There are at present a lot of opinion pieces and one very scary Atlantic piece swarming about to terrify the hell out of voters this election. Most of them have to do with the Electoral College. Now, I get it. Horror is most effective when you’re dealing with something that is a.) unknown and b.) out of your control. So it does seem for a lot of people like a fun little way to terrify the bejeebus out of voters. But my own personal fear is that people will believe in the inevitability of this cosmic eldritch horror known as “Electhorhal Chtolletght,” not go to the polls and thereby allow this ancient dead one to rise again.
I’ve explained this in detail and in humour here, and here. So if you want a super in depth but also generalized explanation of it go there. I’m going to tell you for this particular Halloween why you shouldn’t be afraid of it. Well, you should. But not as much as certain Atlantic pieces might imply, Barton.
So yeah, the Electoral College is not great. My personal feeling on it is that it outgrew its usefulness when political parties formed. And it’s always arguably been an instrument of political manipulation in one form or another so while I cognitively understand why it found its way into the Constitution, I really wish it hadn’t.
But to really shorthand it Electoral College votes are allocated to each state by adding together the number of representatives for that state plus its two Senators. So all states (and D.C.) get at minimum 3 votes. Then there’s this whole algorithm thing for how relative population increases at census years assign you more or fewer seats in the House and therefore raise or lower your state’s Electoral College votes, but we’ll just skate past that for now.
Each Party — because this is married to the two-Party system and no, I am not getting into it right now — in each state selects their Electors and … this is where things get a little bonkers.
So, most states and in fact I believe all at the moment have a system and have in fact legislated a system where they will assign which set of Electors cast their vote on December 14th, (again, even the date’s complicated but that’s where it falls this year) based on how their general election goes. That is there is a law on the books in each of these states saying that if the state’s voters vote majority for a Republican Presidential candidate then the Republican Electors cast their votes and if the state’s voters vote majority for a Democratic Presidential candidate then the Democratic Electors cast their votes. This does mean that even if the election is tight all the Electoral votes for that state will likely go to one or the other candidate.
(There’s also the National Popular Vote Interstate Compact, but that has not yet — and likely never will — reach the number of states necessary for it to trigger the provision necessary to work. I’m not getting into it, you can consult my previous works or google if you’re curious.)
There’s also a reasonable chance of faithless electors given that there’s not a significant penalty for it and no means of reversing the vote, but there are not a lot of situations where a single Electoral College vote will tip the scales. It theoretically could so I won’t wholly dismiss it, but it is unlikely. There was in 2016 a brief attempt to convince a sufficient number of Republican electors to cast their vote for literally anyone but Trump, but it did not get that far. And honestly, it kinda backfired.
But the big point in all this is that while states may choose how to allocate their Electoral Votes it must be legislatively enshrined before the election.
If you take anything from this article that is the point you should walk away with. Even states like Wisconsin that have seriously corrupt Republican legislatures have missed the legislative window where they might have been able to hijack the Presidential election in their state via the Electoral College. Now yeah, they can still do it other ways, but they can’t just switch Electors on the day of. They can try, but if they do it goes to the courts and the law here is very clear and not in their favour.
(I say the law is clear … I rely on people who have actually studied law to explain this weirdness and I’m still not entirely sure I understand it so just … here’s my source on this one.)
You can go down a conspiracy rabbit-hole and point out the number of judges appointed to federal courts and the Supreme Court by Trump and his cronies, but that’s why Senate confirmation is such a big deal. One could game this out and say if the election hinges on brokered Electoral votes from just one state like Wisconsin and it goes to a court dominated by Trump appointees willing to ruin their reputation and risk judicial impeachment to go against clear precedent then yes, the lasting result is a more or less permanent autocracy. So this isn’t something you shouldn’t worry about but take a look at the initial assumption necessary for all of this to go … well … south.
For all of this to go poorly the entire Presidential Election has to hinge on one to three states where the results are either contested or flat out ignored. We’d have to have a repeat of 2016.
Yes, in 2016, everything went wrong. But most people did not expect that it would, and it took failures of security and election fairness in multiple places at significant levels for it to go wrong. People were encouraged by domestic and foreign agents to vote third party or not at all because basically misogyny, Russia hacked into voting machines, and there was voter suppression. All of that has basically nothing to do with the Electoral College outside of the result.
So, while it’s totally true that the Electoral College is massively problematic and the reason why Clinton was able to win so many votes in spite of everything stacked against her and still not win the Presidency, the Electoral College itself is not the issue in 2020.
You can supress votes, intimidate voters, and even commit election fraud and thereby change the result of the Electoral College’s tally, but you cannot really just decide that your state is going to ignore its own laws.
This means that if people get really aggressive about making sure they’re registered to vote on time and get a voting plan and the ACLU and like groups keep on pushing for voter rights then it will be impossible to manipulate the Electoral College simply because there will be no states or not enough of the “right” states to flip the election.
Let’s have a look at how things are stacking up at the moment. The absolutely safe states or districts for Democrats right now as of October 9, 2020 are Washinton, Oregon, California, Illinois, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Maryland, D.C., Maine’s first, Vermont, and New York. That’s 183 Electoral College votes for the Democratic candidate Joe Biden that have virtually no chance of flipping. For Republicans the safe states and districts are Nebraska’s third, Wyoming, West Virginia, Oklahoma, Idaho, North Dakota, Kentucky, South Dakota, Arkansas, Alabama, Nebraska the state, Utah, and Tennessee. This totals 68 Electoral College votes for the Republican candidate Donald Trump.
States that tilt Democratic but are not sure things at present are New Mexico, Virginia, Maine the state, Colorado, New Hampshire, Michigan, Minnesota and Nevada. That’s another 65 Electoral College votes for the Democratic candidate totalling 248. States that tilt Republican are Louisiana, Nebraska’s first, Mississippi, Indiana, Montana, Kansas, Missouri, Alaska, and South Carolina for an additional 57 votes and a total of 125.
The states that could go either way are Georgia, Ohio, Iowa, North Carolina, Arizona, Texas, Florida, Pennsylvania, Nebraska and Maine’s 2nd districts, and Wisconsin. These states do total a full 165 votes and if you’ve been paying attention to the running totals the Democrats still need 22 and the Republicans still need 145. So if Republicans were reasonably sneaky with voter suppression in enough of those states they could still win the election. But among those 145 votes if polls exactly match election day results then Republicans can only pick up 61 of those “toss-ups,” leaving them with a deficit of 84 and no room for error. If they managed to keep all the states tilting and leaning their way and somehow picked up Arizona, Florida, Wisconsin, Pennsylvania, and North Carolina, then they win, but that is their only Electoral College path to victory and it is incredibly unlikely.
What is actually relatively likely to happen is that Texas and/or Georgia go blue. That’s also incredibly unlikely but it is more likely than Republicans managing to edge out an Electoral College win assuming the election is free and fair.
This is not to say that the Republicans can’t win this. If they cheat they can still win. But the more people who cast a vote the harder it is for Republicans to win. So if you haven’t voted yet I really want to encourage you to check your registration, have a plan, and be ready to go.
The official sites I’ll give you are:
iwillvote.com which is sort of one stop shopping for everything from voter registration to ballot requests.
vote.org where you can get a lot of individualized information on your state and your rights as a voter.
votefromabroad.org where you can go if you are an American overseas. This site also has a decent FAQ and if you type in “/states” after the url you can get additional information on ballot request and return in your state as well as look up your local election official. If you are overseas and have not updated your address (your state doesn’t know you’re abroad and you want to get an absentee ballot), you can use this site to fill out a Federal Post Card Application (FPCA) and do a Federal Write-In Ballot (FWAB).
The takeaway here aside from the thing I said before about state legislatures being unable to manipulate Electoral College results at this point in the game is that the election can’t be stolen if you don’t let it be stolen. If you go out and vote and tell everyone you know to go out and vote then there will be a clear and decisive result and the way majorities work you are likely to be in agreement with that clear and decisive result. The only way the Electoral College may be manipulated to allow someone who lost the election to win the Presidency is if it’s a close race. And if enough people vote that possibility is less and less likely.