The Electoral College and Legislatures
The Electoral College is all about choosing the president. But who decides its makeup? State legislators. That’s because it is lawmakers who have the right to establish how electors are selected.
We know this because the U.S. Constitution (Art. 2, Sec. 1) tells us so:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…”
Legislatures have discretion as to “such Manner,” and at this point, all but two states, Maine and Nebraska, use a winner-take-all approach to choose electors.
Electoral Votes Allocated to Each State
From time to time, proposals to change or repeal the Electoral College have surfaced, often with proposals to amend the Constitution. In fact, the 12th Amendment did alter how the Electoral College works—but not on how electors are selected.
Now, interest in other options is percolating.
Perhaps that’s not a surprise. Given that twice in the last five presidential elections the runner-up in nationwide votes emerged victorious in the Electoral College, the process has become a regular topic of legislative interest.
Focusing just on what the states can tackle—selecting and controlling electors—we’ll look at several policy options:
- Do nothing—the Electoral College is working fine as is.
- Join the National Popular Vote Interstate Compact.
- Adopt the congressional district method of selecting electors.
- Use runoffs or ranked choice voting to ensure that electors go forward with a majority—not a plurality.
- Deal with faithless electors.
The Electoral College Is Working Fine as Is
“The Electoral College actually works better than the Founding Fathers thought,” Trent England, of Save Our States and author of “The Danger of the Attacks on the Electoral College,” told an NCSL audience in December. The choice to use an Electoral College instead of a popular election was partly practical; there was no way to run a national election. It was also a decision that prevented large states from dominating, or to let a few highly concentrated areas—think the centuries-old urban/rural divide—to predominate. For England, those are both still applicable concerns.
He pointed out that the U.S. is not an outlier: “India’s system is more complicated. Germany and every parliamentary country all use a two-step, district-based system to elect their heads of government.”
On a practical side, since elections are run by states and laws pertaining to elections vary from state to state, any electoral disputes are contained within a given state. England said if you throw all ballots in the same ballot box, figuratively speaking, you need a centralized election administration. Which we do not have.
It seems likely that the “do nothing” option has a great deal of support among legislators, but it’s hard to tell. If you like the current system, you don’t need a bill to say so. England does suggest that if any changes are adopted that in some way would nationalize the presidential election, 10 years—or possibly many more years—would be needed for states to harmonize their election laws.
National Popular Vote Interstate Compact
For those who disagree with England, and think the Electoral College is not serving America well, the National Popular Vote Interstate Compact (NPVIC) is an alternative. Begun in 2006, NPV is designed to ensure that presidents are elected with more votes nationwide than any of the competition while avoiding the need to amend the U.S. Constitution. (NPVIC doesn’t require the president to gain a majority of the votes. In years where a strong third-party candidate plays a significant role, the NPVIC winner could easily be elected with less than 50% of the total vote.)
Member-states of the NPVIC pledge to select electors who support the winner of the national popular vote, whether or not that candidate wins the popular vote in the state itself. The compact doesn’t go into effect until enough states join to ensure the new president would be the winner of the NPVIC, so for the time being, the plan is on the shelf.
“If you live in 38 states, you are effectively taken for granted,” said Progressive/Democrat Senator Chris Pearson (Vt.) at the 2019 NCSL Capitol Forum, because your state isn’t competitive. “Why should we let five to 10 states decide the presidential election?”
He believes that using the NPVIC would give presidential candidates incentive to campaign in all the states—small and large, competitive and otherwise. From a small state himself, he says, “we can’t have less than zero influence.”
The NPVIC has seen a surge in acceptance since 2016. While the compact was developed, and is championed, by members of both parties, recent adoptions have all been in states where the legislature is under Democratic control. It makes sense: It has been Democrats who felt the sting in 2000 and 2016. Now 15 states plus Washington, D.C., representing 196 electoral votes, are members.
Just because a state joins the NPVIC, doesn’t mean it has to stay in it forever: Statutes can be repealed. In 2019, for instance, eight bills in three states that are members of the NPVIC had bills to repeal their membership. In Colorado, which joined the NPVIC in 2019, voters will see a referendum on their 2020 ballots to determine whether the state stays in the compact. If the compact gets close to implementation, it will be interesting to see if some members back out.
Congressional District Plan
Maine and Nebraska already select electors differently than the rest of the nation. The congressional district method, which gives two electors to the state’s statewide presidential winner and one to the winner in each congressional district, was adopted in Maine in 1972 and Nebraska in 1992. This system doesn’t address the national vote but does allow a state to divide its support among presidential candidates. A single congressional district elector has gone a separate way than the others in Nebraska in 2008 and in Maine in 2016.
Legislation to adopt the congressional district method is far less common than NPVIC legislation and has declined in recent years. In 2018, though, NJ A913 was introduced to remove New Jersey from the compact and instead use the congressional district method.
Use Runoffs or Ranked-Choice Voting for Presidential Elections
The latest idea is to ensure that electors are selected only for a presidential candidate who garners a majority of votes in a state—not just a plurality— by using ranked-choice voting (RCV) or runoffs.
According to Edward B. Foley’s new book, “Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College,” the Electoral College will always give the winner of the national popular vote the presidency when only two parties are competing—but that’s rarely the case. Ross Perot’s candidacy in 1992, when he gained 19% of the vote, meant that Bill Clinton was elected with just 43.3%. More recent minor party candidates (think, Ralph Nader in 2000, and Jill Stein and Gary Johnson in 2016), all could be said to have played a similar, but smaller, role.
No one disputes the right for independent or minor party candidates to run. It’s worth noting, though, that “(a)ny time a third-party candidate is in the race, there is a chance that he or she can siphon more votes from one candidate than the other,” wrote Foley in an opinion piece for CNN. “This depends on the ideological relationship among the three candidates and if this siphoning effect is large enough it can cause the candidate who may have won in a two-person race, to lose the election.”
How to avoid that? Foley recommends using a runoff between the two highest vote-getters, a system used for state primaries in 10 states, or RCV, which has the effect of a runoff without having to hold a separate election. In both cases, all candidates are welcome to participate, but in the end the candidate who can sway more than half the voters wins.
Maine will be the first state to use RCV for the presidential race in November’s election.
One last legislative question remains, and that is whether electors must cast their electoral votes for the candidate who won their state’s popular vote, and for whom they pledged their vote to. That’s the norm (potential electors are selected by the political parties and can be expected to be trustworthy) and in 29 states plus D.C., “faithless electors” laws compel trustworthiness.
In 2019, though, two court cases reached radically different decisions. In Washington, four rogue electors chose not to cast their electoral votes for Hillary Clinton, who won in the Evergreen State in 2016, and in Colorado two electors did the same. In both states, the faithless elector laws were applied, but with different results. In Washington, the law was upheld by the state Supreme Court, and the electors were asked to pay fines. In Colorado, the electors were not held accountable, based on a ruling of the U.S. 10th Circuit Court of Appeals. On Jan. 10, the U.S. Supreme Court will consider whether to take up the two cases.
To learn more, see NCSL’s webpages on the Electoral College and the National Popular Vote Interstate Compact. Additionally, see the National Archives’ Electoral College webpage for all the “how it works” details and results from previous elections. And, the National Association of Secretaries of State did a roundup of state laws governing the selection of electors in 2016; very little has changed since then.
From the Chair
This month, we spoke with Wisconsin Senator Kathy Bernier (R). Bernier represents the state’s 23rd Senate district, a mostly rural district in west-central Wisconsin that also includes part of the city of Eau Claire. She has held this office since 2018 and previously served in the Wisconsin Assembly from 2010 to 2016.
How did you get selected to chair the elections committee, both in the Wisconsin Assembly and now Senate?
I came into the legislature with a strong history in elections; I had been a poll worker, the chief elections inspector in a small town, and then ran and served as Chippewa County Clerk for 12 years. Because of my expertise, I was a good fit for the elections committee when I joined the assembly.
When I moved to the Senate, I asked the previous chair if he wanted to keep the job. He didn’t, so it became my No. 1 committee request—you try to do what you know best.
Have there been any interesting differences in leading the two committees?
My colleagues in the Senate are far more skeptical and don’t take issues at face value quite as much as those in the assembly.
Because the assembly is so large (there are 63 people in the Republican caucus, for example), not every legislator can hone in on every topic. In general, if a bill makes its way through leadership and onto the floor, your assembly colleagues will trust your research and knowledge.
In the Senate, legislators are more hands-on—they want to know for themselves what’s what. The Senate is the more deliberative chamber, and we don’t go through legislation as rapidly as the assembly; that means there is a little less blind faith in your colleagues.
The Canvass last interviewed you for our February 2013 issue—how have election issues changed or remained the same in Wisconsin between then and now?
In Wisconsin, our election system is very decentralized. County clerks manage some of the election-related activity, but on Election Day that responsibility really falls to municipalities where municipal clerks run the voting process.
Every session, we run many election-related bills—I’m leading three different omnibus bills right now. The local government clerks say “stop changing things”—usually we’re making simple, commonsense changes, but for all the municipal clerks to keep abreast of those changes is a challenge. So, between 2013 and now, what’s stayed the same is that we’re consistently updating our laws and communicating that to local government officials, which continues to be a challenge.
As for something new, cybersecurity is much more on our radar now. The 2016 election has proven that there are some vulnerabilities in election systems. Wisconsin’s system is difficult to infiltrate because we’re decentralized, but hackers could still try to mess with our voter registration list. We have to be prepared for anything, whether at the polling place or on electronic devices.
In addition to cybersecurity, what are the other major election administration priorities for you and Wisconsin?
Election Day registration; we’ve added an additional option for voters to provide proof of residency with their W-2 form. Also, voter roll maintenance.
Speaking of voter registration lists, Wisconsin joined the Electronic Registration Information Center (ERIC) a few years ago—do you have any thoughts on how that is working out or on the recent voter roll maintenance?
I had to do a lot of talking to convince my fellow Republicans to support ERIC, but since we’ve joined it has worked very well for us. Reports run on those who have moved are 93%-plus accurate using the ERIC system, and that’s as accurate as we’ll likely ever get.
For example, my grandson lived with me before entering the Marines. I took him to the polls for his first time to vote when he was 18, but after he moved out, the ERIC program picked up that he had moved. He received a notice at my house, and I drew it to his attention. In this case, ERIC worked because it correctly identified his move, though because my grandson was in the military, he did have the option to stay on the local voter roll, which he could pursue by contacting the local clerk. So, we do expect a certain level of voter responsibility for ensuring their registrations are up-to-date.
I can see where there might be concerns about someone getting deactivated, especially if it’s done in error. Fortunately, we have Election Day registration, and most people have the necessary information in their pockets to re-register if they show up and find out they’ve been deactivated.
Wisconsin is known for its GIS capability with regards to elections and ensuring that every voter receives the right ballot and is placed in the right precinct. Are there any new developments in this area?
I have fond memories of Wisconsin’s early use of GIS. When I was county clerk, Wisconsin required a statewide voter registration system, but only municipalities over 5,000 had access to them. In my county, we had to enter all of our data into a GIS system.
Our success with GIS didn’t occur overnight or without growing pains, though. We knew that we wanted to be able to look up a voter and know exactly what ballot they should get and who their representatives are. Years ago, all counties were required to have GIS land records systems, and that helped our transition into using GIS for elections.
What are you most proud of elections-wise in Wisconsin?
I’m proud that we have confidence in our voter rolls and that they are as accurate as can possibly be. I’m also proud that our electors can have confidence that the information on the rolls is accurate. And if a correction needs to be made, voters know it can be made either prior to Election Day or even at a polling place on Election Day.
Anything else you think your peers in other states might find interesting?
What some of my Democratic colleagues may think of as unnecessary hoops are important safeguards for our elections. At a certain point, if voting is too easy or accessible, it becomes insecure. Having safeguards doesn’t mean that you don’t want people to vote; it means you want people to have a high degree of confidence in the accuracy of the system and the results.
We have to make sure the door is not open for fraud or abuse, and that means having all of our safeguards up front.
One Big Number
Three hundred sixty-six.
That’s the number of election-related bills enacted in 2019. The number shows a steady increase in legislation related to election administration. In 2018, there were 336 enactments, and 2017 had 268. We’re busy analyzing the trends, so look for our review of 2019’s election administration legislation in the February issue of the Canvass!
Florida Joins ERIC
Florida became the 13th state to join the Electronic Registration Information Center (ERIC), a multistate effort to ensure voter registration accuracy. Through ERIC, participating states can compare voter registration data through a confidential process with data from other states, death records, postal records and other resources. The states are then able to use that information to identify and contact voters who have moved, died or changed their name.
Through ERIC, participating states can share information from voter registration systems, social security death records and resources. This can help states identify voters who have moved, died or changed their name.
Mystery Box May Shift Texas Election
When election recounts fail to line up, we often blame technology. But don’t forget that low-tech mishaps cause problems, too. In Midland, Texas, a misplaced ballot box may shift an already contentious vote over a $569 million bond for the Midland Independent School District. Different counts show the bond failing or passing, often by fewer than 30 votes. But when one recount showed about 800 fewer votes than the original tally, administrators realized that a box containing early votes, which were machine-counted for the first tally, had been accidentally set aside without a proper label.
Big Change to Ballot Access for Michigan’s Independent Candidates
A federal judge overturned Michigan’s law determining how independent candidates appear on the ballot, deeming the requirements “severely burdensome.” This decision lowers the signature threshold necessary to appear on the ballot in 2020; now independent candidates for statewide office can qualify for the ballot with 12,000 signatures instead of 30,000. No statewide independent candidate has ever been able to meet the current requirements, which have been in effect since 1988.
Voting Rights for People on Probation or Parole
New Jersey Governor Phil Murphy (D) signed a bill restoring voting rights to individuals who had been barred from voting due to being on probation or parole. The law will go into effect in March 2020 and is poised to affect more than 80,000 people. New Jersey is the 19th state to return voting rights to people on probation or parole and follows quickly on the heels of Kentucky restoring the right to vote and hold public office to residents who have served felon sentences for nonviolent crimes.
No Ballots for Uncontested Races?
Some Utah election officials are considering foregoing ballots for uncontested municipal races. Right now, the state’s law allows for municipal elections to be canceled if all the ballot’s races are uncontested. Proponents want to amend the law to allow individual uncontested races to be selectively skipped, likely saving costs and reducing election officials’ workload.
Election Administration Books
Two new books about election administration might make your reading list. The first, Rick Hasen’s “Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy,” looks at voters’ mistrust of American elections. The second (forthcoming in 2020) is Edward Foley’s “Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College,” which offers a solution to some of the current debates surrounding the Electoral College.
Dixville, N.H., May Have to Give up its First-in-Nation Voting Status
Dixville creates headlines every four years by providing midnight voting for its residents. The tradition is threatened for 2020 because one of the five residents has moved away, and that leaves too few people to administer the election, according to the secretary of state. (Hat tip to Justin Levitt, via Election Law Blog.)
Unexpected Party Changes for California Voters
In California, about 600 people have had their voter registration unexpectedly change, often going from Democrat or Republican to no party preference. Election officials suspect the complaints are linked to the state’s recently launched automatic voter registration system, which automatically registers eligible voters when they stop by the DMV, though not all complaints can be linked to the program.
North Carolina and Voter ID, Redux
A federal court struck down North Carolina’s latest voter ID law, the law resulting from a 2018 amendment to the state constitution and 2019 enabling legislation from the General Assembly. The attorney general will appeal. The upshot for voters: for the March 3 primary, the photo voter ID requirement will not be enforced. For the Nov. 3 general election, it will depend on the outcome of the appeal.
Philly to Get New Sticky “I Voted” Stickers
What good is an “I Voted” sticker if it doesn’t actually stick? Philadelphia election officials hear the complaints every year, and now they are taking action to improve the city’s Election Day swag. The election commissioners plan to announce a sticker design competition in partnership with the local school district. Their goal: Give voters a Philly-centric sticker design and make sure the stickers stick.
Monthly Dose of Cybersecurity
Washington, D.C.—The federal government’s new spending deal includes $425 million for state improvements in election security. This deal, which represents a compromise between the two chambers of Congress, will require states to match 20% of the federal funds—putting the total dedicated to election security at $510 million. The same deal also includes about $15 million for the Election Assistance Commission, a notable increase for the agency.
New York—The Global Cyber Alliance (GCA) launched the Craig Newmark Trustworthy Internet and Democracy Program, which will provide free toolkits and online forums to election officials, community organizers, news outlets and more to help protect them from cyberthreats. The toolkits will be provided in multiple languages in addition to English, such as Arabic, Spanish and Chinese.
Washington, D.C.—A widely used voting machine has drawn scrutiny after researchers found it contains parts—such as processors, software and touch screens—made by companies with ties to Russia and China. The paywall-protected Wall Street Journal report was conducted independently by Interos, though voting-machine vendors critiqued the research for failing to acknowledge current safeguards, including federal, state and local testing. Here’s an accessible link to a Homeland Security Wire story.
From the NCSL Elections Team
December was an exciting month for NCSL’s elections team. First, we wrapped up a fantastic NCSL Capitol Forum, and you can read about our sessions on the Electoral College, geo-enabled elections and more on the NCSL Blog. Then, we returned from Phoenix to welcome our newest team member: research analyst and attorney Brian Hinkle.
As always, we love hearing from you.
Wendy Underhill and Mandy Zoch