State Laws: Electoral College Override?

The Electoral College is an institution that elects the President of the United States every four years. The College is comprised of 538 electors who cast their votes, with a presidential candidate requiring a simple majority of 270 votes to win the election. The current system has been criticised for its winner-take-all laws, which award all of a state's electoral votes to the candidate who receives the most popular votes in that state. This has resulted in several presidents being elected without winning the most popular votes nationwide. While the Electoral College is constitutionally mandated, the Constitution and the courts have allowed states some leeway to make changes to how their Electoral College representatives are chosen. This has resulted in a growing movement to adopt the National Popular Vote Interstate Compact, which would commit electors to vote for candidates who win the nationwide popular vote.

The National Popular Vote law

The shortcomings of the current system stem from “winner-take-all” laws that award all of a state’s electoral votes to the candidate receiving the most popular votes in each separate state. Because of these state winner-take-all laws, five of the 46 Presidents have come into office without winning the most popular votes nationwide. In 2004, if 59,393 voters in Ohio had changed their minds, President Bush would have lost, despite leading nationally by over 3 million votes. Under the current system, a small number of votes in a small number of states regularly decides the Presidency. All-or-nothing payoffs fuel doubt, controversy over real or imagined irregularities, hair-splitting post-election litigation, and unrest.

The National Popular Vote Interstate Compact does not eliminate the Electoral College or affect faithless elector laws; it merely changes how electors are pledged by the participating states. Under the current system, campaign focus – as measured by spending, visits, and attention to regional or state issues – is largely limited to the few swing states whose electoral outcomes are competitive, with politically "solid" states mostly ignored by the campaigns. Supporters of the compact contend that a national popular vote would encourage candidates to campaign with equal effort for votes in competitive and non-competitive states alike.

The National Popular Vote Interstate Compact

The NPVIC was introduced in 2006 after the 2000 US presidential election, in which Al Gore won the popular vote but lost the Electoral College vote to George W. Bush. This "electoral misfire" sparked new studies and proposals from scholars and activists on electoral college reform. Law professors Robert W. Bennett, Akhil Amar, and Vikram Amar suggested that states could pressure Congress to pass a constitutional amendment by acting together to pledge their electoral votes to the winner of the national popular vote. Building on their work, computer scientist and former elector John Koza created the NPVIC, a formal interstate compact that linked and unified individual states' pledges to commit their electoral votes.

As of March 2025, 17 states and the District of Columbia have adopted legislation to join the NPVIC, representing 209 electoral votes, or 77% of the 270 votes needed for the agreement to go into effect. These include 6 small jurisdictions (District of Columbia, Delaware, Hawaii, Maine, Rhode Island, and Vermont), 9 medium-sized states (Colorado, Connecticut, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, and Washington), and 3 big states (California, Illinois, and New York). The NPVIC has also passed at least one legislative chamber in 7 states with 74 electoral votes (Arkansas, Arizona, Michigan, North Carolina, Nevada, Oklahoma, and Virginia).

The NPVIC does not eliminate the Electoral College or affect faithless elector laws; it merely changes how electors are pledged by the participating states. Under the current system, campaigns tend to focus on a limited set of swing states, as small changes in the popular vote in those states produce large changes in the electoral college vote. Supporters of the NPVIC argue that a national popular vote would encourage candidates to campaign with equal effort in all states, regardless of whether they are politically "solid" or competitive.

The shortcomings of the current system

The "winner-take-all" laws have resulted in five out of 46 Presidents being elected into office without winning the most popular votes nationwide. For example, in the 2000 election, Al Gore won 543,895 more votes nationally than George W. Bush. In 2004, if 59,393 voters in Ohio had changed their minds, President Bush would have lost, despite leading nationally by over 3 million votes. Similarly, in 2020, if 21,461 voters had changed their minds, Joe Biden would have been defeated, despite leading by over 7 million votes nationally. This has happened in the elections of 1824, 1876, 1888, 2000, and 2016. The 1960 election is also a disputed example.

The "winner-take-all" laws also encourage candidates to focus disproportionately on a limited set of swing states. This is because small changes in the popular vote in those states produce large changes in the electoral college vote. For example, in the 2016 election, a shift of 2,736 votes (or less than 0.4% of all votes cast) toward Donald Trump in New Hampshire would have produced a four electoral vote gain for his campaign. A similar shift in any other state would have produced no change in the electoral vote, thus encouraging the campaign to focus on New Hampshire above other states.

The current system also decreases voter turnout in states without close races. Voters living outside the swing states are more certain of which candidate is likely to win their state, and this knowledge of the probable outcome decreases their incentive to vote. A report by The Center for Information and Research on Civic Learning and Engagement (CIRCLE) found that turnout among eligible voters under 30 was 64.4% in the ten closest battleground states and only 47.6% in the rest of the country – a 17% gap.

The Electoral College was initially conceived as a deliberative body that would weigh the inputs of the states and protect the country from electing an unfit President. However, it has never served this purpose in practice. Since 1796, presidential electors have acted as "rubber stamps" for their parties' nominees. The election of Donald Trump, whom some view as unfit for office, is cited as evidence that the Electoral College does not perform its protective function.

The current system for electing the President of the United States has several shortcomings, including the "winner-take-all" laws, which can result in a discrepancy between the popular vote and the Electoral College. This system also encourages candidates to focus on swing states and can decrease voter turnout in states without close races. Additionally, the Electoral College, which was intended to protect against unfit candidates, has not served this purpose in practice.

The possibility of abolishing the Electoral College

The Electoral College system has been a topic of debate for over 200 years, with more than 700 proposals introduced in Congress to reform or eliminate it. The Electoral College is constitutionally mandated, and abolishing it would require a constitutional amendment. This would be a laborious process, needing significant consensus and at least two-thirds affirmation from both the House and the Senate, as well as approval from at least 38 out of 50 states.

Public opinion is divided, with partisan differences in attitudes. Democrats tend to favor replacing the Electoral College with a popular vote system, while Republicans are more evenly split. A 2024 Pew Research Center survey found that 63% of Americans would prefer the winner of the presidential election to be the person who wins the most votes nationally, while 35% favor retaining the Electoral College system.

The Electoral College has been criticized for allowing candidates to win the presidency without securing the most votes nationwide, as seen in the 2000 and 2016 elections. This has led to concerns about the disproportionate focus on swing states and the impact on voter turnout in other states.

Some states have enacted the National Popular Vote law, which aims to elect the candidate who receives the most popular votes in all 50 states and guarantees that every vote is equal. However, this law is yet to take effect, as it requires states with a majority of electoral votes (270 out of 538) to enact it.

While there is a push to abolish the Electoral College, it is important to note that the Constitution and courts have allowed states some leeway in how their Electoral College representatives are chosen. The Supreme Court has ruled that states can determine how electors are apportioned and chosen, but it has not addressed whether states or electors can decide which candidate gets the electors' votes.

The selection of electors

The Electoral College is the institution through which the next president of the United States is chosen. There are 538 total electors who cast their votes, and a presidential candidate must receive a simple majority of 270 electoral votes to win the election. Each state receives a minimum of three electoral votes, with one electoral vote per senator and an additional number of votes equal to the state's number of representatives in the House of Representatives.

State laws regarding the selection of electors can vary. While some states have laws requiring electors to vote for the candidate who received the most popular votes in their state, also known as "winner-take-all" laws, other states, like Maine and Nebraska, have rejected this approach and instead allocate their electoral votes by congressional district. Additionally, 32 states and the District of Columbia have laws to prevent "faithless electors," or electors who vote against the popular vote in their state. These laws have been upheld by the Supreme Court, allowing states to enforce penalties such as fines or replacement of electors.

The National Popular Vote Interstate Compact (NPVIC) is a multi-state agreement that further influences the selection of electors. Under the NPVIC, states commit to awarding their electoral votes to the candidate who wins the nationwide popular vote, regardless of the outcome in their individual state. As of 2025, 15 states and the District of Columbia have passed laws to adopt the NPVIC, and it will take effect once states with a majority of electoral votes (270 of 538) have joined.

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