Five fictional Electoral College outcomes from the 2016 presidential election

The Constitution provides that when it comes to presidential elections, "[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors . . . ." State legislatures have great discretion in deciding how to choose electors.

Forty-eight states and the District of Columbia choose the same process: the candidate who receives the plurality of votes in a statewide election wins all of that state's electors. (That is, all the state's pledged electors; electors, of course, can be faithless, as some were this election.) In Maine and Nebraska, the system is slightly different--two electors are award on this basis, and the remaining electors (two in Maine, three in Nebraska) are awarded to the winner of each congressional district.

In the 2016 presidential election, this system yielded 306 pledged electors for Donald Trump and 232 for Hillary Clinton. (The numbers changed slightly because of faithless electors.)

But there are many ways that electors might be awarded. What would the 2016 presidential election have looked like under other systems? Of course, the candidates and voters would have behaved differently, but it's worth exploring how even some seemingly small changes to the rules could dramatically alter the outcome. I created a few scenarios and assumed that all 50 states and the District of Columbia followed them. (Again, these all projected a pledged elector total.)

First, a purely proportional system. In each state, I divided the total number of electoral votes by the percentage of votes received. I used ordinary rounding rules. In a couple of states, that yielded one too many votes, and I deducted it from the candidate with the smaller fraction that was rounded; in others, it was a vote short, and I gave it to the candidate that was the statewide winner. There was no floor, so it made it much easier for third-party candidates to secure a vote.

Clinton 265
Trump 261
Johnson 10

Stein 1
McMullin 1

Because no candidate received 270 electoral votes, the election would have been sent to the House, which would have chosen among Clinton, Trump, and Johnson. The Senate would have chosen between Kaine and Pence.

Johnson would receive two electors from California, and a scattered number of votes in other states. Stein's single electoral vote would have come from California; McMullin's from Utah.

Second, a proportional system among candidates who received at least 15% of the vote. That ensured that only sufficiently "serious" candidates received the vote. This is not unlike many state presidential primaries.

Clinton 270
Trump 267
McMullin 1

This scenario would have been a nailbiter to the end, where rounding errors in some states (or, perhaps, in my own spreadsheet!) might have swung the election into a tie or to Mr. Trump. Assuredly, recounts would abound for those fractions that would have swung an elector from Mrs. Clinton to Mr. Trump.

Third, a winner-take-all if a candidate exceeds 50% of the vote, otherwise proportional among candidates who received at least 15% of the vote. Currently, states award their electoral votes to the winner of a mere plurality. But perhaps a state would choose to award its electoral votes on a winner-take-all basis only if that candidate secured a majority of the vote, not merely a plurality. Otherwise, electors would be awarded proportionally (here, using the 15% floor). This is also similar to how many states award delegates in presidential primaries.

Trump 277
Clinton 260
McMullin 1

Fourth, an elector per congressional district and two electors to the statewide winner. This would mirror the Maine and Nebraska method, but instituted nationwide. Of course, in states with a single at-large congressional representative (or the District of Columbia), three votes would go to the statewide winner. The heavy lifting has been done elsewhere to calculate these totals, leaving the simpler task to this compilation....

Trump 290
Clinton 248

Fifth, state legislatures select the presidential electors themselves. This was a common way of selecting electors through the 1824 election. I looked at the partisan composition of all state legislatures in November 2016 and assumed they assembled in a joint session to choose electors. I then assumed partisan allegiances would stand (no small assumption this election!): Democratic members would vote for Mrs. Clinton, Republican members would vote for Mr. Trump. (I assumed Congress would empower the District of Columbia's Council to choose its electors.)

Trump 338
Clinton 200

Of note, the outcome looks almost no different than the billions spent on a popular election. The Minnesota, New Hampshire, Nevada, and Virginia legislatures had Republican control, and their electoral votes would have been given to Mr. Trump (under the assumed scenario). Apart from Maine's district system, that's the total difference in the outcome. The slimmest margin came from Washington state, where the Senate was controlled by Republicans by a single vote, and the House by Democrats by two votes, giving Mrs. Clinton all 12 electors by one vote.

You can examine the actual results of the 2016 election on Wikipedia. Now, below, are the detailed state-by-state totals for each of these five scenarios.


Purely Proportional System
  Clinton Trump Johnson Stein McMullin
Alabama 3 6      
Alaska 1 2  
Arizona 5 6      
Arkansas 2 4  
California 35 17 2 1  
Colorado 5 4  
Connecticut 4 3      
Delaware 2 1  
District of Columbia 3 0      
Florida 14 14 1  
Georgia 7 9      
Hawaii 3 1  
Idaho 1 3      
Illinois 11 8 1  
Indiana 4 6 1    
Iowa 3 3  
Kansas 2 4      
Kentucky 3 5  
Louisiana 3 5      
Maine 2 2  
Maryland 7 3      
Massachusetts 7 4  
Michigan 7 8 1    
Minnesota 6 4  
Mississippi 2 4      
Missouri 4 6  
Montana 1 2      
Nebraska 2 3  
Nevada 3 3      
New Hampshire 2 2  
New Jersey 8 6      
New Mexico 3 2  
New York 17 11 1    
North Carolina 7 8  
North Dakota 1 2      
Ohio 8 9 1  
Oklahoma 2 5      
Oregon 4 3  
Pennsylvania 10 10      
Rhode Island 2 2  
South Carolina 4 5      
South Dakota 1 2  
Tennessee 4 7      
Texas 16 21 1  
Utah 2 3     1
Vermont 2 1  
Virginia 7 6      
Washington 6 5 1  
West Virginia 1 4      
Wisconsin 5 5  
Wyoming 1 2      
Totals 265 261 10 1 1
Proportional, 15% Floor
  Clinton Trump McMullin
Alabama 3 6  
Alaska 1 2  
Arizona 5 6  
Arkansas 2 4  
California 36 19  
Colorado 5 4  
Connecticut 4 3  
Delaware 2 1  
District of Columbia 3 0  
Florida 14 15  
Georgia 8 8  
Hawaii 3 1  
Idaho 1 3  
Illinois 12 8  
Indiana 4 7  
Iowa 3 3  
Kansas 2 4  
Kentucky 3 5  
Louisiana 3 5  
Maine 2 2  
Maryland 6 4  
Massachusetts 7 4  
Michigan 8 8  
Minnesota 5 5  
Mississippi 2 4  
Missouri 4 6  
Montana 1 2  
Nebraska 2 3  
Nevada 3 3  
New Hampshire 2 2  
New Jersey 8 6  
New Mexico 3 2  
New York 18 11  
North Carolina 7 8  
North Dakota 1 2  
Ohio 8 10  
Oklahoma 2 5  
Oregon 4 3  
Pennsylvania 10 10  
Rhode Island 2 2  
South Carolina 4 5  
South Dakota 1 2  
Tennessee 4 7  
Texas 17 21  
Utah 2 3 1
Vermont 2 1  
Virginia 7 6  
Washington 7 5  
West Virginia 1 4  
Wisconsin 5 5  
Wyoming 1 2  
Totals 270 267 1
Winner-Take-All Over 50%; Otherwise, Proportional, 15% Floor
  Clinton Trump McMullin
Alabama   9  
Alaska 3  
Arizona 5 6  
Arkansas 6  
California 55    
Colorado 5 4  
Connecticut 7    
Delaware 3  
District of Columbia 3    
Florida 14 15  
Georgia   16  
Hawaii 4  
Idaho   4  
Illinois 20  
Indiana   11  
Iowa 6  
Kansas   6  
Kentucky 8  
Louisiana   8  
Maine 2 2  
Maryland 10    
Massachusetts 11  
Michigan 8 8  
Minnesota 5 5  
Mississippi   6  
Missouri 10  
Montana   3  
Nebraska 5  
Nevada 3 3  
New Hampshire 2 2  
New Jersey 14    
New Mexico 3 2  
New York 29    
North Carolina 7 8  
North Dakota   3  
Ohio 18  
Oklahoma   7  
Oregon 7  
Pennsylvania 10 10  
Rhode Island 4  
South Carolina   9  
South Dakota 3  
Tennessee   11  
Texas 38  
Utah 2 3 1
Vermont 3  
Virginia 7 6  
Washington 12  
West Virginia   5  
Wisconsin 5 5  
Wyoming   3  
Totals 260 277 1
One Elector Per Congressional District; Two to Statewide Winner
  Clinton Trump
Alabama 1 8
Alaska 3
Arizona 4 7
Arkansas 6
California 48 7
Colorado 6 3
Connecticut 7  
Delaware 3  
District of Columbia 3  
Florida 13 16
Georgia 4 12
Hawaii 4  
Idaho   4
Illinois 13 7
Indiana 2 9
Iowa 6
Kansas 1 5
Kentucky 1 7
Louisiana 1 7
Maine 3 1
Maryland 9 1
Massachusetts 11  
Michigan 5 11
Minnesota 5 5
Mississippi 1 5
Missouri 2 8
Montana   3
Nebraska 5
Nevada 4 2
New Hampshire 3 1
New Jersey 9 5
New Mexico 4 1
New York 20 9
North Carolina 3 12
North Dakota   3
Ohio 4 14
Oklahoma   7
Oregon 6 1
Pennsylvania 6 14
Rhode Island 4  
South Carolina 1 8
South Dakota 3
Tennessee 2 9
Texas 14 24
Utah   6
Vermont 3  
Virginia 7 6
Washington 9 3
West Virginia   5
Wisconsin 2 8
Wyoming   3
Totals 248 290
State Legislature Choosing Electors in Joint Session
  Clinton Trump
Alabama   9
Alaska 3
Arizona   11
Arkansas 6
California 55  
Colorado 9  
Connecticut 7  
Delaware 3  
District of Columbia 3  
Florida 29
Georgia   16
Hawaii 4  
Idaho   4
Illinois 20  
Indiana   11
Iowa 6
Kansas   6
Kentucky 8
Louisiana   8
Maine 4  
Maryland 10  
Massachusetts 11  
Michigan   16
Minnesota 10
Mississippi   6
Missouri 10
Montana   3
Nebraska 5
Nevada   6
New Hampshire 4
New Jersey 14  
New Mexico 5  
New York 29  
North Carolina 15
North Dakota   3
Ohio 18
Oklahoma   7
Oregon 7  
Pennsylvania   20
Rhode Island 4  
South Carolina   9
South Dakota 3
Tennessee   11
Texas 38
Utah   6
Vermont 3  
Virginia   13
Washington 12  
West Virginia   5
Wisconsin 10
Wyoming   3
Totals 200 338

In today's WSJ: "Faithless Electors: Now It’s Up to Congress"

In today's Wall Street Journal, I have an opinion piece entitled, "Faithless Electors: Now It's Up to Congress." It begins:

The 538 members of the Electoral College convened Monday and cast a majority of their votes for Donald Trump for president and Mike Pence for vice president. When Congress convenes on Jan. 6 to count the votes, it will mostly be a formality. But its decision to count or exclude the votes of some “faithless electors” will set a precedent for future elections.

And it concludes:

These are challenging questions that cannot be answered by a judge or a court. Only Congress decides what to count. And while it won’t change the outcome of this election, its decisions will affect how states handle faithless electors in the 2020 election and beyond.

The Electoral College won't stop Trump--but it may change how political parties pick electors in 2020

The presidential election is quickly approaching--on December 19, in state capitals around the country, presidential electors will assemble and vote overwhelmingly for Donald Trump and for Hillary Clinton. It is almost guaranteed that Mr. Trump will secure at least 270 electoral votes, the minimum necessary, and probably something close to the 306 electoral votes he is presumed to receive. And while there have been discussions among "Hamilton Electors" to vote for someone else, the Constitution is designed to thwart such conspiracies across states, and Mr. Trump's presumptive lead is all but insurmountable. (Please note that while the Electoral College can elect someone other than Mr. Trump, or can elect no one at all, I am simply describing, as the links above suggest, why it is, among other things, a lead that is "all but insurmountable.")

Last week, five presidential electors in three states have filed lawsuits in federal courts seeking to strike down laws that purport to bind electors to vote for the candidates they are pledged to support. They seek to ensure that they have the right to vote for whomever they wish, regardless of the candidate they are supposed to support, and to have a court conclude that such laws instituting criminal or civil penalties are unconstitutional. (For the record, I agree that such laws may be unconstitutional.) The litigation seeks to limit the scope of Ray v. Blair, the 1952 Supreme Court decision that affirmed the ability of states to impose (non-binding) pledges on presidential electors. (The enforceability of such pledges was left for another day.)

But litigation occurs in a particular context, and there are significant procedural problems to these claims. Those problems may prevent courts from reaching the merits of such claims. These claims all seriously struggle from the likely defense of laches, as the electors have brought claims just days before the Electoral College is scheduled to meet--when they have been nominees for many months, and when they knew they would be called to serve as of November 9. It is not immediately obvious that the state laws in California and Colorado empower state election officials to remove "faithless" electors from their offices, which suggests that abstention might apply, or simply the application of a canon of statutory interpretation that invokes the constitutional avoidance doctrine. The pleadings of some do not make it obvious that the electors intend to violate their pledge, only that they want to liberty to do so, which may (perhaps) lead to ripeness issues or even the failure to state a claim.

But even setting these procedural issues aside, the curious nature of these claims is where they have been filed. They are purporting to be an "anti-Trump" movement. But, these are Clinton electors in states carried by Mrs. Clinton! That is, their movement would undermine the Democratic candidate's ability to succeed in the Electoral College! And even total victory in these states would yield a grand total of zero Trump electors voting for someone other than Mr. Trump!

Now, I suppose there are two long-game purposes in this effort. The first is for these electors to force a kind of "national conversation" about the independent judgment of electors and to (quite publicly) encourage Trump electors to join them and vote for someone other than Mr. Trump. (Of course, they were already voting for someone other than Mr. Trump.) While freeing Clinton electors from their pledge has zero impact on the bottom line--if every Clinton elector voted for, say, John Kasich, then Trump still wins with 306 electoral votes--it could spark discussion with other electors.

The second is that a ruling in one court, perhaps appealed to a circuit court or even the Supreme Court, would have a ripple effect in other jurisdictions with Trump electors. Given the procedural hurdles already in place, it is unlikely that this could happen, but remains a possibility.

Of course, further buried within these electors' lawsuits is that they have largely been filed by former (and, perhaps, current) supporters of Bernie Sanders, some of whom before even Election Day expressed public displeasure at the prospect of casting votes for Mrs. Clinton. While the salutary effort is something in the vein of "anti-Trump," in reality it seems to be driven more by anti... well, Democratic establishment, at least for these particular Colorado and Washington electors.

(It's also worth noting that multiple Trump electors have expressed opposition to Mr. Trump--two electors, one from Georgia and another from Texas, intend to resign when the Electoral College meets by refusing to show; a third, from Texas, once supported Mr. Trump but has since written a piece published in the New York Times opposing him.)

So these lawsuits are not really designed to stop Mr. Trump from securing 306 electoral votes (or, really, the 270 electoral votes he needs to win). But it has created some rather curious alliances. For instance, the Republican elected officials called to defend the law in Colorado have come out quite strongly against the plaintiffs--that is, these Republicans are aggressively defending Mrs. Clinton's electoral vote total in Colorado. And the Colorado Republican Party has intervened in the case--and the Colorado Democratic Party has not.

That said, it is, I think, less curious than one might expect, at least the behavior of Republicans and when viewed through a (perhaps) Rawlsian framework. One might take the myopic view and claim that Colorado Republicans are trying to defend Mr. Trump's election, but that strikes me fairly unlikely--consider the two long-game purposes I enumerated above, which are exceedingly remote; and consider that the direct impact of the litigation would undermine Mrs. Clinton's position far more than Mr. Trump's.

Instead, consider what it would mean in a state--any state, regardless of your partisan preference--if you had fairly settled expectations of the roles of electors, and even a law that carried some generic threat against electors who acted against their pledge, and those settled expectations were called into question. As a member of a political party or a loyal partisan official, such a result would be fairly horrifying. After all, it would mean that your formerly-loyal slate of electors would now be open to influence; and even if your party's slate of electors did not win this particular election, it would also affect your slate of electors in future elections when you did win.

Despite the fact that electors may prefer independence (and that the Constitution, in my view, mandates it!), parties certainly do not prefer it. It is a reason they are empowered in most states to choose the slates of presidential electors. And it is a terrific loss of power if those electors now expect to act freely--indeed, so freely that they may undermine the party's nominee. The rational behavior of partisan officials, then, would be to defend such laws quite vigorously, regardless of partisan affiliation.

I expect, then, that this behavior of presidential electors will fairly significantly alter the behavior of political parties selecting slates of presidential electors in 2020, particularly if parties are worried that the legal pledges and settled expectations from previous elections have been called into grave doubt. Party reforms are some of the easiest reforms, because they require no new laws. But I would expect, at least in some jurisdictions, to see to following changes.

First, I would expect to see delays in the selection of slates of electors. Parties typically nominate slates of electors in the spring or summer, often before the parties' nominating conventions (and sometimes even before the parties' nominees are known). But in most states, such slates need not be submitted until just weeks before the November election date.

Second, parties are likely to engage in far greater vetting of such nominees. By postponing the selection process, parties might be more inclined to choose electors who have already gone on record expressing support of the party's presumptive nominee.

Third, parties might institute more control over who qualifies as electors for their party. They often include rules that one must be a member of that party, such as someone who voted in that party's primary. But they may require longer periods of party affiliationor greater demonstration of loyalty before qualifying as an elector.

Fourth, parties may defer to the presumptive nominee in selecting slates of electors. It's understandable why Bill Clinton was an elector in New York, of course! And greater control to candidates would ensure greater loyalty for nominees.

It is the case, I think, that these electors' efforts to sue to undo state pledges will likely fail; and that even in success the Electoral College will not meaningfully affect the settled expectations of the outcome of this election. But after all this, when the dust settles, I anticipate some significant change in behavior from political parties to fend off future efforts from electors to undermine their own preferences.

New effort (doomed to fail) calls for presidential electors to collectively exercise independent judgment

Presidential electors will meet in state capitals around the country on December 19. They’ll vote for the next president and vice-president. We assume most of them will vote for Donald Trump and Mike Pence. But a group of anti-Trump electors, mostly Democrats, have sought to form an alliance around a consensus candidate who is neither Trump nor Hillary Clinton. They remind us that electors are supposed to exercise “independent judgment.” They hope to collectively exercise independent judgment--something of an oxymoron.

But the Framers expressly designed the Electoral College to thwart such schemes. They’ve repeatedly failed in the past, and they’re all but doomed to fail this year.

The Constitution's design

During the federal convention of 1787, the Framers worried that selection of the president would be the subject of political “intrigue” or fall into the hands of a “cabal” of decision-makers. Alexander Hamilton explained in Federalist 68 that the Electoral College would avoid such “mischief.” If electors assembled in a single place, Hamilton noted, it would invite “heats and ferments,” “cabal, intrigue and corruption,” and a selection process gone wrong.

Instead, electors from each state would assemble in that state, separated from the electors of all the other states. They would meet on the same day across these states, “detached and divided” from another. Hamilton emphasized that that could not engage in any “combinations” that would affect their independent judgment. Electors would vote for a president and a vice president based upon the deliberations in their own states, not from any agreement among electors.

Early attempts for electors to conspire with one another across the states failed badly. As originally designed, electors voted for two candidates: the candidate with the most votes became president, and the candidate with the second-most votes became vice president. Federalists in 1796 wanted John Adams as president and Thomas Pinckney as vice president. Electors tried to conspire to ensure that Pinckney received fewer votes than Adams; otherwise, a tie would be sent to the House of Representatives. They also needed to ensure that both Adams and Pinckney secured more votes than rival Thomas Jefferson.

But too many Adams electors cast their second votes for someone other than Pinckney. In the end, Adams secured 71 electoral votes and Pinckney 59—but Jefferson received 68 electoral votes, good enough for second place and to serve as Adams’s vice president. Federalists had been thwarted by the decentralized design of the Electoral College.

The Twelfth Amendment permitted electors to designate which candidate would be the president and which would be the vice president. And no effort to thwart a candidate's election has succeeded since--in part because the system is designed to thwart such efforts.

Intrastate electoral independence

When electors exercise their independent judgment, they do so because of the deliberative process that occurs within their state and almost never collectively crosses state lines. In 1828, for instance, seven electors voted for William Smith as Andrew Jackson’s vice president instead of John Calhoun—all seven were in Georgia. Thirty electors in 1832 voted for William Wilkins as Andrew Jackson’s vice president instead of Martin Van Buren—all thirty were from Pennsylvania, as was Wilkins. And in 1836, twenty-three electors abstained from voting for vice president instead of supporting Democratic nominee Richard M. Johnson—all twenty-three were from Virginia.

Indeed, as long as electors are casting votes (many years ago, proposals for an "automatic" Electoral College were floated, eliminating the human element), it is good for electors to exercise independent judgment. In 1872, for instance, it was good that most Democratic electors voted for someone other than Democratic presidential nominee Horace Greeley, who died after Election Day. Or for eight electors to vote for someone other than William Howard Taft’s running mate James Sherman, who died a week before Election Day.

But exercising independent judgment as individual is quite different from conspiring collectively toward a common outcome, and particularly different from conspiring across state lines.

Political parties

It's true that we have something quite different than what the Framers anticipated in 1787 (but was quite well-established by 1804 when the Twelfth Amendment was ratified): the two-party political system that still dominates our election system. The rise of political parties created stability in the process—while electors could not conspire across states, their common partisan affiliation and the party’s selection of a nominee brought stability to the process across the country. Voters (or state legislatures selecting electors) knew well in advance that the electors would support a particular candidate--the candidate that party nominated. These were party loyalists.

While it would be essentially impossible to conspire during the meeting of the Electoral College, as a practical matter, partisan loyalties offered contrasting visions for presidential electors, and the Electoral College quickly became a fairly stable and routine selection process between the candidates of two parties. Indeed, such loyalty became so obvious that today almost all states have stopped listing the names of electors on the ballot, listing on the electors.

This description provides two important conclusions. First, the ex ante nature of presidential electors' loyalties makes for fairly easy affiliation with a single presidential candidate. It has been an impossible effort to corral presidential elector support across the states ex post, sometime after Election Day but before the meeting of the electors.

Second, the two-party system did change how elections occurred--we ended the expectation that races would be resolved in Congress. Since 1804, just two presidential and one vice-presidential election have been resolved in Congress--the election of 1824, where four candidates secured electoral votes but no one secured a majority; and the election of 1836, where just enough Virginia electors cast votes for someone other than the presumptive vice president that the election was sent to the Senate (which voted for the presumptive vice president anyway). As originally designed, the thought was that independent judgment would rarely result in a majority, sending the election to the House--a notion that collective deliberation would not occur!

An contingent election in the House

Furthermore, it's worth emphasizing that this Electoral College effort will not send the presidency to Hillary Clinton. It is, at best, designed to turn at least 38 Republican electors (and perhaps some Democratic electors) to vote for someone else (perhaps John Kasich), depriving Mr. Trump of at least 270 electoral votes and sending the election to the House of Representatives. But, as I've noted before, if the Republican-led House and the Republican-controlled state delegations--led by individuals like Paul Ryan--did not stop Mr. Trump at much easier points early in this campaign (such as during the Republican National Convention)--I find it hard to believe it would choose to deny him the presidency at this moment. Again, while it would be within the House's prerogative to select among the top three vote-getters in the implausible event no one secured 270 votes on December 19, it is yet another unlikely result.

Collective action

Finally, it takes only a moment to recognize the massive collective action problem, built into the design of the Electoral College. What assurance to electors have that their counterparts in the other 49 states (and the District of Columbia) will act as promised? Even if many did agree in advance, it is quite another to trust that such decisions are being made elsewhere.

And there is a potential unraveling problem in the digital age--while conspiracies might have been impossible in 1787, they face the unraveling of a decision-making process across time zones. Electors typically meet at noon in state capitals--noon, local time. (A few around 1 pm, and perhaps others scattered around these hours.) Early-voting electors have no guarantees that later-voting electors are voting as promised; and later-voting electors can observe if early-voting electors defected, which increases the likelihood of their own defection.

An effort doomed to fail

This piece, I hope, describes why such an effort is doomed to fail. It might be the case that, as a normative matter, we would prefer electors to conspire across state lines. But the system is designed to thwart such efforts--and quite successfully. We have had 53 presidential elections since the passage of the Twelfth Amendment; the outcomes have never been altered by "faithless" electors, and only once (the vice presidential election of 1836) was the race sent to Congress, which resolved it as would have been expected from popular voting, anyway.

It might be the case, as many have suddenly discovered, that the Framers had wisdom in authorizing the independent discretion of electors. But it is also the case that the Framers decidedly created a system that would be built upon independence during the meeting of electors and thwart conspiracies among electors--perhaps another element of our constitutional design that could inform what it is likely to occur this December 19.

Slopegraph of electoral votes and popular votes for presidential candidates

After my perspective on electoral vote and popular vote margins--in which I argued that the popular vote is meaningless--I thought about how Electoral College and popular vote margins related to one another. I took a stab at a visualization by creating a slopegraph.

This was much more challenging than I thought. And perhaps it's more deceptive than informative. But why not give it a shot and let the critiques come....

I wanted to show the relationship between electoral votes and popular votes. I started by taking the raw popular vote totals of each candidate--this could have been as a percentage of electoral vote, but 1968 really screwed things up and messed with the visualization if I were using the raw electoral vote totals as the left data point, so I took the slightly less perfect version of the raw vote totals. I started from 1944, which had just 531 electoral votes, in comparison to today's 538, and some other deviations along the way.

Then I opted for the percentage of the two-party popular vote margin, which was also imperfect as a kind of comparison--it might lead to significant fluctuations if there is a particularly significant third-party candidate who draws votes disproportionately from one candidate.

In order to do the slopegraph on two different Y axes, I opted to calculate Z-scores for each side. That offered the relative performance between electoral votes and between popular votes, and it offered some comparable scale between the two from 1944 to 2016.

You can see a couple of significant differences between the electoral vote "landslides" of 1972 (Nixon winning 520 electoral votes, dark green) and 1980 (Reagan winning 489 electoral votes, light green). In '72, Nixon snagged a whopping 61.8% of the two-party popular vote. But in '80, Reagan secured just 55.3% of the two-party popular vote.

There's not much of a rhyme or reason between the performance in the Electoral College and the popular vote--except that we might notice particularly low-performing popular vote winners: Bush in 2000 (271 electoral votes, blue) had the razor-thin electoral advantage; somewhat healthier were Trump in 2016 (306 electoral votes, pending December 19, red) and Kennedy in 1960 (303 electoral votes, orange).

In any case, perhaps after all the flaws I've identified and the meaningless of the popular vote, anyway, such a slopegraph is of less than even marginal value. But here it is, if you find it of interest.

The National Popular Vote is a pretty terrible way to change our way of electing the president

Given that Hillary Clinton is on pace to outperform Donald Trump in the national popular vote but lose the electoral vote (and the presidency), this currently-meaningless scenario is renewing calls to alter or abolish the Electoral College. The most pressing plan is the National Popular Vote, a compact between the states to award their electoral votes to the winner of the national popular vote once 270 electoral votes' worth of states agree to do so--effectively circumventing the Electoral College and using the selection of electors on a nationwide rather than statewide basis. Having recently been approved in New York, 165 electoral votes' worth of states have approved the plan.

I want to set aside the issue of whether the Electoral College should be (actually or effectively) abolished for a moment. There are some good theoretical grounds, I think, why the Electoral College--at least, a system designed to recognize individual states and all residents in a state as a proxy for political power rather than simply raw voter totals--retains some (admittedly, imperfect!) merit. Instead, this argument will focus exclusively on the means of the National Popular Vote, as a legal matter and as a practical matter. On both grounds, I think it falls quite short.

As a legal matter, I have written extensively that the compact is unconstitutional absent congressional consent. States are prohibited from entering into interstate compacts with one another without the consent of Congress. The Supreme Court has slowly carved out exemptions to this provision and now (or most recently) only requires consent for compacts that affect the balance of power between the federal and state governments or among the several states. The decision of some states to change the balance of power among presidential electors--essentially, prior to an election, ensuring that non-compacting states' electors are irrelevant to the presidential election--is the kind of shift of power among states that requires congressional consent under even the most generous construction of the Compact Clause. As this process was designed to avoid Congress--and because I think congressional consent is unlikely in any event--the compact would fail. (More details can be dug out of those articles.)

There have been other concerns raised by other commentators--that the compact would improperly strip the House of its power to choose a president in a contingent election when no candidate secured a majority; that the state legislature's plan to award electors on a basis other than the decision of the people in that state is prohibited; that the compact may run afoul of the Voting Rights Act for certain jurisdictions with sufficiently minority populations.

As a practical matter, the decision to change presidential elections at a state level without including a uniform national plan for elections, or empower Congress to do so, is deeply problematic. A recent, and quite significant, effort to amend the Constitution took place in 1970, and even it fell short of the likely required federal power we would need to regulate presidential elections. A nice summary from CQ Almanac shows some of the things a federal amendment was designed to do. For instance, the constitutional amendment guaranteed some uniformity in voter qualifications:

"The electors of President and Vice President in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature, except that for electors of President and Vice President, the legislature of any State may prescribe less restrictive residence qualifications and for electors of President and Vice President the Congress may establish uniform residence qualifications."

Additionally, the proposed amendment provided a times, places, and manner provision for presidential elections, similar to such a provision for congressional elections:

"The times, places, and manner of holding such elections and entitlement to inclusion on the ballot shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations.

But there are no such provisions for the National Popular Vote. I've written about the "invisible federalism" that exists within the Electoral College. Right now, fifty-one jurisdictions set their own rules. That means a true national popular vote would require some significant centralization of our electoral process, some of which was baked into the 1970 proposed constitutional amendment. Consider some things that ought to be nationalized in a presidential election:

Uniform voter qualifications. States have some fairly dramatic differences in the qualifications for voters. Some bar anyone ever convicted of a felony from voting, others permit felons imprisoned to vote. Some in the future may lower their voting age, as they have done in the past. Some have different standards for the mentally ill. When faced with such an option to the proposed amendment, Congress rejected it; but it would likely need to be an element of any future effort.

Uniform voting procedures. States set different absentee and early voting requirements. They set different residency requirements. Some have voter identification laws and others don't. Some open their polls at different hours. Some have all mail-in elections. Recount procedures trigger differently in different states. The proposed constitutional amendment got part of the way there in permitting Congress to regulate such procedures if it deemed such laws necessary to preserve uniformity.

Uniform ballot access standards. Even more so in an election like the one that took place in 2016, state permit different candidates to appear on the ballot. Evan McMullin and Jill Stein appeared on the ballot in a handful of jurisdictions. States like Texas have extremely early ballot access deadlines for independent candidates. Indeed, an effort to keep Donald Trump off the ballot in Minnesota would have wreaked havoc in a national popular vote total.

Standard ballot content. Consider, for instance, California including a dozen ballot propositions on its presidential ballot, boosting turnout; or hotly-contested United States Senate races, which influence turnout. We may see some oddities in turnout simply because of the other races that happen to appear on the ballot--and if we want a truly national election, we ought to aspire to more uniform standards.

A requirement to hold a popular election in the first place. And under the current system, states are not even required to hold a popular election in the first place. A state legislature could strip its citizens of the right to vote in presidential elections if it so desires, something like many states near the Founding did, or like Colorado did in 1876. Of course, such a decision might cut off the nose to spite the face... but remains within the realm of possibility. (A version of this challenge would be a state's future decision to use instant run-off voting, which offers different challenges in tabulating the votes from that jurisdiction--in a true national election, we would need to decide whether first past the post or an alternative system would be used. This is hypothetical at the moment because every state currently uses first past the post.)

One rejoinder I've heard goes something like this: "Yes, the votes are all commingled, but that doesn't really mean anything. After all, the electoral votes are all commingled in the final totals, too, even though there are separate elections that have occurred using different systems."

But I've never understood this rejoinder. It's something like saying, "Yes, I understand you planned to eat roast beef, mashed potatoes, green peas, and apple pie tonight. But because they're all going to end up in your stomach anyway, there's no difference if we simply blended them all together before consuming them."

You see, our present electoral system holds fifty-one separate contests. States can do whatever they want within their electoral process--they're going to get a fixed number of electoral votes, and whatever they do to determine who gets those votes (or, more precisely, who the electors will be) is up to each state. Yes, at the end of the day, the votes are combined, but only after the results have been limited to the boundaries of that particular state.

Now, it's also the case that many elections are administered at the county level, and those county-level decisions affect statewide elections--the format of the ballot, the type of ballot used (optical scan or direct-recording electronic voting machine), local races, the training for poll works, and so on. And perhaps we have to accept some lack of uniformity in our electoral process simply because of the expansive country we live in. But it may be worth thinking carefully about how uniform our elections should look (perhaps drawing inspiration from other countries that maintain both national and local election systems), and what that ought to look like in a constitutional amendment. The National Popular Vote offers absolutely no opportunity to ask these questions.

Finally, I've mentioned before that we tend to prefer majority winners in our electoral system, and we have seen that the Electoral College can turn fairly small margins into rather lopsided victories, a kind of affirmation for the president (mostly, I think, a happy and incidental effect of the system, not a part of its design). Only some presidents secure more than 50% of the popular vote but all secure a majority of the electoral vote (or the House chooses the president by a majority of states). A runoff or some guarantee that the winner gets 50% of the vote--or a nationalized instant run-off process. But the National Popular Vote makes no such guarantee. Perhaps we are ready to say that the person who gets the most votes wins, as we often do in other elections where a plurality winner takes office. But it is worth considering whether that, too, should be a part of the conversation of a new presidential election system--something that simply cannot be accomplished under the National Popular Vote.

It may well be that Americans are ready for a new system of electing the president, the normative or theoretical reasons a matter beyond the scope of this post. But in doing so, the National Popular Vote is a fairly ineffective way of doing so, and, as a cure for the problems perceived by many, may ultimately be worse than the disease.

No, the Electoral College will not give the presidency to Hillary Clinton

There is a nascent but rapidly growing effort from supporters of Hillary Clinton to persuade presidential electors who would otherwise support Donald Trump to cast votes for Mrs. Clinton instead when the Electoral College meets December 19. Absent an extraordinary change of circumstances, it simply won't happen. Mr. Trump will win a majority of electoral votes on December 19 and become the 45th president of the United States.

It's worth noting that a lot of options to affect the presidential outcome have long since past--usually, waiting until after the election is not a good idea to affect an election.

I wrote back in March that state legislatures could choose their own electors instead of leaving the matter to a popular vote; but after a popular vote was held November 8, that strategy is not an option.

I also wrote in August that parties could select electors inclined to support their preferred candidate. The electors, however, have already been selected.

Instead, the only strategy for Mrs. Clinton's supporters is to turn to the Electoral College itself and persuade electors to be "faithless"--that is, persuade them to vote not for Mr. Trump, to whom they pledged (formally or informally) their support, but Mrs. Clinton.

First, it's worth noting that these are loyal Republicans who were selected as Trump electors. Many of them are loyal Trump supporters. The list of viable options, then, is limited to those who oppose Mr. Trump--and not just oppose him, but affirmatively prefer Mrs. Clinton (more on that point below). And this after Mr. Trump has won the election (at least, by all popular reports). It might be that Mr. Trump is not overly popular with many in the Republican establishment. But convincing them now to vote for someone else seems impossible.

Furthermore, these are electors in states that cast a plurality of their votes for Mr. Trump. Going to them and telling them to ignore the wishes of the voters in their own state for the wishes of the country as a whole--which, really, is overwhelmingly the wishes of California and New York--is even more unlikely.

Second, the electors would need to flip to Mrs. Clinton, and not simply refuse to vote for Mr. Trump. In order for a candidate to win, he must secure 270 electoral votes. If he fails to do so, the race is thrown to the House of Representatives, where each state receives one vote, and a majority of the states (26) is required to secure the presidency. Even if enough Trump electors threw all their votes to, say, Mitt Romney, no one would have a majority, the election would go to the House, and the Republican-controlled House where Republicans control a majority of state delegations would, in all likelihood, simply vote for Mr. Trump--absent yet another colossal effort to convince them to change their minds and somehow vote for Mrs. Clinton.

Third, the margin of victory is onerous for Mrs. Clinton's supporters. It appears Mr. Trump has won at least 290 electoral votes, meaning 21 electors would need to switch to Mrs. Clinton to deny him a majority, 22 electors to give her a majority, and 23 or 24 electors to account for Mrs. Clinton's own possible "faithless" electors. If he holds onto Michigan, she'll have secured 306 electoral votes, meaning the numbers increase to 37, 38, and 39 or 40.

These are Herculean numbers under almost any scenario. Consider that in the last 100 years, just nine (depending on your math) electors have been "faithless" and voted for someone other than the person pledged to support. Granted, no such concerted effort has been made to change electors' minds. Robert M. Alexander has surveyed presidential electors and discovered that serious lobbying efforts have occurred before, and that about 10% of electors in previous elections have considered voting for someone else--but did not do so.

Fourth, a few states purport to bind their electors to the individuals they are pledged to support. I've argued such laws may well be unconstitutional and should be repealed. But as they are on the books, it would either limit the pool of possible electors who could change their minds or stir litigation, possibly in multiple states, that would inspire even greater complexity, particularly if Congress is faced with multiple slates of electors.

In short, there is no realistic chance that the Electoral College will change the result of this election. This is different than saying it is not legally possible; as I've noted and defended repeatedly, electors are permitted to vote for whomever they desire--it is that there is essentially no likelihood enough of the would do so in such a way to change the outcome of the election. Circumstances change, of course, and something might still inspire a significant number of electors to change their minds and vote for someone else. But the odds are low. And we have fairly settled expectations that our electors will not be "faithless," something unlikely to change in the weeks ahead.

Hillary Clinton's popular vote margin is meaningless in every way (except pithy tweets)

Hillary Clinton is on pace to secure about a 1 or 2 percentage point margin over Donald Trump in the popular vote totals in the 2016 presidential elections. As of this moment, Mrs. Clinton has about 1.6 million more votes than Mr. Trump in that tally. (UPDATE: this post was last updated Dec. 30.)

Of course, this margin is meaningless. Except, I suppose, in pithy tweets designed to prove a point that is... well, meaningless.

First, campaigns would behave differently if they won elections based on the popular vote rather than the Electoral College. Jonathan Adler ably makes this point. Campaigns are designed to eek out, at any margin, electoral votes, not popular votes. And if the popular vote mattered, then campaigns would be designed differently. The most common analogy is to look at the 1960 World Series. The Yankees outscored the Pirates 55 runs to 27 runs. But the Pirates won the Series, 4 games to 3. That's because it doesn't matter if the Yankees won a game 16-3 or 12-0; the only thing that matters is winning 4 games. The rules define the contest. (UPDATE: Indeed, it appears the Clinton campaign chose to spend money in places like Chicago and New Orleans to increase the popular vote margin--at the expense of "swing" states in the Electoral College.)

Second, voters would behave differently, too. Would New Mexicans have cast over 73,000 ballots for former Republican Governor-turned-Libertarnian nominee Gary Johnson? Would Utahns have cast over 175,000 ballots for Evan McMullin? Would the Great Plains and upper Rockies have voted in such high numbers for the Libertarian nominee (over 5% of the vote in Montana, Wyoming, North Dakota, and South Dakota)? You see, if their votes "mattered" in a national popular vote total, they may well have voted differently. Instead, because their results were restricted to their home states--often fairly reliably Republican or Democratic--voters may have behaved differently.

Third, our laws would have to be different to have a true popular vote tally. Consider, for instance, that Mr. McMullin was only on the ballot in a handful of states, including Utah; or that Green Party candidate Jill Stein was not on the ballot in all fifty states. Or, consider that some states have strict forms of voter identification, and others have none at all; some allow incarcerated felons to vote, and other prohibit them from ever voting if they have been convicted of a felony. We run fifty-one elections in the presidential election; dumping them into a single basket of the "national popular vote" simply doesn't tell us anything meaningful. (For more on that, consider my article in the Arizona State Law Journal on the topic.)

Fourth, while Mrs. Clinton may have the most popular votes, she will be far from a majority of the popular vote. She is likely to secure something around 48% of the popular vote total--meaning 52% of Americans voted for someone else. We tend to prefer majority winners, even though each state in the Electoral College can be carried by a plurality, and many other elections also occur by plurality winners. Nevertheless, note how the Electoral College requires an outright majority to win. And fairly narrow margins can quickly turn into apparent Electoral College landslides--consider 2012, in which Barack Obama defeated Mitt Romney by a popular vote margin of 51.1% to 47.2%, but won the Electoral College soundly, 332 to 206. Until a system with a runoff is in place, we might prefer a system that offers a fairly clear majority winner, whatever the rules may be.

Fifth, this result is exactly what the Electoral College was designed to do! One reason for the Electoral College was to protect the smaller states by guaranteeing them a meaningful say in the outcome of the presidential election, as each state receives three electoral votes, and the smallest states pack a greater punch in the Electoral College than their populations would otherwise suggest. But the smallest states are quite diverse in their partisan allegiances in recent years, and the Electoral College is doing something else.

But as another way of protecting smaller states, the Electoral College ensures that a candidate must have broad geographic support. That is, she cannot "run up the score" in a small number of jurisdictions. Indeed, at the Founding, some worried that New York or Pennsylvania would simply dominate the elections. That's the flip side of guaranteeing some say to smaller states--it's to ensure a broader base of support across the country. Trump looks to carry the plurality in 30 states. That's very broad support in a country of 51 jurisdictions! Granted, some of the support was somewhat narrow, of course--it's the reason he'll lose the popular vote total.

Indeed, a couple of charts displaying the sheer disparity of performance in two states--California and New York--effectively overwhelm the entire rest of the country.

Yes, California and New York two of the largest states. But their margin for Mrs. Clinton will likely exceed 4 million votes; the rest of the country combined will offer something like 3.8 million votes in favor of Mr. Trump. It is a deep geographic imbalance, reflecting a strong intensity of preference in two states for one candidate.

Undoubtedly, there is an appeal to the cry, "The person who gets the most votes wins." But given many complications in our federalism-driven election regime, the answers are far more complicated. In particular, there remain good (at least, good to me) normative reasons for the Electoral College--a requirement of broad geographic support for the presidency rather than pockets of intense support in a couple of places being one of them. For more, read some of my articles on the subject.... (For more on this election and the Electoral College, see John McGinnis's perspective here.)

(I should note that I do not believe we'll see a major push to abolish the Electoral College. The National Popular Vote effort has moved forward in a handful of jurisdictions, mostly Democratic-controlled, and it's pretty much run out of new places to go.)

(UPDATE: Some have critiqued this final claim, arguing that it devalues the votes in some states. It's not quite that--instead, it's that the Electoral College is actually designed to ensure broad geographic support rather than intense preferences in a few select states. I concede that "designed" may be a strong term, for some claim that it was not the outright intent of the presidential election system, but simply an indirect byproduct, but it has some support in founding documents.)

(UPDATE: these charts were updated with results as of Dec. 30.)