Do we still need the Electoral College?


Does the Supreme Court’s recent prohibition on ‘faithless electors’ mean the Electoral College is now unnecessary?

In a word, no. the Supreme Court’s decision does not alter the Constitution, and the Electoral College will remain an essential part of the 2020 Presidential election. BUT, the decision does highlight how the provisions of Article II pertaining to the Electoral College are no longer applicable in the way the framers intended.

By way of background, the Electoral College is specifically described in Section 1 of Article II. State legislatures are required to pick individuals who are not otherwise involved in the federal government to serve as Electors. These individuals serve in a number equal to the state’s House delegation, plus the two senators. In 48 of the 50 states, the popular vote winner in a given state wins ALL of the Electoral College votes for that entire state. Maine and Nebraska use a proportional method to allocate Electoral votes.

There are two implications of this strange system. The first concerns greater proportional representation of smaller and/or more sparsely populated states. This was very much by design and remains undisturbed by the Court’s recent decision.

The other notable implication of the Electoral College is the presence of actual human beings being elected to vote for President on behalf of the voters in a state. Can’t state election officials just figure out the number of Electoral College votes for each candidate from that state? Why do the voters vote for “Electors?”

For a clue about the answer, look to the Constitution’s explicit requirement that the Electors not be part of the Federal government. That separation shows the framers’ intent to maintain the Electors’ independence. But it does not explain the need to have a slate of anonymous individuals carry information about the will of the voters to the Federal government. The only reason such a group of people would be necessary is if the people could not necessarily be trusted to voice their own choices directly. Electors, according to the plain language of the Constitution, have the ability to act as a break or calming influence on the passions of the crowd by virtue of being a buffer between the electorate and the actual vote for President (and Vice President).

This brings us to the Court’s decision this week in Chiafalo v. Washington. The question was whether a state could enforce the Elector’s pledge that had been taken in connection with being put on the party’s slate. More simply stated, could a “faithless Elector” go against their previously articulated position? In a unanimous decision, the Court said that states could prohibit the Elector from exercising free will in the selection of President and Vice President.

In so holding, the Court has basically dismantled the idea that individuals cannot communicate their voice directly. In other words, if the intermediary is just sending the information, without any ability change the outcome, then intermediary (in this case the Elector) is unnecessary.

Of course, this sidesteps the first issue, which is disproportionately large representation in less populated states. That controversy implicates the highly divisive question of whether the President should be chosen by a popular vote. Even without touching that red hot topic, the Court has still taken us one step closer to removing an archaic and unnecessary impediment that stands between the people and their vote for President.


About Mike Pomerantz 29 Articles
Mike Pomerantz is, in no particular order, a political news junkie, an attorney, a writer, a musician, a progressive, a parent, and a husband. He spent over twenty years practicing law in and around the City of Philadelphia as a civil litigator and trial attorney. In 2018 he began to consult on tech projects in cryptocurrency and artificial intelligence.

Be the first to comment

Leave a Reply

Your email address will not be published.