- Well, it's Election Day, again. - Well, it's Groundhog Day, again. - And it seems like, every four years, we have the same conversations about the Electoral College because there are a lot of misconceptions about what the Electoral
College is and why it exists, what the problems with
the Electoral College are, and what we can possibly do about them. Contrary to popular belief,
citizens don't actually vote for the president of the
United States directly. And the Electoral College is the electors that form every four years to actually vote for who is
going to be the president and vice-president of the United States. The Electoral College
consists of 538 electors that are divvied up amongst the states And in order to win the presidency, you have to receive an absolute majority of those electoral votes
which, at the present time, requires 270 votes in
the Electoral College. You'll often hear people talk about how you're not actually voting for the president of the United States. You're voting for people
to vote for the president of the United States. And is that actually true? Well, we're going to get
into all of that today. (assertive horns music) The basis for the Electoral College is found in Article II,
Section I of the Constitution. It gives each state, quote, "In such manner as the
legislature thereof may direct "electors equal to its
representation in Congress." And to eliminate the Electoral College, we would need to amend the Constitution. However, the Constitution and the courts give the states significant
leeway to make changes to how their Electoral College
representatives are chosen and who they are required to vote for. So let's examine how all of this works. The framers' main concern
was that people wouldn't know who the national candidates were. They'd be familiar with
their local candidates but wouldn't care about
the national candidates. So there needed to be some
sort of intermediary body to make the decisions about
the national candidates. Each state has its own
process for picking electors. Democrats and Republicans,
at the state level, pick their own slate of electors and this can happen in early
spring or as late as October. When each state certifies
its election results, that's when the winning party's slate of electors is officially chosen. And although I guess you could say it's an honor to be an elector, traditionally, all the electors do is rubber stamp the election results. Electors can be just about anyone. Bill Clinton was an elector
for New York in 2016. The Missouri Republican Party
nominated a guy in the past who has been convicted of
violence at an abortion clinic. Michigan's Republicans
selected William Rauwerdink who engineered a huge
accounting fraud scandal that required him to pay nearly
$300 million in restitution. In California, Nancy Pelosi's
daughter was an elector and so was Dianne
Feinstein's granddaughter. Like I said, it could
be just about anyone. But the presidential election
is held every four years on the Tuesday after the
first Monday in November. In each state, electors meet
after the presidential election on the first Monday after the
second Wednesday in December to cast their votes for the president and vice-president in separate ballots. And traditionally it doesn't
really matter who is picked since the electors are
supposed to pledge their vote to whomever the vote shows. So if New York voters
decided they preferred hometown hero Donald
Trump to Hillary Clinton, Bill Clinton, in 2016, would have had to cast his
electoral vote for Trump, with obvious exceptions. Which takes us to faithless electors. Most states use the popular vote results to decide which party's slate
of electors will be in play. This means that if the
state requires electors to follow the popular vote in the state, and not all states do, then the electors must pledge their vote
to whichever candidate received the most votes in that state. And occasionally an elector
will assert their right to vote for any candidate they want, ignoring their party's candidate. These people are known
as faithless electors and as of now, 33 states
and the District of Columbia have laws punishing electors
who decide to do this. But only 15 of these states actually have an enforcement mechanism
to force those electors to change their vote to
whoever won the popular vote. And before 2016, there were
only 157 faithless electors in American history. But this is becoming a
slightly larger problem as time goes on. In 2016, a few electors in Colorado cast votes instead for Colin Powell who was not on the ballot, even though Colorado voters
selected Hillary Clinton. In Washington State, a few electors voted for Colin Powell and John Kasich. Washington State's voters
selected Hillary Clinton. So what were these
faithless electors doing and what were they hoping to accomplish? Well, the electors who spoke on the record said that they wanted
to encourage Republicans to pick someone other than
Donald Trump as president. This is, of course, problematic given that the election
had already happened and their state had
picked Hillary Clinton, but the Electoral College had
also already been settled, selecting Donald Trump as president. So this seems as good of a time as any to pause and talk about some
of the anti-democratic issues inherent in the Electoral College. Obviously, we've seen several times now where one candidate it has received more votes than the other
candidate on a national level, yet that candidate loses
the presidential election because of the way that the electors in the Electoral College are divvied up. Now, I can already hear many people saying and typing into the comments right now, "Yes, but America is not a
democracy, it is a republic." And that's true as far as it goes but it doesn't really
answer any of the questions. It's sort of like saying that the First Amendment doesn't
protect all types of speech and that is also true, but it sort of raises the
question without answering what speech is protected and
what speech isn't protected. And here, where you're talking
about a democratic republic or a Republican democracy,
it's a bit of a spectrum. And the American system
incorporates aspects of a republic as it does incorporate aspects
of a democracy as well. And it doesn't really answer the question as to which one is better. And in fairness to those people who argue that America is republican not a democracy to say something is pro-democratic isn't necessarily a good thing. Reasons why you want to
incorporate republican principles and generally what people mean when they say something is republican, that's small-R republican, What they're saying is that
there is an intermediary between the people who vote and the people that make the laws. So in this case, generally,
we're talking about Congress or sometimes the state legislatures. But by the same token, you can't argue that small-R republican
values and principles are necessarily good. And in fact, some of the reasons why the United States incorporated some of small-R republican ideals into the system of government are no longer valid or
helpful in this day and age. For example, after the
presidential election in 1800, which was depicted in
the musical "Hamilton", after that resulted in a tie between Thomas Jefferson and Aaron Burr, the 12th Amendment was ratified in 1804, which stipulates that each
elector must talk less, smile more, and cast a distinct vote for president and vice president instead of two votes for president. It also requires a person
to receive a majority of the electoral votes for vice-president for that person to be
elected vice-president by the Electoral College. And arguably that made the country more democratic and less republican, but it fixed some of
the unworkable aspects of the original
constitutional system in 1800. - And that's just the tip
of the political iceberg of how individuals' voting
has shifted in our country. - Well, if it isn't Matt
from "Extra Credits"! What brings you to my side of YouTube? - Well, I overheard you talking
about the Electoral College and how it hasn't changed or adapted much since America's founding. - Wait, this video isn't done yet. How did you hear me? - Nevermind that. You know what has changed though? How we vote, like what
Americans physically did throughout our history
when we went to the polls to choose who each state's
electors would support. For instance, back in colonial times and just after the revolution, you could drunkenly declare your vote in public at a carnival. Ah, the golden age of voting. But by the 1850s, most states
had expanded the electorate to the point that voice
voting wasn't practical. During America's first
election in 1788-89, the popular vote totaled only 43,782. But by the election of 1856, the popular vote was well over 4 million. Voting technology had
to change to keep pace, so we shifted to paper ballots and that's when things got really weird, like how the parties used
to print their own ballots, not the state, which totally
never messed up anything. In fact, we made an entire video about all of this and more over on the Extra Credits channel. And once you've finished up here, we'd love for all of you
to come check it out. - Sounds good to me. We'll see you over there later, Matt. - Awesome. Cool if I just wait here? - Actually, I'm kind of in the
middle of this video, so... - Right, right right, yeah,
totally, no, understood. - Erm... - I, I, I mean, I could just play Phoenix right in the corner until you're done or- - Bailiff, tackle this man! Get him out of my court. - [Matt] He said the
thing, totally worth it. - Yeah, so, things got even
more small-D democratic in 1913, when the 17th Amendment was ratified. The Constitution originally
required state legislatures to choose state senators
rather than voters. A very republican principle,
but not very democratic. However, this became contentious
when state legislatures fought amongst themselves
over who to appoint and Senate seats started
going to the highest bidders. The 17th Amendment gave people the right to vote for their senators directly instead of the state's legislatures. This is called a direct election, where the people choose who's in office, but America is still a republic because they have official senators who actually vote on the laws themselves. But back to our story and
the Electoral College. After 2016, the Supreme
Court ruled in a case called Chiafalo versus Washington. The state may enforce an elector's pledge to support the winning party's nominee and the state voters choice for president. Colorado's faithless electors law mandated that an elector be removed immediately. The Washington State law required that electors be fined $1,000 dollars if they contradicted the
popular vote of that state. The Supreme Court said
that this was acceptable because Article II includes
only the instruction to each state to appoint electors and the 12th Amendment only sets out the electors' voting procedures. The Constitution doesn't
contain any language indicating electors have discretion, so if a state individually says that there can be no faithless
electors in that state then that state won't have
any faithless electors and states can remove
these electors on the spot. But Chiafalo did not
outlaw faithless electors. 33 states and DC require electors to vote for a pledged candidate. But most of these states don't
penalize a faithless selector like Washington or Colorado. In many of these states,
the faithless electors who break his or her pledge
simply get away with it. And the deviant vote is
still counted or cast. This includes some of the states where the 2020 presidential election is expected to be closest. In Florida, Ohio, and Nevada electors are supposed to
vote for the candidate who won the majority of
the state's popular vote or for the candidate of the party that nominated that elector. But if they do their own thing,
then that vote still counts. And then there are major
battleground states like Pennsylvania, which
actually don't require electors to support the winner of
the state's popular vote. Could that elector change their vote? Well, under current Pennsylvania law, yes. But faithless electors actually
don't come up that often and fingers crossed, so far
they've never been decisive in a presidential election. But there is one scenario that hasn't ever been
particularly relevant that may become important
in this particular election. Some refer to it as The Doomsday Scenario, which is that there's
actually room for states to dramatically change
how electors must vote. Any state legislature
could enact legislation that would change how the
governor appoints electors. And a state legislature could require that its electors vote for a candidate who did not receive a majority
of the state's popular vote. Then there's no Constitutional
provision or federal law that requires electors to vote according to the results
of the popular vote in that particular state. So if, for example, a
Republican legislature that's capital-R Republican in this case, in, let's say, Pennsylvania
decided to change the law right before the election to change who the electors
vote for, could they? Well, very possibly. And this loophole is allegedly
already being explored by the Trump campaign, which
is reportedly in discussions with state and national Republicans to quote "bypass election results "and appoint loyal electors
in battleground states "where Republicans hold
the legislative majority." And this isn't just hypothetical. Lawrence Tabas, chair of the
Pennsylvania Republican Party also told The Atlantic
that he has discussed the direct appointment of
electors with the Trump campaign saying quote, "I've mentioned it to them "and I hope that they're
thinking about it, too." But frankly, this seems
like an unlikely scenario. And if any political party were successful in creating such an anti-democratic policy that were able to counter
the will of the people and if that policy were decisive
in a presidential election, there would probably be
riots in the streets. But with the current
Electoral College system and this small-R republican principle, these kind of scenarios are possible and states can pass a law changing the way that electors are chosen because the Supreme Court has ruled that the people have no right to select the electors themselves. So a state could change the law to take back the people's
right to select the electors and use some other policy
rather than the popular vote of that particular state. So let's talk about how
these electoral votes in the Electoral College are apportioned. Each state's electoral votes are equal to the number of
representatives and senators the state has in Congress. House seats apportionments
are based on population and are reapportioned every
decade after the census, which is why the census is so important. Every state is guaranteed at
least one seat in the House and then that number goes
up based on the population, and of course, as you
remember from Civics class, every state has two and only
two seats in the Senate. So the Constitution specifies how many electors every state gets. Pretty simple math, the number of senators plus the number of Congress people. But the Constitution is silent on just about everything else. The Constitution leaves
it up to the states, how they're going to apportion those electors in the Electoral College, and on what basis states
can make the decision as to whether to grant all of
the electors for that state, or just a portion of them. It's probably not surprising
that, by the election of 1800, the states had decided how
they were going to apportion the electors in the Electoral College and had more or less all shifted to a winner-take-all system, also known as a First
Past the Post system, because that's how most
US elections occurred. I'll note parenthetically
that most modern democracies use a proportional representation system in their legislature, but that's a can of worms for
an entirely different video. Now, most states have a
winner-take-all system that awards the votes
of a state's electors to the presidential candidate who obtains the most votes in that state. Maine and Nebraska, however, have enacted the
congressional district method which allocates one electoral vote to the winner of the popular vote in each state-drawn district. In winner-take-all states, which are the vast majority
of American states, all of the electoral votes
available to that state go to the winner of the popular vote in that particular state. So if a candidate wins a
simple majority in the state then 100% of the electoral
votes in that state go to that candidate,
regardless of whether they win with one vote or with 1 million votes. And that's how it works in 48 states and the District of Columbia. This is a system that America
inherited from the British that's often referred to as
the First Past the Post system. But it's important to note that not all of the
framers of the Constitution actually agreed with the
winner-take-all system that the states adopted
in the Electoral College. And in fact, by 1823, James Madison, the father of the Constitution, railed against winner-take-all system. He actually argued for more
granular district-based system if not a national popular vote in general. And in fact, he proposed an
amendment to the Constitution to do away with the construction
of the Electoral College, as it more or less exists today. But it's received a lot of criticism because there can often be a lot of people in the minority of that state whose votes are effectively uncounted. There are a lot of
Republicans in California, but effectively they have
no effect on the election because there will be
a majority of Democrats voting in California and all
of California's electoral votes will go to Democrats. There are a lot of Democrats in Texas, but effectively, those
votes aren't counted either because if the majority vote
for Republican in Texas, then all of Texas's electoral votes will go to the Republican candidate. And coupled with the fact
that smaller states receive more electoral votes in
comparison to their population, this is how you can get the scenario where a candidate receives
less of the popular vote but wins in the Electoral College. A lot of people refer to
this as gerrymandering, but that's not quite right. Gerrymandering refers to
specifically and intentionally creating weird districts
to create a certain outcome in apportioning the population, whereas this is just
an issue that comes up with the way that the states exist, and there's no way to change the outline and the borders of the states themselves. And this is just a by-product of the fact that it's a winner take all system in almost all of the states. Interestingly, the argument that the Electoral College
benefits the small states and that's the reason it was
adopted in the first place is largely apocryphal. In reality, it has more to do do with the southern slave-holding
states wanting to retain power related to the Three-fifths Compromise. But since the adoption of
the winner-take-all system, small states have for the
most part been ignored unless they were battleground states, which we'll get to in just a bit. But this raises the question as to why more states don't do what Maine and Nebraska do. Well, it's partially a prisoner's dilemma and it's kind of about power. When the swing state
awards the maximum number of Electoral College votes
to the statewide winner, it ensures extra attention
from presidential candidates. That's why Florida and Pennsylvania see a lot of action from the candidates. The stakes are too high to ignore, the fact that Florida could go either way and that's a lot of electoral votes that could swing an election. For spectator states, the
winner-take-all systems offer maximum power to
the candidate favored by the clear majority of
the state's population. And this also gives the state
more cachet than it would if it were splitting its votes. And parenthetically,
that's one of the reasons why you always hear
presidential candidates have a stance on things like ethanol. - Pure American ethanol. - Because corn, which is the
product that leads to ethanol, is really big in Iowa, where
there is an early caucus and there is a lot of attention paid to campaigning in Iowa and winning the votes of Iowans, even though it's a very
low population state. But let's talk about
this over-representation of less populous states. America has always tried
to thread the needle, between trying to give
every citizen an equal vote, the idea of one person, one vote, while also trying to create a
system of checks and balances that doesn't let more populous states completely dominate
all of the other states or, originally, the colonies. And one of the features,
or one of the bugs, of the Electoral College,
depending on who you ask, is that it's supposed to guarantee that the populous states
can't dominate in an election, but that also creates a
disparity in representation because we have to go back to remembering that the way that the
Electoral College is set up is that every state gets
at least three votes. One based on a representative, because the minimum
number of representatives in the House is one, and
every state gets two senators, and that's the same regardless of the population of the state. But when you take the
population of the state and then divide it the number of electors, what you get is a wildly different number. So while California has one electoral vote per 712,000 people, Wyoming, the state with the
fewest people in the country has one electoral vote per 195,000 people. And that's because each state must have at least three electoral votes. So Wyoming has three electoral votes and only 532,000 citizens. California is the most
misrepresented state in the Electoral College. California is home to
12% of all Americans, but has just 10% of the electoral votes. And while that might not seem like much, when you spread that effect out throughout the entire country, you can get wildly disparate results. And although California
has gained electoral votes as its population has increased and it's been allocated
more representatives, this hasn't been enough
to address this disparity. Because population growth tends to outpace Electoral College representation, which changes once every 10 years when the census rolls around. Even after the census, a state doesn't earn new electoral votes until it's gained approximately
700,000 new residents. The result is that a
state or metropolitan area can add hundreds of thousands of new votes without gaining any greater Electoral College representation. And this is exactly what's happening in both Texas and California. They can add 640,000 new residents, which is actually more than the
entire population of Wyoming and still not gain a single
additional electoral vote. In fact, 640,000 is more than
the total voting population of six of the smaller,
less populous states. As a result the Electoral College tends to penalize population centers. And in a weird quirk of fate, population centers tend to be pretty blue while rural communities
they tend to be pretty red. But there's no reason why
that's necessarily the case. Of course, it would be
foolish not to acknowledge the partisan implications
of the Electoral College. This issue has turned partisan because the same party has
benefited twice, the Republicans, and the same party has
been disadvantaged twice. Hillary Clinton won the popular vote by almost 3 million votes and Al Gore won the popular vote by almost half a million votes. Now, if demographic changes continue in the direction that they're going, Texas will eventually turn blue. And if that happens,
Republicans would effectively have no path to ever win the presidency, ironically, due to the Electoral College. So for those supporters
of the Electoral College ask yourself if you would still support it if it precluded Republicans
from ever getting the presidency or at a bare minimum, allowing
Texas to decide the fate of effectively every presidential election for the foreseeable future. And this leads to what
people often refer to as spectator states. Although some people claim
that the Electoral College protects rural voters or rural states, this is only partially true. Presidential campaigns still
don't tend to make stops in Wyoming, North or
South Dakota, or Montana. So generally speaking,
the Electoral College tends to create a disparity in campaigning between spectator states and swing states. In 2016, for example, most
of the presidential campaigns took place in just four states: Ohio, Florida, Pennsylvania,
and North Carolina, while two thirds of the campaign events took place in just six states. The election was decided by the votes of around 80,000 people in three states. And the two most populated states, California and Texas,
are spectator states, as are 12 of the 13 least populous states. These states are ignored because the outcomes
are already determined since the vast majority
of voters in those states prefer one political party. The swing states are swing states because they have the most even split between Republicans and Democratic voters. And this leads to some weird outcomes because 48 states and Washington, DC, award their votes on a
winner-take-all basis, which means that it's possible for a
candidate to win the presidency with around 23% of the
national popular vote. And that may not happen in 2020, but the fact that it can
happen is always alarming. And of course in 2016, Hillary Clinton got over 2 million more
votes than Donald Trump but lost the Electoral College 306 to 232. In raw votes, it was the
largest popular vote lead in history for a candidate
who lost the election. If Donald Trump wins in 2020, it could be the first
time in American history that a president was elected twice without winning the majority
of the vote in either case. So let's talk about some of the proposals that people have suggested
to fix some of the flaws of the Electoral College. In the current Electoral College system, the presidency is awarded to the candidate who wins at least 270 of the
538 available electoral votes. The Constitution gives state legislatures the right to choose how
presidential electors are chosen. Since the 19th century, each state, with the exceptions of Maine
and Nebraska of course, have awarded the electoral vote to the winner of the
popular vote in that state. But some people have
proposed what's called the National Popular Vote Compact and under a national popular vote system, states would commit to
award their electoral votes to the winner of the national popular vote instead of the state popular vote. The National Popular Vote
Compact has been passed by 15 states and the District of Columbia. And since there isn't a
constitutional requirement as to how these votes are allocated, so long as these states
agree to this system, then it's constitutional, it doesn't require an additional
constitutional amendment. Of course, a lot of
people would be worried if a individual state decided to allocate its votes based
on the national popular vote without other states going along with it, or if a state decided
to award its electors in proportion to the proportion of the national popular vote, which is one of the genius aspects of the National Popular Vote Compact which is that it would only go into effect when states controlling at
least 270 electoral votes have joined. In the election after
that threshold is reached, the national popular
vote states would ensure that the winner of the
national popular vote became president. While the Compact would not
abolish the Electoral College, it would guarantee that the winner of the Electoral College vote and the popular vote are the same. Now, there are certainly some advantages to having an Electoral College but all of this plotting
underlies the main problem with the Electoral College, which is that there are a lot of steps that lead to litigation and mess rather than a clear winner, and winners that can lose
the national popular vote. The Electoral College
creates the possibility of a 269-269 tie vote, the possibility of a 23% vote
getter becoming president and the possibility of the majority being ruled by a minority. But I will leave it to you. Do you agree with my analysis? Do you think that the Electoral
College is a good thing? Should it be abolished,
changed, or just left alone? Leave your objections in the comments and check out Extra Credits' video on the history of voting in this country. It's really great where I have a cameo, and check out this playlist over here with all of my other real law reviews where I talk about the important
legal issues of the day, including lots of stuff
about this election. So, click on this playlist
and I'll see you in court.
Love all of these cameos, who should LE work with next?