Law expert Kermit Roosevelt on the Electoral College and why America uses it

Shape of the map of the U.S. comprised of small question marks.

Americans are anxiously waiting for the final votes to be counted from a tight election night to determine whether President Donald Trump or former Vice President Joseph Biden will be in the White House come January. 

It all comes down to how many electoral votes each presidential candidate receives. But how exactly does the Electoral College work, and why does America use that system to pick the president rather than the popular vote?

Penn Today spoke to Kermit Roosevelt, professor at the University of Pennsylvania Carey Law School, whose expertise includes constitutional law and conflict of laws, to get his take on the topic.

What happens when the Electoral College meets on Dec. 14?

When the Electoral College meets on Dec. 14, they vote. It’s not a single meeting; they meet in their respective states, in part to prevent them from deliberating and exercising independent choice as a body.

Do electors ever not vote for the state’s choice? 

Electors who do not vote for the state’s choice are called faithless electors because they’ve broken their pledge to vote for a particular candidate. It happens rarely because electors are generally very politically loyal; that’s one of the reasons they’re chosen. In each state, there are electors pledged to each candidate on the ballot, and the individual voters are technically voting for those electors, so you end up with Republican or Democratic electors; it’s not as if there’s one set of electors who are supposed to take instruction from the voters.

In modern history, it happened either by error or because an elector wanted to make a political statement without affecting the result until 2016, when there was a real attempt to get electors to choose Clinton, because she won the popular vote, or someone else so that the House of Representatives would end up deciding the election and could choose a Republican other than Trump.

It’s possible, though seeming less likely, that Biden could end up with exactly 270 electoral votes, which would make this a nail-biter, but I don’t think you’d see a faithless elector in that case.

Why was the Electoral College system started to begin with?

The Electoral College came about mostly because the drafters of the Constitution couldn’t come up with anything better. It was settled on late in the process, and it built on structures already approved, notoriously including the Three-Fifths Compromise.

The framers considered having Congress select the president, but they decided that would make the president insufficiently independent. And they considered a popular vote, but they rejected that for three main reasons. First, they thought that individual voters might not be sufficiently well-informed. If you had regional candidates, ordinary voters in one part of the country might not know enough about candidates from other areas.

Second, they wanted to account for slaves. In a popular vote, slaves (who, of course, couldn’t vote) would have no effect on the outcome. With electoral votes allocated based on the number of representatives plus senators, slave states got extra power because they got representatives based on their free population plus three-fifths of their enslaved population. So, it tilted the process in their favor.

Third, and related, with a popular vote states would face pressure to expand their franchise. If, say, Virginia decided to allow women to vote, it would double the number of Virginia votes and give itself a greater voice in the process. Then other states might feel pressure to follow suit to keep up. The framers did not want that incentive to loosen voting restrictions.

Has there ever been a tie of Electoral College votes? What happens in that event?

There has never been a tie in the Electoral College. If there is, the House of Representatives decides the election, with each state delegation having one vote.

What is the most important thing for American voters to know right now about this topic?

The Electoral College is not a carefully designed feature of the Constitution. It’s a last-minute, thrown-together solution to several problems that don’t exist anymore (lack of information, slavery, voting rights for women), and it chose bad solutions (reducing pressure to give women the vote, empowering slave states). It’s fundamentally contrary to the idea that each American is equal and everyone’s vote should have equal weight. We should have a national popular vote system, which we could reach without a constitutional amendment if enough states joined the national popular vote compact and agreed to award their electors to the winner of the national popular vote.

Trump said at his early morning news conference Nov. 4 that he is ready to take the results to the U.S. Supreme Court before all votes are counted. Is this realistic? 

Trump’s attempt to delegitimize the election and the process of counting valid votes is appalling but not surprising. He told us that this was his strategy, and it’s of a piece with his refusal to accept the legitimacy of any part of our political system that stands in his way. That is frighteningly anti-democratic and should give pause to any American who believes in our system of self-government. Election litigation could certainly end up in the Supreme Court, though.

How would the vote results legally wind up before the Supreme Court?

There would have to be some theory that mail-in votes were invalid. There is absolutely no requirement that counting end before the state deadlines, and votes have always been counted past Election Day. There are arguments, some of which have already been floated and rejected, that various steps states took—either on their own or because of state judicial decisions, to accommodate voters’ concerns about coronavirus—violate the constitutional provision that states award their electoral votes in the manner that the state legislature directs. I think we will see litigation about this, unless Biden pulls away far enough that it would be obviously futile. But I don’t expect it to succeed.

Any last takeaways from election night? Final thoughts? 

America is moving left based on demographics. Young people are more liberal than older people, and the white percentage of the population is decreasing, but the flip hasn’t happened yet. Democrats were hoping for a broad repudiation of Trump, and they didn’t get that.

America remains deeply divided. I hope that the parties will find a way to move forward to confront the very serious challenges facing us.