James Monroe, urging him to back a winner-take-all system that awarded all Virginia’s electoral votes to the person who won the majority of the vote in the state. He admitted that dividing electoral votes by district “would be more likely to be an exact representation of [voters’] diversified sentiments” but, defending his belief that he was the true popular choice in the country in 1796, said voting by districts “would give a result very different from what would be the sentiment of the whole people of the US. were they assembled together.” 

Virginia made the switch. Alarmed, the Federalists in Massachusetts followed suit to make sure Adams got all their votes, and by 1836, every state but South Carolina, where the legislature continued to choose electors until 1860, had switched to winner-take-all. 

This change horrified the so-called Father of the Constitution, James Madison, who worried that the new system would divide the nation geographically and encourage sectional tensions. He wrote in 1823 that voting by district, rather than winner-take-all, “was mostly, if not exclusively in view when the Constitution was framed and adopted.” He proposed a constitutional amendment to end winner-take-all.

But almost immediately, the Electoral College caused a different crisis. In 1824, electors split their votes among four candidates—Andrew Jackson, John Quincy Adams, Henry Clay and William Crawford—and none won a majority in the Electoral College. Although Jackson won the most popular votes and the most electoral votes, when the election went to the House, the state delegations chose Adams, the son of former president John Adams.

Furious Jackson supporters thought a developing elite had stolen the election, and after they elected Jackson outright in 1828, the new president on December 8, 1829, implored Congress to amend the Constitution to elect presidents by popular vote. “To the people belongs the right of electing their Chief Magistrate,” he wrote; “it was never designed that their choice should in any case be defeated, either by the intervention of electoral colleges or…the House of Representatives.” 

Jackson warned that an election in the House could be corrupted by money or power or ignorance. He also warned that “under the present mode of election a minority may…elect a President,” and such a president could not claim legitimacy. He urged Congress “to amend our system that the office of Chief Magistrate may not be conferred upon any citizen but in pursuance of a fair expression of the will of the majority.”

But by the 1830s, the population of the North was exploding while the South’s was falling behind. The Constitution counted enslaved Americans as three fifths of a person for the purposes of representation, and direct election of the president would erase that advantage slave states had in the Electoral College. Their leaders were not about to throw that advantage away.

In 1865 the Thirteenth Amendment ended slavery (except as punishment for a crime) and scratched out the three-fifths clause, meaning that after the 1870 census the southern states would have more power in the Electoral College than they did before the war. In 1876, Republicans lost the popular vote by about 250,000 votes out of 8.3 million cast, but kept control of the White House through the Electoral College. As Jackson had warned, furious Democrats threatened rebellion. They never considered Republican Rutherford B. Hayes, whom they called “Rutherfraud,” a legitimate president. 

In 1888 it happened again. Incumbent Democratic president Grover Cleveland won the popular vote by about 100,000 votes out of 11 million cast, but Republican candidate Benjamin Harrison took the White House thanks to the 36 electoral votes from New York, a state Harrison won by fewer than 15,000 votes out of more than 1.3 million cast. Once in office, he and his team set out to skew the Electoral College permanently in their favor. Over twelve months in 1889–1890, they added six new, sparsely populated states to the Union, splitting the territory of Dakota in two and adding North Dakota, South Dakota, Montana, Washington, Idaho, and Wyoming while cutting out New Mexico and Arizona, whose inhabitants they expected would vote for Democrats.

The twentieth century brought another wrench to the Electoral College. The growth of cities, made possible thanks to modern industry—including the steel that supported skyscrapers—and transportation and sanitation, created increasing population differences among the different states.

The Constitution’s framers worried that individual states might try to grab too much power in the House by creating dozens and dozens of congressional districts, so they specified that a district could not be smaller than 30,000 people. But they put no upper limit on district sizes. After the 1920 census revealed that urban Americans outnumbered rural Americans, the House in 1929 capped its numbers at 435 to keep power away from those urban dwellers, including immigrants, that lawmakers considered dangerous, thus skewing the Electoral College in favor of rural America. Today the average congressional district includes 761,169 individuals—more than the entire population of Wyoming, Vermont, or Alaska—which weakens the power of larger states.  

In the twenty-first century the earlier problems with the Electoral College have grown until they threaten to establish permanent minority rule. A Republican president hasn’t won the popular vote since voters reelected George W. Bush in 2004, when his popularity was high in the midst of a war. The last Republican who won the popular vote in a normal election cycle was Bush’s father, George H.W. Bush, in 1988, 36 years and nine cycles ago. And yet, Republicans who lost the popular vote won in the Electoral College in 2000—George W. Bush over Democrat Al Gore, who won the popular vote by about a half a million votes—and in 2016, when Democrat Hillary Clinton won the popular vote by about 3 million votes but lost in the Electoral College to Donald Trump. 

In our history, four presidents—all Republicans—have lost the popular vote and won the White House through the Electoral College. Trump’s 2024 campaign strategy appears to be to do it again (or to create such chaos that the election goes to the House of Representatives, where there will likely be more Republican-dominated delegations than Democratic ones).

In the 2024 election, Trump has shown little interest in courting voters. Instead, the campaign has thrown its efforts into legal challenges to voting and, apparently, into eking out a win in the Electoral College. The number of electoral votes equals the number of senators and representatives to which each state is entitled (100 + 435) plus three electoral votes for Washington, D.C., for a total of 538. A winning candidate must get a majority of those votes: 270.

Winner-take-all means that presidential elections are won in so-called swing or battleground states. Those are states with election margins of less than 3 points, so close they could be won by either party. The patterns of 2020 suggest that the states most likely to be in contention in 2024 are Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania, and Wisconsin, although the Harris-Walz campaign has opened up the map, suggesting its internal numbers show that states like Florida might also be in contention. Candidates and their political action committees focus on those few swing states—touring, giving speeches and rallies, and pouring money into advertising and ground operations. 

But in 2024 there is a new wrinkle. The Constitution’s framers agreed on a census every ten years so that representation in Congress could be reapportioned according to demographic changes. As usual, the 2020 census shifted representation, and so the pathway to 270 electoral votes shifted slightly. Those shifts mean that it is possible the election will come down to one electoral vote. Awarding Trump the one electoral vote Nebraska is expected to deliver to Harris could be enough to keep her from becoming president.

Rather than trying to win a majority of voters, just 49 days before the presidential election, Trump supporters—including Senator Graham—are making a desperate effort to use the Electoral College to keep Harris from reaching the requisite 270 electoral votes to win. It is unusual for a senator from one state to interfere in the election processes in another state, but Graham similarly pressured officials in Georgia to swing the vote there toward Trump in 2020.

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Notes:

https://usafacts.org/articles/what-are-the-current-swing-states-and-how-have-they-changed-over-time/

https://founders.archives.gov/documents/Jefferson/01-31-02-0256

https://founders.archives.gov/documents/Madison/04-03-02-0109

https://fairvote.org/how-the-electoral-college-became-winner-take-all/

https://www.presidency.ucsb.edu/documents/first-annual-message-3

https://www.visitthecapitol.gov/sites/default/files/documents/resources-and-activities/CVC_HS_ActivitySheets_CongApportionment.pdf

https://www.usatoday.com/story/news/2023/01/02/what-state-has-lowest-population-us-states-ranked-population/10476960002/

https://www.axios.com/2024/09/19/lindsey-graham-electoral-vote-change-nebraska

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