WASHINGTON – Besides the Republican Party, the one sure winner on Nov. 2
was the Electoral College. Since 2000, when Democrat Al Gore won the
popular vote but not the presidency, the Electoral College has gotten more
scrutiny than at any time since the founding of the nation.

The shocker is this: No American voter has ever voted “for” a president in
a popular election. In presidential elections, Americans vote for a number
of electors in their state that are pledged to one of the presidential
candidates. The electors then cast their vote, in the Electoral College,
for the candidate they are pledged to, and these electoral votes determine
the president.

State electoral votes are assigned on the basis of representation in
Congress: One vote apiece for both senators, one vote apiece for each
representative in the House of Representatives. The number of House
representatives is determined by the state’s population, but every state
must have at least one. Accordingly, no state can have fewer than three
electoral votes. By this standard, the District of Columbia also has three
electors.

Total electors then are 538: 435 from the House, 100 from the Senate, and
three from the District of Columbia. To win a presidential election, a
candidate must have a simple majority of 270 electoral votes. If the
candidates tie at 269 electoral votes apiece, the House of Representatives
must break the tie by casting a single vote for every state delegation.

According to the Constitution, states “shall appoint” electors. The states
are solely responsible for appointing them, and all of them mandate that
electors vote according to the popular vote in the state. States could
mandate them to vote some other way, but it’s doubtful the electorate
within the state would stand for that. All but two states, Maine and
Nebraska, assign all winning electoral votes to the winner of the state’s
popular vote for the presidency. Maine and Nebraska assign electoral votes
proportionally, according to the winner in specific congressional
districts. Only in Nebraska and Maine can a candidate lose the state’s
overall popular vote and still receive an electoral vote, from those
districts where s/he may have won the popular vote there.

After 2000, electoral proportionality got a serious hearing in some
quarters, but Colorado was the only state to propose it to voters in 2004;
and the proposition failed.

A candidate can win the national popular vote and still lose the decisive
Electoral College vote, as Al Gore did in 2000, by winning the popular vote
in more-populous states by a large margin, and narrowly winning or losing
many less-populous states. The populous states provide a large margin in
popular votes. Less-populous states cannot offset the popular votes, but a
number of them can make up for the electoral votes of larger states.

This is all only somewhat as the founders wanted it. Above all, they did
not want direct popular elections. They didn’t trust people or leaders
enough for that. Either the people would be fooled into electing lawless
schemers, or popularly elected leaders would be tempted to consider
themselves “the will of the people” – that is, above the law, as Duke
University law professor Walter Dellinger recently pointed out. Both
scenarios have played out repeatedly in other countries since 1787,
incidentally.

But electors are not the final, free bulwarks against malfunctioning
Democracy the founders envisioned. They vote as pledged to by the parties.
“Faithless electors” are theoretically possible, however, if a party went
too far astray in its choice of president.

While it may be deflating for some to learn they don’t vote directly for a
president, the Electoral College was the price of Democratic elections. In
1787, small states were not going to join the union or ratify the
Constitution if their residents were to be hopelessly outvoted, in direct
popular elections for national office, by the residents of more populous
states. The Electoral College was the early compromise (the Bill of Rights
was the later one) that made the Constitution viable by giving small states
more voting power than their populations alone could justify.

In America, the concept of “one person, one vote” is accurate for all
popular elections except presidential elections. In presidential elections,
one vote counts for more than one vote in less-populous states, as compared
with votes in more-populous states; or it counts for less than one vote in
more-populous states, as compared with votes in less-populous states. That
is because the vote is not for the presidential candidate, but for electors
who represent more or less voting power per person, depending on the
population of the state.