In every presidential election, Americans vote in hopes of electing the nation’s next leader. However, the idea that 538 electors—not 330 million American citizens—ultimately decide who becomes President remains controversial. Despite growing opposition, the Electoral College has survived numerous attempts at reform.
Pre-election predictions predicted a tight contest between Trump and Harris. Still, the final result of the U.S. presidential election defied these predictions, with Trump comfortably winning both the popular vote and the Electoral College.
Trump secured the largest popular vote margin of victory for any Republican candidate in 36 years, winning 312 Electoral College votes, while Harris received 226 votes, resulting in a majority mark of 270.
Since the 18th century, there has been intense discussion about the Electoral College’s necessity and fairness. A September Pew Research Center report shows that over 60% of Americans support abolishing it. So why does it still exist?
To gain a deeper understanding of this institution, the Defender spoke with Martin Levy, a law expert and professor at Thurgood Marshall School of Law, to discuss the complexities of the Electoral College, its historical roots, and ongoing debates about reform.
Defender: Where did the idea of the Electoral College come from, and why was it created?
Martin Levy: The Electoral College is a product of the debates at the 1787 Philadelphia Convention. The framers were deeply divided on democracy. On one side, you had the Federalists, who were wary of pure majority rule, and on the other, the Jeffersonian Republicans, who were more in favor of democratic governance. The compromise they reached is reflected in our system today.
The Federalists feared that the majority might not always be well-informed, even though, at that time, voting rights were limited to White male property owners. This fear of direct majority rule influenced the design of our government. For example, the House of Representatives is democratic in nature, but the Senate, where every state gets equal representation, is less so. As a byproduct of these debates, the presidency became linked to the Electoral College—a mix of democratic input and state representation.
Additionally, much of the Constitution was influenced by the need to balance power between the Northern and Southern states, especially regarding slavery. At the time, the North and South had similar populations, but Southern states, where slavery was prevalent, wanted additional leverage. That’s why the infamous “Three-Fifths Compromise” allowed Southern states to count enslaved people as part of their population for purposes of representation, giving them more electoral power.
Defender: How has the role of the Electoral College evolved over time?
Levy: The Constitution specifies that the manner of the election would be set forth by Congress, giving the federal government power to control the process. In 1887, after Reconstruction, the first such act was passed. It was very general and subject to interpretation.
In the modern era, we’ve seen significant changes, especially beginning with George W. Bush in 2000. He lost the popular vote but won the presidency through the Electoral College following a Supreme Court decision. The same happened with Donald Trump’s election in 2016 — he lost the popular vote but won through the Electoral College.
The 2020 election led to the first significant statutory reform since 1887. In 2022, Congress passed a statute in response to Trump’s challenges after the 2020 election. This law clarified how votes should be tabulated, specified the timeline for electoral procedures (the first Tuesday after the second Wednesday in December), and addressed the Vice President’s role in the Electoral College. The new statute states that the Vice President’s role is “solely ministerial,” meaning they have no power to adjudicate or resolve disputes about the validity of electors or their votes.
Moreover, the law now requires that any objections to the counting of electoral votes must be signed by at least one-fifth of the Senators and one-fifth of the House members, as opposed to just one member previously. This is a significant change in response to the issues raised by Trump after the 2020 election.
Defender: Can you explain how the Electoral College functions today, from election day to casting electoral votes?
Levy: That is largely governed by statute. Congress has the constitutional responsibility for enacting laws that determine how the process works. The timeline starts on election day. The critical day is the first Tuesday after the second Wednesday in December, which is when the electors meet and cast their votes. Each state governor certifies the selection of electors, and the electors meet in their respective states to cast their votes for president and vice president. These votes are sent to the president of the Senate, who, by law, is the sitting vice president of the United States.
The actual tabulation of the votes takes place on January 6th during a joint session of Congress, presided over by the vice president. If no candidate receives a majority of electoral votes, the decision goes to the House of Representatives, where each state delegation casts one vote to determine the winner. However, it’s important to note that recent legislative reforms — specifically, the Electoral Count Reform Act of 2022 — have clarified and streamlined aspects of the process, including reducing the potential for objections and establishing clearer guidelines for the role of the vice president in counting electoral votes. These reforms were enacted to address issues raised in the aftermath of the 2020 election and to ensure the process is carried out more transparently and efficiently.
Defender: Critics argue that the Electoral College disproportionately influences smaller or swing states. How do you respond to that critique? Is it a fair assessment of the system?
Levy: I think it’s a fair critique, and it’s connected to the origins of the Electoral College, which I mentioned earlier. The system was designed to limit majoritarian rule, particularly because the South feared that a northern majority would challenge slavery. The Electoral College gave states equal representation, regardless of population, and the Three-Fifths Compromise inflated the value of a white Southerner’s vote compared to that of a citizen in the North. So, yes, the system gives smaller states or swing states disproportionate influence, which was part of its original purpose.
Defender: What potential reforms to the Electoral College have been proposed over the years? Why have these ideas failed to gain traction?
Levy: The major reform proposal is to elect the president by a popular majority and do away with the Electoral College entirely. Many people argue for this because, as we’ve seen, a candidate can win the presidency without winning the popular vote. However, such a reform would require a constitutional amendment, which demands a two-thirds vote in Congress and approval by a majority of the states. This makes it a difficult process.
The politics also play a role. If one party benefits from the Electoral College system, they’re unlikely to support changing it. In recent history, Republicans have benefited more from the Electoral College, as we’ve had more Republican presidents elected without a majority of the popular vote. So, they might see it as a political advantage and resist reform. This makes it unlikely that we’ll see a major change to the Electoral College system anytime soon.
Defender: Why has the Electoral College remained in place for so long despite frequent calls for reform?
Levy: As I mentioned earlier, the difficulty lies in the amendment process. The party that benefits from the Electoral College will be reluctant to get rid of it. And without overwhelming public support pushing Congress to act, it’s hard to get the two-thirds vote necessary to amend the Constitution. So, unless there’s a political agreement across the board, it’s unlikely we’ll see the Electoral College abolished or significantly reformed.
