Article 2 of the Constitution says presidents are voted on by electors (it doesn’t mention the word college) with each state having a number equal to its U.S. senators and representatives. While representatives are allocated among the states proportional by population, senators are not. Every state gets two. So Wyoming has 0.2 percent of the nation’s voting-eligible population but almost 0.6 percent of the Electoral College. And since the number of electors is limited to 538, some states get less proportionately.
Adding to this, most states have an all-or-nothing approach to the Electoral College. A candidate can win a state by just a handful of votes but get all the electors. That happened in 2000, when George W. Bush, after much dispute, won Florida by 537 votes out of about 6 million and got all 27 electoral votes. He won the presidential election but lost the national popular vote that year.
That election led some states to sign a compact promising to give their electoral votes to the national popular vote winner. But that compact would go into effect only if and when states with the 270 majority of electoral votes signed on. So far nine states with 132 electoral votes have signed, all predominantly Democratic states.
Because of the 2000 election, conservatives and Republicans tend to feel that changing the Electoral College would hurt them, George Mason’s McDonald said, and after their big victories in 2010, the popular vote compact movement stalled. But that analysis may not necessarily be true, he added. McDonald said before recent opinion polls started to break for Obama there seemed to be a possibility that he could win the electoral vote and lose the popular vote because of weak turnout — but still enough to win — in traditionally Democratic states like New York and California.
Former Stanford University computer scientist John Koza, who heads National Popular Vote, which is behind the electoral reform compact, said Democrat John Kerry would have won the Electoral College in 2004 while Republican Bush won the popular vote, if only 60,000 Bush votes in Ohio had changed to Kerry votes.
History shows that candidates have won the presidency but not the popular vote four times, and in each case it was the Democrat who got the most votes but lost the presidency: 1824, 1876, 1888 and 2000.
The Associated Press analysis suggests that in this year’s election, the current system seems to benefit Romney. The AP re-apportioned electoral votes based on voting-eligible population and not congressional delegations, so that, for example, Wyoming and the District of Columbia would have only one elector instead of three, and California would have 58 instead of 55.
Based on polling, states strongly in the Romney camp have 191 electoral votes in the current system but would have only 178 if the electoral votes were allocated based on voting-eligible population. Based on similar polling, Obama would benefit by about five electoral votes if electors were apportioned by that population. The nine battleground states would gain even more sway, jumping from 110 electoral votes to 118.
That would compound the perceived problem of a shrinking number of battleground states being all that mattered in the election, leaving the overwhelming majority of states standing around as ‘‘spectator states,’’ Koza said.
John McGinnis, a professor of constitutional law at Northwestern University, defends the current Electoral College, arguing that while the mathematics of electoral proportionate calculations is correct, the conclusion that it over-represents small states is not. Larger states still have more sway because they have more electoral votes, he said.
Further, the historical agreement to give each state two senators regardless of their population and to base electoral votes on congressional delegation rather than population ‘‘was an essential compromise’’ when framers were drafting the Constitution, McGinnis said. Without that compromise, there might not have been a Constitution or nation, he said.
But Finkelman said his reading of history is that the compromise wasn’t about power between small and large states as much as it was about power of slave-holding states. He said James Madison wanted direct popular election of the president, but because African-American slaves wouldn’t count, that would give more power to the North. So the framers came up with a compromise to count each slave as 3/5ths of a person for representation in Congress and presidential elections, he said.Continued...