A photo that depicted heroism to many circulated on social media immediately after the Jan. 6 riot at the U.S. Capitol. It showed two young Senate aides carrying a boxful of presidential electoral ballots — or certificates confirming electoral vote results in each state — in the Capitol building.
At first, it was believed that the aides were rescuing the ballots, and democracy itself, from rioters breaking into the Capitol. However, it was later learned that the photo was taken hours before the violence started, although Senate staffers did eventually secure the ballots that day.
But even if the ballots or certificates had been destroyed by rioters, safeguards were in place. Copies of the documents — known as Certificates of Ascertainment — had been sent to six locations, including the National Archives and Records Administrations, U.S. district courts, and the office of Senate president.
The certificates are a small but integral part of the Electoral College system of selecting the U.S. president every four years. In this system, each state is given a certain number of electoral votes that are equal to the number of members they have in the U.S. House of Representatives and Senate. Three electoral votes are given to Washington, D.C., which isn’t represented in Congress.
Ohio has 18 electoral votes, based on its 16 U.S. House members and two senators. In most states, including Ohio, if a presidential candidate wins the popular vote, that candidate is awarded all of the state’s electoral votes. The candidate who wins a majority of the total 538 electoral votes — at least 270 — becomes president.
The Electoral College was designed by the country’s founders and established in the U.S. Constitution. However, it’s been controversial from the start, and citizens today have a hard time understanding it. Some want to abolish the Electoral College and give the presidency to whichever candidate receives the most total votes across the country.
However, Jonathan Adler, a professor who teaches constitutional law at Case Western Reserve University in Cleveland, says the Electoral College has value. It reduces the possibility of election fraud and corruption because any scheme would have to succeed across several states and require much coordination.
“With the Electoral College, we focus on a few competitive or swing states, where there is more attention and less likelihood for irregularities that would affect the election results,” Adler says.
Conversely, the National Popular Vote Interstate Compact, formed in 2006, hopes to reform the election system so that only the nationwide popular vote counts.
Rebekah Warren, senior advisor with the compact, says the organization promotes three values that don’t exist in the current system: every vote should be equal, every voter should be relevant in every state, not just swing states; and the candidate with the most votes nationwide should win.
How it works
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Robert Alexander
When citizens vote for a president and vice president, they are actually not voting for the candidates but for a slate of “electors” who will do that for them. The number of electors in a slate is equal to the number of electoral votes in that state. Each elector has one vote for president.
Every political party, including Green and Libertarian, that has a presidential candidate on the ballot appoints its own slate-in-waiting. Whichever candidate wins the popular vote in a state, the slate of electors from that candidate’s party gets to vote in the Electoral College.
Thus, when Donald Trump won the popular vote last year in Ohio, the 18 Republican electors were invited to cast their presidential ballots in the Electoral College. Predictably, all 18 voted for Trump.
The Constitution places just three restrictions on who can serve as electors. They can’t be a member of Congress or hold federal office, and under the Fourteenth Amendment – ratified after the Civil War – electors can’t have “engaged in insurrection or rebellion against the United States, or given aid or comfort to its enemies.”
Other than that, each state can decide how it chooses electors. It can let citizens elect them or leave it up to the state legislature. In Ohio, as in several states, political parties select electors at their annual state conventions.
Robert Alexander — professor of political science and founding director of the Institute of Civics and Public Policy at Ohio Northern University in Ada and author of the 2019 book, Representation and the Electoral College — says prospective electors lobby for their positions at the party conventions. Sometimes big money donors are chosen, but often the jobs go to loyal and long-serving party members.
“I have found that a number of electors serve several times,” Alexander says. “They like the experience and run for the position every four years.”
After the presidential election, the winning slate of electors meet to cast their votes officially on the first Monday following the second Wednesday in December. Alexander says that provides enough time for boards of elections to certify their popular vote counts, weed out discrepancies, and settle any disputes.
In Ohio, electors usually meet in the Ohio Statehouse to vote. They sign six copies of the Certificates of Ascertainment after a ceremony featuring speeches, prayers, the Pledge of Allegiance and the singing of the national anthem. Then the electors return home, their sole duty completed.
The next step is for Congress to certify the election results from each state. That process experienced a hiccup this time around when some Republican Congress members objected to the election results.
Adler says Congress has little if any authority to question the Electoral College results — unless it’s not clear which candidate won the majority of electoral votes — but that hasn’t stopped Congress members from trying after the 2000, 2004, and 2016 elections.
After the 2004 election, in which President George W. Bush defeated Democrat John Kerry, electoral votes from Ohio were challenged by about 30 members of Congress. Like after the 2020 election, the objectors claimed voting machines were rigged or defective.
“There were people saying that Ohio was stolen in the 2004 election,” Adler says. “There were congressional investigations, books were published on it, and there was a report by House Judiciary Committee.
“The difference from 2020 election was that Kerry, who lost the election, never gave credence to the objections,” Adler says.
Usually, the winner of the Electoral College lines up with the winner of the nationwide popular vote, but five times that wasn’t the case, including in the 2000 election, when Bush defeated Al Gore, and the 2016 election, when Trump defeated Hillary Clinton.
It can happen because, even though the losing candidate might receive millions of more votes nationwide than the Electoral College winner, candidates are more limited in the number of electoral votes they capture — there’s only 538 of them. And if the popular vote loser wins a large state with lots of electoral votes, he or she can surge ahead in the race.
So why not just go with the nationwide popular vote?
A monstrous system
The nation’s founders and Constitution writers never believed the Electoral College was the ideal way to pick a president. It was a compromise.
“They looked at three major plans for electing the president,” Alexander says. “The Electoral College combined all three, like a Frankenstein’s monster.”
Some suggested that Congress pick the president. That idea was rejected because the founders didn’t want the president beholden to anyone in Congress, fearing it could lead to corruption.
A nationwide popular vote was considered, but the founders identified several problems, some unique to the 18th century, with that approach. First, mass communication didn’t exist. People in one part of the country, especially in rural areas, probably didn’t know much about presidential hopefuls in other regions. Candidates had no ability to organize national campaigns, so citizens lacked knowledge to choose a qualified person.
The founders were also concerned that population centers like large cities would have too much say-so over who is elected president, leaving the votes of citizens in rural areas irrelevant.
In addition, the founders feared that politically unsophisticated voters might fall for and elect a power-hungry tyrannical leader who would pander to them to win their votes.
So the founders came up with a system in which a limited number of knowledgeable, educated electors, chosen by voters in each state, would select a qualified person for the high office of president.
“You could vote for electors who shared your political views and priorities,” Adler says. “The elector would be more familiar with the character and abilities of presidential candidates than the population at large.”
In Federalist Paper No. 68, Alexander Hamilton wrote that because the Electoral College was a temporary body, it would have little time to hatch corrupt plots, and foreign governments were less likely to interfere in the presidential election.
A key factor was that political parties didn’t exist when the Electoral College was created. Electors would vote according to their conscience, not their party.
The founders also assumed that electors would be unable to settle on one presidential candidate, which under their system, would allow the House of Representatives to select the president. In fact, Alexander says the constitutional framers expected the House to choose the president 19 out of 20 times.
But the Electoral College as originally envisioned didn’t materialize. Alexander said the system as designed unraveled within the first few decades, largely due to the emergence of political parties. Electors started voting according to party instead of their individual beliefs. As a result, the field of candidates narrowed.
As the decades passed, most states allotted all of their electoral votes to their popular vote winners. The two exceptions today are Maine and Nebraska, where candidates win Congressional districts, not the entire state.
Both Adler and Alexander said they wouldn’t want to return to a system in which an elite group of electors choose the president.
No perfect method
Alexander says there have been nearly 800 attempts to reform or abolish the Electoral College. In the late 1960s, opinion polls showed that 80% of the public wanted to scrap it.
After years of researching the Electoral College, Alexander has found that it’s not working as it should. It can discourage voter turnout in states like California and Texas that lean heavily toward one political party. Why would Republicans show up to the polls in California when that state always goes to Democrats? The same goes for Democrats in Texas, a Republican state.
Also, the Electoral College minimizes the importance of voters living in non-battleground states.
“There’s a reason the candidates spent a lot of time talking about fracking in this past election, because of concern about that issue in swing states of Michigan, Ohio, and Pennsylvania,” Alexander says.
Another significant problem with the Electoral College is that voters simply don’t understand it, Alexander says.
Adler says if the nation had the chance to invent a new method of electing the president, with the benefit of hindsight and experience, it would probably come up with something different. Nevertheless, he doesn’t recommend any dramatic change.
“There’s no perfect system,” Adler say. “We have a system that works fairly well, and any change would have unintended and unforeseen consequences.”
One possible reform Adler would consider is awarding electoral votes by Congressional district, like in Maine and Nebraska.
“If every state did that, it would align Electoral College results more with popular vote,” Adler says. “Ohio, Michigan, and Florida, the competitive states, would be less important for candidate to win, because their electoral votes would be divided up.”
Alexander believes that some form of popular vote system would provide more legitimacy to whichever candidate wins. He favors ranked-choice voting, in which citizens would mark their top two presidential choices on the ballot. If the first candidate didn’t finish among the top two vote-getters nationwide, the citizen’s vote would go to the second choice.
“It would ensure that whoever wins gets the majority of votes, and would give people more of a feeling that their vote counted,” Alexander says.
An interstate compact
The National Popular Vote Interstate Compact wants to switch to a nationwide popular vote by working within the existing system, not through a Constitutional amendment. If enough states pass laws that give all of their electoral votes to the candidate who wins the nationwide popular vote – instead of the popular vote winner in that state – then the Electoral College, although still in place, would in effect would be gutted.
To make it happen, the compact needs states with at least 270 electoral votes among them to join the effort. So far, the compact has secured 196 electoral votes from 16 jurisdictions and needs just 74 more electoral votes. Warren, the compact’s senior adviser, believes it can be done in time for the 2024 presidential election.
Warren says if a popular vote system had been in place for the 2020 election, everyone would have known on election night that Joe Biden had won, because he was leading by several million votes nationwide. Instead, close races in key states kept the election results a mystery for several days.
Alexander says Ohio officials have discussed joining the popular vote compact but there’s been no push for it here. He says if the compact were adopted, it would almost certainly be challenged in the courts as unconstitutional. Another problem is that states could join the compact, leave, then join again, causing havoc in the elections.
“It’s a little too flimsy in my opinion,” Alexander says. “I wouldn’t want to replace one system that people see as illegitimate with another system people see as illegitimate.”
However, Warren says the compact comes with withdrawal stipulations. States can’t leave the compact less than six months before an election, so voters would know the rules well in advance.
As for whether the system is constitutional, Warren says it’s perfectly so. The compact taps two powers the Constitution gives states: the authority to choose electors however they decide and the ability to form compacts among states.
Warren says that throughout American history, changes to the election system in many cases started in the streets. By the time Congress voted to give women the right to vote, more than half the states had already done so.
“Nothing in what we are doing prohibits Congress from making a change or eliminating the Electoral College if they choose to,” Warren says.
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The views expressed herein do not necessarily represent those of the Ohio State Bar Foundation.