I. Voting Options Considered by the Framers of the Constitution
The Constitutional Convention met in Philadelphia from May to September 1787 to write the document that would lay the foundation for the US government. During this time, the framers of the US Constitution spent 22 days debating ways to select the nation’s chief executive, the president of the United States.
Many delegates to the Convention favored having Congress select the president, an idea that was tentatively approved four times but ultimately rejected for fear that the national legislature was more vulnerable to cabal, intrigue, faction or corruption. People wanted to ensure more separation of power between the legislative and executive branches. Some delegates advocated for a nationwide popular vote, but most felt that it would be too difficult for people all over the country to make informed decisions about candidates. Proposals to let state governors or state legislatures directly choose the president were also rejected.
Those at the Constitutional Convention held 30 votes before coming to a compromise with what later became known as the Electoral College, the system that has been in use for all 59 US presidential elections from 1789 through 2020. After close elections in 1876, 1880 and 1884, Congress enacted the Electoral Count Act of 1887, thereby formally establishing a procedure for counting and disputing election votes.
II. Legislation to Reform the Existing Electoral College
Senators and Representatives from both political parties introduced legislation in 2022 that would reform the existing Electoral Count Act of 1887. In July 2022, U.S. Senators Susan Collins (R-ME) and Joe Manchin (D-WV) announced the Electoral Count Reform and Presidential Transition Improvement Act “to ensure that electoral votes tallied by Congress accurately reflect each state’s vote for President.” The intention is to update what lawmakers call “ambiguous procedures of the 19th-century law” with clear directives on who can submit a state’s electors and the role of the vice president in presiding over the electoral count. The bill also specifies that state legislatures cannot override the state’s popular vote and provides guidelines on the transfer of power to a new president and vice president taking office.
In September 2022, U.S. Congressmen Josh Gottheimer (D-NJ) and Fred Upton (R-MI) introduced a companion bill, Electoral Count Reform and Presidential Transition Improvement Act, in the House of Representatives that mirrors the text of the bill introduced in the Senate. Media reports stated that the legislation was a response to efforts to overturn the results of the 2020 presidential election.
On December 23, 2022, the Electoral Count Reform and Presidential Transition Improvement Act of 2022 was signed into law by President Biden, as part of a year-end omnibus appropriations bill. Prior to signing, the Act had been approved by the Senate 68-29 and by the House 225-201.
While the Act “in no way changed the Electoral College,” according to the National Conference of State Legislatures, it did change the procedure for counting electoral votes previously outlined in the Electoral Count Act of 1887. Some of those changes included clarifying the vice president’s role as ceremonial with no power to alter the electoral vote count, raising the objection threshold at the joint session of Congress where the electoral votes are counted from one member of each house to one-fifth of the members of both houses, as well as ensuring a “judicial remedy if a state government unlawfully refuses to certify election results,” and preventing “state governments from changing the rules after an election has been held.”
III. Summary of Voting Options Available Today
Article II, Section 1 of the US Constitution left it to the states to determine how each would appoint its electors (a power that has been upheld by Supreme Court rulings):
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector…
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”
In the 2020 US presidential election, 48 states used the winner-take-all method of allocating electoral votes to the winner of the statewide popular vote (option 1, below), while Maine and Nebraska awarded two electoral votes to the statewide winner and the rest to the winner of each congressional district (option 2, below).
Since the Electoral College is enshrined in the Constitution, abolishing it in favor of a nationwide direct popular vote (option 3, below) would require a constitutional amendment.
However, there are options for altering the Electoral College without needing a constitutional amendment. The National Popular Vote Interstate Compact is an agreement among states to award their electoral votes to the nationwide popular vote winner (option 4, below). Experts have also suggested proportional plans that would allocate electoral votes based on what percentage of the statewide popular votes a candidate receives. (option 5, below).
In McPherson v. Blacker, 146 U.S. 1 (1892), the Supreme Court noted that the Constitution did not provide for a popular vote to appoint electors, but rather let the state legislatures determine the manner of choosing electors.
In early US history, about half of the state legislatures appointed electors rather than holding popular elections (nine of 15 states in 1792, for example). In theory, any state could change its election rules to have the state legislature appoint electors if the change were made before an election took place. Experts believe that voters would be outraged to lose their ability to vote in presidential elections. This is not a voting method being recommended or considered by anyone, and thus it is not examined in detail below.
IV. Pros and Cons of Five Different Voting Options
Below are the pros and cons of the five options for voting for US president.
Option 1: Winner-Take-All
Electoral votes are allocated in each state based on the winner of the statewide popular vote; this is the method currently used in 48 states (all but Maine and Nebraska) and Washington, DC.
|1. The winner-take-all Electoral College system can give the winner legitimacy and a mandate for leadership with a big electoral vote victory even if the popular vote was close. Ronald Reagan, for example, won 51% of the popular vote in 1980 but carried 91% of the electoral votes (489 to 49 over Carter).
|1. The winner-take-all system gives all electoral votes to a candidate whether they won by five votes or 5 million votes, disregarding the idea that every vote counts. It is possible to win the presidency despite losing the popular vote, which happened in 1824, 1876, 1888, 2000, and 2016.
|2. The framers of the Constitution let states decide how to appoint their electors, and after experimenting with different options, all but two states have determined that winner-take-all allocation protects a state’s unified voice in the presidential election.
|2. Presidential campaigns focus on battleground states to increase electoral vote totals, ignoring voters in states that always go to the same party (e.g., California for Democrats or Oklahoma for Republicans).
|3. The government of the United States was designed to share power among the federal and state governments. The winner-take-all Electoral College promotes that principle of federalism by representing the will of the people at the state level, acknowledging that the 50 states and DC come together to form the United States.
|3. Even when the popular vote outcome is clear on election night, close elections generate recounts, lawsuits, and uncertainty over the results in swing states because of the battle over electoral votes. A delay in the results breeds uncertainty and distrust over the legitimacy of the vote.
|4. This system ensures that the winner was preferred by a majority of voters across multiple states, protecting the interests of voters in small states from being drowned out by big states.
|4. Every state is guaranteed a minimum of three electoral votes, giving the smallest states a disproportionate impact on the presidential election. See State Elector Power.
|5. This method is more fair than the district plan used in Maine and Nebraska because it prevents the ruling parties from gerrymandering the state’s congressional districts to gain an advantage in the electoral votes, an argument made by Nebraska State Sen. Julie Slama in her bill proposing the state return to the winner-take-all system.
|5. This system makes it difficult for new political parties or independent candidates to challenge the existing two-party system, which limits the options of voters and entrenches the power of Republicans and Democrats, regardless of how well they serve the people.
Option 2: District Plan
Each state gives two electoral votes to the statewide popular vote winner and an electoral vote to the winner of each congressional district in the state; Maine and Nebraska currently use this method.
|1. The district plan balances the will of the majority by awarding two votes to the statewide winner while also reflecting the preference of voters who may not agree with the overall majority, which could lead to higher voter turnout. In California, for example, voters in conservative areas (about 1/4 of the state’s congressional districts) would finally have a chance to impact the presidential election.
|1. Using the district plan for presidential elections would further incentivize the geographical manipulation of voting districts to achieve an unfair partisan advantage (gerrymandering). After Obama won a Nebraska district in 2008, state Republicans redrew the districts so that he lost that electoral vote in 2012. Just 24 of 435 congressional districts across the country (5%) were considered up for grabs in the 2016 election, while the rest were solidified for either Democrats or Republicans.
|2. States currently considered to be a “lock” for one of the two major parties would be back in play. Democratic candidates would have a chance to grab electoral votes in more liberal counties in Texas, for example, if the state’s entire block of 38 electoral votes were no longer allocated as “winner-take-all.” The same would be true for Republican candidates, who could pick up votes in conservative areas of New York.
|2. The district plan is even more likely to produce a winner who lost the popular vote. In the 2000 election, George W. Bush defeated Al Gore 271 to 266 despite losing the popular vote by more than 500,000 votes. Under the district plan, Bush would have had an electoral victory of 288 to 250. In 2012, Mitt Romney would have won under this system despite losing the popular vote by 5 million.
|3. Candidates are more likely to campaign across many regions rather than focusing only on populated urban areas as they seek to appeal to a wider swath of congressional districts, forcing them to account for more people in their policy plans than they would in the winner-take-all system.
|3. Instead of a focus on swing states, this system would lead to a focus on “swing districts,” which represent a more narrow segment of voters: only 8.7% of Americans live in swing districts, while swing states account for 15.5% of Americans. Elections would be contested on the extreme margins of the US population.
|4. The district plan retains the intentions that the framers of the Constitution expressed in creating the Electoral College while increasing the weight of the popular vote at the state level. Electors are better able to represent the will of the people who elected them by casting electoral votes based on district results rather than statewide results.
|4. In states with at least five districts and seven electoral votes, it becomes possible for a candidate to win the statewide popular vote but still get fewer electoral votes than their opponent. In these cases, the majority vote of the state would not be reflected in the state’s electoral votes. There are 29 states with seven or more electoral votes.
|5. The district plan has an advantage over the proportional system of allocating electoral votes because every congressional district is correlated with an electoral vote, so there is no dispute over how to award the electoral votes to the district winners. Each state gets two electoral votes, just as they get two senators, plus a number of electoral votes equal to their seats in the House.
|5. Having electoral votes up for grabs by district would make it possible for third-party candidates to take enough votes to prevent an outright winner, forcing more contingent elections decided in Congress or encouraging secret deals behind the scenes, either of which lessens the voice of the voters.
Option 3: Direct Popular Vote
Replace the Electoral College with a nationwide direct popular vote, which would require a constitutional amendment. Some proposals call for a simple majority vote while others would use a plurality, perhaps at a threshold of 40% of the vote, to determine the winner.
|1. Every vote would count toward the election of the president, including voters who currently get overruled by the majority in their states, such as Democrats in Texas or Republicans in New York. This would make the presidential election truly democratic and give all votes equal weight.
|1. The idea of direct popular vote was considered and rejected by the Founding Fathers when writing the US Constitution. Overriding the constitutional presidential election procedure would remove the safeguards put in place, including the ability of members of Congress to challenge the results.
|2. A nationwide popular vote would result in the people directly electing the president and vice president rather than the current system of people voting for electors who are not bound by federal law to vote as pledged. The winners would take office as soon as the vote was certified because there would be no electors to meet or electoral vote to certify in Congress.
|2. A nationwide popular vote determining the outcome of the presidential election would put all states at risk of voter fraud in other states. Since states run and oversee their own elections, there would be a lack of accountability for the results they submit. Similarly, efforts to disenfranchise voters in some states would impact all voters more when every single vote counts toward the outcome.
|3. This system would correct the imbalance of state elector power that gives voters in small states more power in the Electoral College due to having fewer people per electoral vote. Candidates would also have an incentive to campaign in all states instead of focusing on a handful of swing states.
|3. A nationwide popular vote could lead to more confusion and demands for recounts, which would be more expensive and complicated to handle in all 50 states, all of which have their own rules. The Electoral College, by contrast, generally requires recounts in only a handful of swing states.
|4. A popular vote determining the winner would avoid the undesirable outcome of a candidate with fewer popular votes becoming president, which has happened five times in history. There would be no question that the majority of people across the country supported the nationwide popular vote winner. A September 2020 Gallup poll found that 61% of Americans support switching to a popular vote (89% of Democrats, 68% of Independents, and 23% of Republicans are in favor of the idea).
|4. A direct popular vote raises concerns of how to settle elections in which no candidate receives a plurality or majority of the vote. Either an expensive and time-consuming runoff election would be held or the outcome could go to Congress, creating incentives for the cabals, factions, and corruption that the framers of the Constitution sought to avoid.
|5. The reason why a direct popular vote was rejected by the framers of the Constitution no longer applies. Candidates can now easily travel the country to meet voters, and the framers could never have envisioned the wide range of technology that is now available for voters to learn about the candidates.
|5. Campaigning for the popular vote would require more ads, staff, and travel. That would bring even more special interest money into already overinflated campaign spending, which exceeded $6.6 billion in the 2020 presidential election. Big donors would gain even more influence in politics.
Option 4: National Popular Vote Interstate Compact (NPV)
NPV is a formal agreement among states to give their electoral votes to the candidate who wins the most nationwide popular votes. Signed by 15 states and Washington, DC, representing a total of 196 electoral votes, as of July 2020; would take effect once enough states signed on to reach at least 270 electoral votes, the number needed to win the presidency. If all 50 states joined, the electoral vote would be unanimous for the candidate who won the popular vote.
|1. The NPV would let the direct vote of the people determine the winner of the presidential election without going through the arduous process of enacting a constitutional amendment to abolish the Electoral College.
|1. The NPV would subvert the intentions of the framers of the Constitution, who specifically designed the Electoral College to protect the interests of smaller states so that more populous states would not dominate the election of the president.
|2. Tying the electoral votes to the outcome of the nationwide popular vote would ensure that a president is never again elected without having won the most votes nationwide. Ranked-choice voting (voting for multiple candidates in order of preference) could provide an instant runoff to determine the winner if no candidate gets a majority of the votes.
|2. A state participating in the NPV would be forced to give its electoral votes to the nationwide popular vote winner even if the candidate lost that particular state, overriding the will of the residents of that state.
|3. Since the NPV will only take effect once enough states join to cover at least 270 electoral votes, there would never be a contingent election decided by the House of Representatives, which is what happens under the current system if no candidate reaches 270.
|3. Instead of recounting the votes in a limited number of states, a close nationwide vote could trigger a national recount of more than 130 million votes. Each state runs its own election with varying rules, potentially leading to a complicated and long period of time without knowing the outcome of the election.
|4. In the 2008 election, over 98% of campaign spending in the last two months of the election focused on 15 states comprising just one-third of the US population. Making an Electoral College victory contingent on winning the nationwide popular vote would lead to candidates campaigning to the entire country and developing policy platforms that appeal to more than just swing states.
|4. As with a direct popular vote, basing the electoral votes on the popular vote will lead to more campaigning in all states. Presidential campaigns already start forming two years before the election; the different strategy needed to secure the nationwide popular vote could start that campaign process even earlier, leading to voter burnout and depressing turnout when the election finally comes.
|5. The framers of the Constitution did not anticipate the rise of political parties, which now play such a big role in politics that they nominate the electors. Rather than exercising their best judgment, members of the Electoral College are expected to vote for the candidate of the party that nominated them, and therefore electors are no longer needed.
|5. Legal scholars question whether an interstate compact like NPV would withstand litigation over its legitimacy in the absence of Congressional approval and whether the compact could even enforce a rule forbidding signatory states from withdrawing after July 20 in an election year. Regardless of the election outcome, there would likely be a protracted legal battle over the results.
Option 5: Whole Number Proportional
Automatically allocate electors based on the proportion of popular votes received in each state, creating the possibility of a state awarding electoral votes to more than one candidate.
|1. This plan would maintain the positive aspects of having the Electoral College while keeping the election outcome closer in line with the popular vote, since the proportion of electoral votes would be determined by the proportion of popular votes received.
|1. Similar to the district method, this manner of allocating electoral votes creates an opportunity for third parties to get in the race to prevent an outright winner, giving Congress control over who becomes president and vice president. In 2000, for example, Nader would have received 13 electoral votes, preventing Bush from reaching 270 and sending the election to Congress.
|2. Allocating electoral votes proportionally would have all of the pros of the district plan without the possibility of gerrymandering by state officials. Candidates would be encouraged to campaign to more states in which they previously would not have had a shot at electoral votes.
|2. Matching whole numbers of electoral votes to fractional popular votes would lead to lawsuits and partisan fights. Donald Trump won Arizona’s 11 electors in 2016; under the proportional system, his 48% of the vote and Hillary Clinton’s 45% of the vote would have entitled each of them to five electoral votes, leaving one vote unassigned. In total, 18 states would have faced the issue of how to allocate their last electoral vote fairly.
|3. Proportional plans ensure that every vote counts, which is likely to increase voter turnout. Voters who are currently ignored in the winner-take-all system would matter again, giving a voice to the voters who do not agree with the majority where they live.
|3. Tiny differences in the popular vote could impact the allocation of an electoral vote in close elections. Spread out over the 50 states and DC, this would lead to more contentious recounts and uncertainty over the election results.
|4. Third-party candidates would be more likely to have a shot at winning electoral votes, providing more options for voters who are unhappy with the current two-party system. National policies would evolve to better represent the interests of more people.
|4. Confusion over how the electors are allocated in whole numbers when popular votes have percentages could undermine public confidence in the fairness of presidential elections. Since states determine how to run their own elections, rules for rounding to determine electoral vote allocation could vary across the country.
|5. This method has the benefit of maintaining the Electoral College, so no constitutional amendment is necessary to implement the change. Elections experts speculate this would be a more popular system than winner-take-all because voters can more easily see how their votes count toward electing the president.
|5. A state splitting its electoral votes by proportion of the popular vote would be diluting its impact on determining the winner of the presidency; states are reflecting the will of the majority by maintaining the winner-take-all method.
(Note: Electoral votes could be awarded as fractions in a proportional system, but this would eliminate the office of the elector that is enshrined in the Constitution. Less research is available on the concept, so the pros and cons of fractional proportion are not explored here.)
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