Episode 7: Can Online Voting Defeat the Broken Electoral College?

Predicting Our Future

In the 2016 U.S. presidential election, a little over a half of the voting age population cast their votes and the candidate who won the presidency lost the popular vote. Is the problem with low U.S. voter turnout due to culture or lack of accessibility? Without amending the U.S. Constitution, is there a way to use technology to improve voter turnout and overcome the effects of the Electoral College?

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Episode Excerpt

Every time I see a protest against Donald Trump, I wonder whether the protesters were there when progressives needed them most — namely, on Tuesday, November 8th, 2016. On the day of this last Presidential election, only 54.7% of eligible voters showed up to vote. Is it only now that people have seen Trump’s policies that they have begun to recognize the import of that election? Should we expect more people to show up to vote in the 2018 or 2020 elections? I would certainly hope so, but if history is any guide, we shouldn’t just expect an excited electorate to turn out in substantially greater numbers than they have in the recent past.

Scholars have been grappling for some time with why so few Americans show up to vote. Many argue that the Electoral College has the effect of rendering many votes in the United States meaningless, so people figure, ‘Why vote should I vote if my vote doesn’t count?’ Others suggest that if we made voting easier, we could increase turnout. In my new podcast series on the future of online voting, I set out to explore how to defeat the Electoral College and also how to make voting easier. Here’s what I found.

Getting Rid Of The Electoral College

The American Electoral College comes from Article 2 of the Constitution, which provides that each state shall elect a number of “electors” equal to the number of congressmen and senators from that state. We have a total of 538 electoral votes: 438 congressmen (that includes 3 from the District of Columbia) plus 100 senators.

It’s difficult to identify any redemptive aspect of the system today. The voting by electors, and not by the general populace, was designed as a safeguard to prevent an “unqualified” individual from taking the highest office in the nation. In the near term, I’m ruling out the possibility of abolishing the Electoral College. Because the Electoral College is a construct derived directly from the Constitution, its abolishment would require an amendment to the Constitution.

In order to pass a Constitutional amendment, you need to have a bill passed by 2/3rds of the members of House of Representatives and 2/3rds of the Senate, in addition to being ratified by 3/4ths of the state legislatures. To give you an idea how difficult it is to pass an amendment, the last amendment to the Constitution was passed in 1992. It required that any changes that Congress voted on to amend their own pay would not take effect until after the next election for members of Congress. When was this amendment first proposed? On September 25th, 1789. The last amendment that passed before this was the Twenty-sixth Amendment in 1971, which lowered the voting age to 18. Suffice it to say, it’s really hard to pass new amendments.

Eliminating The Electoral College Through State Legislation

There is one creative solution being implemented by some states that would have the effect of completely eliminating the power of the Electoral College without actually abolishing it. The formulation for this state legislation comes from John Koza, a former professor at Stanford and a computer scientist who drafted the original National Popular Vote Interstate Compact and is Chair for National Popular Vote.

John Koza: “Over the years, I followed the Electoral College and all of the strange things that happened, the near-misses, and of course, the 2000 election. And I also became aware of the fact that presidential campaigns were totally concentrated in a handful of battleground states so that the vast majority of Americans were left out of the presidential campaign. And those two thoughts came together with the idea that the states, since they have the exclusive control over the presidential elections, could change from our current winner-take-all system — which is what allows second-place candidates to become President and which causes three quarters of the states to be ignored . . . could be repealed by the state legislatures and replaced by a national popular vote for President.”

Me: “Can you explain mechanically what you envisioned and what this compact entails?”

John Koza: “The states have exclusive power to award their electoral votes under the Constitution and our compact is just the state law that repeals the existing winner-take-all law and says that, for example, California — which is one of the states that has passed it — would give its 55 electoral votes to the presidential candidate who gets the most popular votes in all 50 states. . . . And when we get enough states that have 270 electoral votes, which is the majority, which is enough to elect the President, then our law takes effect. And at that point, whoever gets the most popular votes in all 50 states will be guaranteed enough electoral votes to become President.”

In other words, if this law came into effect in California, and in a presidential election 90% of Californians voted for the Democratic candidate, but a majority of Americans voted for the Republican candidate, then California would award 100% of its electoral votes to the Republican candidate. I wondered whether such a pact would be constitutional.

John Koza: “The Supreme Court has ruled that the power to decide how to award electoral votes is an exclusive state power. . . . most of the opponents of the national popular vote concede our bill is constitutional. As to the question of whether Congress has oversight, since 1893, the Supreme Court has held that interstate compacts do not require congressional consent unless they threaten federal supremacy. . . . So based on current court precedents, this compact does not require congressional consent.”

To date, only 11 states have passed legislation supporting the pact, and when you add up all of their votes, they don’t represent a majority of electoral votes. So the legislation has not become effective anywhere. Not surprisingly, they are all states that consistently vote for Democrats for President: Maryland, New Jersey, Illinois, Hawaii, Washington, Massachusetts, the District of Columbia, Vermont, California, Rhode Island, and New York.

Defeating The Electoral College Through Increased Voter Turnout

So what are the other options to defeat the Electoral College and introduce a form of a participatory democracy where the popular vote will more likely correlate with the electoral vote? The efforts that seem to offer the greatest promise for change center around increasing voter turnout. Advocates working for increasing voter turnout recognize that there is nothing inherent in more people voting that guarantees that the winner of the presidential election will always reflect the expression of the national will, but they do believe (as do I) that increasing voter turnout will:

Diminish the likelihood that the outcome of the popular vote diverges from the electoral vote; and,
Over a much longer period of time, greater voter participation increases the likelihood that a national consensus might form around eliminating the Electoral College, whether through an amendment or other creative legislation (for example, the National Popular Vote Interstate Compact).
There is another hypothesis here: namely, that increasing the percentage of people who vote will favor Democrats. That’s because the demographic groups that have been least likely to vote in previous elections (minorities and young people) tend to favor Democrats. Therefore, if a higher overall percentage of people voted, the differential in the popular vote would likely favor the Democrats further, thereby increasing the likelihood that eventual electoral results would correlate with wider margins in the popular vote.

There are many ideas about how to increase voter turnout, including changing the day of voting from Tuesday to the weekend or increasing the number of polling stations. The idea I wanted to focus on specifically in this podcast series was the introduction of online voting, and whether allowing people to vote from their laptops would result in more people casting ballots.