In the United States, we do not select the president by a direct popular vote of the entire country. Rather, we have a system called the "electoral college". Each state gets a number of "electoral votes" that is basically proportional to its population. (Not exactly: we'll get back to this.) Each state gives its electoral votes to its preferred candidate, and whichever candidate gets a majority of the electoral votes wins.
This candidate will USUALLY also have a majority of the popular vote, but not necessarily. There have been three times in US history when a candidate got the majority of the electoral vote while an opponent got the most popular votes: Harrison-Cleveland in 1888 (Harrison won the electoral vote 233-168 but lost the popular vote by 900,000), Bush-Gore in 2000 (Bush won the electoral vote 271-266 but lost the popular vote by 500,000), and Trump-Clinton in 2016 (Trump won the electoral vote 304-227 but lost the popular vote by about 2 million).
How is this possible? For at least three reasons:
One: Each state gets a number of electoral votes equal to the number of members it has in Congress, adding together the House and the Senate. In the House, each state gets a number of members roughly proportional to its population. In the Senate, each state gets two members, regardless of population. So the number of electoral votes a state gets is basically proprortional to its population, plus two. This skews the numbers slightly to the smaller states. For example, suppose state A had 1 million people and state B had 2 million people. Further suppose that in the House they get one member for every 500,000 people. So A gets 2 and B gets 4. But then each gets the plus 2, so A gets 4 and B gets 6. So even though B has twice as many people as A, they get only 50% more votes.
(There have been 2 other elections where a candidate won without winning a majority of the popular vote, 1800 and 1824. But those were different cases. In those elections, no one got a majority of the electoral vote so the election was decided by the House.)
This was the result of a compromise when the Constitution was originally written. The big states said that votes should be proportional to population. The small states were afraid that if they did that, they would routinely be steamrolled by the big states. If you don't see why, consider a simplified case. Suppose there were just two states, A and B. and suppose A gets 11 votes and B gets 10 votes -- almost even. Does that mean that B would get its way just a little under half the time? No. A would win every vote. Even though A has only 1 more vote than B, A would get its way 100% of the time and B would get its way 0% of the time. Of course the real situation is more complicated than that. There are more than 2 states and few questions are a simple matter of big states versus small states. Anyway, the small states said that every state should get the same number of votes. So they came up with this compromise: proportional to population, plus 2.
Two: Most states get only a small number of members in the House, like 1 or 2. This makes how we round off fractions extremely important. As of the 2020 census, each state gets one member in the House for every 761,169 people. So if a state has 761,169, they get one representative. If they have 1,522,338 people, they get two representatives. Etc. Cool. But what if they have, say, 1,100,000 people? Do we round down and give them one representative or do we round up and give them two? If each state had 30 or 40 members, this might be a fairly trivial point. But when most states have only one or two, going from one representative to two is a 100% increase. And what if a state has, say, just 300,000 people? Do we round the number of representatives down to zero and say they get no representation in the House?
So the first rule is, every state gets at least one member in the House, no matter how small their population.
After that, rounding gets much more complicated. You might think, Why not just follow the normal rounding rule? Divide by the chosen divisor, and if the remainder is 0.5 or more round up, if it's less, round down. The problem with that is, in 1912 Congress passed a law declaring that the House must have exactly 435 members. As populations change, the number of members that each state gets has changed, but the total has remained at 435. If you applied the simple, standard rounding rule, then depending on the exact numbers, sometimes we would end up with 436 or 437 or 432, etc. For some reason that is not entirely clear to me, this is considered unacceptable.
Congress has labored mightily to come up with a rouding rule that guarantees the "correct" total number of members while being arguably "fair". There have been a number of suggestions and several different rules have been used over the years, but the rule used presently is rather complex. I won't go into the details, but if you want to read about it, see, for example, Wikipedia: Congressional Aportionment.
So a candidate could win the electoral vote while losing the popular vote if he won many small states but lost most of the big states. That little "plus 2" and "minimum 1" could add up across many states.
Futhermore, according to the Constitution, each state decides how to award its electoral votes. In the past, some states had the state legislature choose. Today, all states decide by popular vote. In 48 states and the District of Columbia, the rule is that whoever gets the most popular votes gets all the electoral votes. So if candidate Smith wins 51% of the popular votes and Jones wins 49%, Smith gets 100% of the electoral votes and Jones gets zero.
Suppose a candidate wins narrowly in several states and loses big in others. To again take a simplified example, suppose there are 5 states, they each have 1 million voters, and they each get 1 electoral vote. Smith wins by 501,000 votes to Jones 499,000 in 3 of these states. Jones wins all 1 million and Smith gets zero in the other two states. So smith wins 3 states for 3 electoral votes while Jones wins only 2 states. Smith wins the election 3 to 2. But in popular votes, Smith had 1,503,000 votes to Jones 3,497,000 votes. Jones had over twice as many votes as Smith, but still lost the election.
Sometimes people will say that this is unfair and anti-democratic. After Clinton's loss to Trump, many of her supporters said that she was the "real winner" because she had the most popular votes. Others worded it as, If the winner was the candidate with the most popular votes, Clinton would have won.
But that's like saying that your team was the "real winner" of the football game because, if the scoring rules had been different, you would have won. Like you think a field goal should be worth as many points as a touchdown, and your team completed more field goals. One could only say, "So what?" Under the rules as they existed, you lost. You knew the rules when you started the game. Why didn't you play to win under the actual rules, rather than under some hypothetical set of rules that might exist in an alternate universe?
It does not at all follow that Clinton would have won if the rules gave the presidency based on popular vote. She would have won under those rules, IF both candidates had campaigned exactly the same way as they did under the actual rules. But that's a huge IF. It's not like candidates don't consider how the electoral college works when they plan their campaign strategy. For example, Republicans rarely devote a lot of resources to campaigning in California, because they know that's a solid Democratic state and they are unlikely to win it no matter what they do. In 2020, Joe Biden won California with 63% of the vote to Trump's 34%. (And a few percent going to other candidates.) Suppose Trump had campaigned really hard in California. Maybe he could have won 40 or 45%. He still would have lost the state with all of it's electoral votes. The extra effort would have been wasted. It made far more sense to devote that effort to states that were close, like Arizona, which Trump lost 49.4% to 49.0%. If Trump had worked just a little harder or been a little more successful in Arizona, he might have won the state. If he could have flipped just 600 voters in Arizona, he would have won. If he had flipped 600 voters in California, it would have made zero difference. But if the rules were that the candidate with the most popular votes wins, then the calculations become completely different. Instead of, "which states can I flip with a reasonable effort", it becomes "where can I flip the most votes with a given effort". For example, if by holding one rally in California a candidate could win 2,000 votes, and by holding one rally in Arizona he could win 1,000 votes, under the electoral college it makes more sense to hold the rally in Arizona and potentially flip the state. Under a pure popular vote scheme it makes more sense to hold the rally in California because he wins more votes per unit of effort.
Every system of representative govenment has this problem to at least some extent.
For example, consider the United Kingdom. They don't elect their Prime Minister directly. Rather, the people vote for members of Parliament, and then the members of Parliament vote for a Prime Minister. The House of Commons has 650 members. Each member represents a "constituency" of about 73,000 voters.
So suppose that in 326 constituencies, party A wins 37,000 votes and party B wins 36,000. In the other 324 constituencies, party B wins all 73,000 votes and party A wins zero. Party A wins a majority of Parliament, 326 to 324, and chooses the Prime Minister, even though party B won 35,388,000 votes to party A's 12,062,000. Party B wins almost 3/4 of the vote but loses the election. Of course this is an extreme scenario, but one could easily imagine a more plausible scenario, winning a bare majority in Parliament while losing the popular vote by 1 or 2%.
Also, the number of voters per constituency varies, from 21,106 in Na h-Eileanan an Iar (Scotland) to 113,021 in the Isle of Wight (England). Just like a presidential candidate in the US could take advantage of the "minimum 1" and "plus 2" rules to cobble together a majority of electoral votes with a minority of popular votes, so a party in the UK could cobble together a majority in Parliament with a minority of popular votes if they can appeal to constiuencies with a smaller number of voters.
(The UK is more complicated than that because they have more than two parties, but that's beside the point here.)
Ironically, many people who attack the electoral college as "undemocratic" also champion the United Nations as the pinnacle of global democracy. But in the General Assembly of the UN, each country gets one vote, regardless of population. So India, with 1.4 billion people, gets one vote, and Tuvalu, with 10,900 people, gets one vote. If India, China, the US, Indonesia, Pakistan, Nigeria, and Brazil voted one way and the rest of the members of the General Assembly voted the other way, they would lose overwhelmingly, 7 to 186, even though between the 7 of them they represent over half of the world population.
Two states do NOT give all their electoral votes to whoever has the most popular votes: Maine and Nebraska. THese two states use the same rule: they give one electoral vote to the winner in each House district, and 2 votes to the overal winner of the state. So for example in Maine, there are 2 House districts. If Smith won district 1, Jones won district 2, and Smith won overall, then Smith would get 3 electoral votes and Jones would get 1. (It is possible, but unlikely, that someone could not be the winner in any district but still be the overall winner, if there were 3 or more candidates in the race.)
A few years ago Colorado considered a proposal to award their electoral votes in proprotion to the popular votes. That is, if Smith won 60% of the popular vote and Jones won 40%, then Smith would get 60% of the electoral votes and Jones would get 40%. This would have to be rounded off to whole electoral votes, so rounding issues could be significant. Ultimately the proposal went nowhere. Perhaps because people thought through the implications: If Colorado had passed this proposal, they would effectively be abstaining from future presidential elections. Think about it. In most states, the winner wins by maybe 55 to 45. Winning 60/40 is a huge deal. At the time Colorado had 9 electoral votes. (They now have 10, but then they had 9.) So if a candidate got 55% of the popular vote, he'd win 5 electoral votes. To get 6 he would have to win 2/3 of the popular vote, 67%. If you look over Colorado's record of popular vote for president, for example Wikipedia, the biggest percentage anyone has ever gotten was 65% by Herbert Hoover in 1928. So depending on the rounding formula, maybe that would have won him 6 votes. (Assuming Colorado had 9 votes back then, which they didn't, but beside the point.) So under the "winner takes all" system, candidates fighting in Colorado are fighting for all (then) 9 electoral votes. Under a proportional system, both parties would surely get at least 3, maybe 4, if they didn't campaign at all. So they'd be fighting for 1 or 2 votes. It would be far wiser for a candidate to devote resouraces to campaigning in a state with 10 or 15 votes at stake than to fight over 1 vote.
Several states have gotten together to create the "National Popular Vote Interstate Compact". This is a deal between the states that says that instead of giving their electoral votes to whoever wins the popular vote in their state, they will give their electoral votes to whoever wins the national popular vote. The deal says it only goes into effect when states sign on with a total of 270 electoral votes or more, that is, enough to decide the election. As of this writing, April 2024, there are 17 states and the District of Columbia, with a total of 209 electoral votes. In order of adoption: Maryland, New Jersey, Illinois, Hawaii, Washington, Massachusetts, DC, Vermont, California, Rhode Island, New York, Connecticut, Colorado, Delware, New Mexico, Oregon, Minnesota, and Maine.
Some have challenged the constitutionality of this agreement. The Constitution says, Article 1 Section 10 Paragraph 3, "No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State ..." Congress has never approved this deal so it may be void. And it is clearly an attempt to indermine the electoral college system created by the Constitution. But the Constitution says that each state shall determine how it chooses its electors, so who says they can't choose this method?
I wonder, though, what would happen if enough states signed on to activate this agreement, and then we had an election where, under this agreement, candidate A wins the election, but in one of the participating states, some other candidate B got the most popular votes, and if the state had given its electoral votes to B, then he would have won.
For example, suppose that Smith narrowly wins the national popular vote, and so all the states in the compact give him all their electoral votes, and his final total is 285 votes. His opponent, Jones, gets the other 253 votes. Smith wins. But in, say, Illinois, a majority voted for Jones. Because of the compact, Illinois gave its electoral votes to Smith, but without the compact, they would have given them to Jones. As Illinois has 19 electoral votes, that means Jones would have won, 272 to 266.
Would that state (Illinois in my example) back out of the agreement? Would others, seeing what happened, back out? Or would they say, "Yes, that's what we signed up for. We didn't get the candidate we wanted this time, but we stand by the principle that this is the right way to choose a candidate"?
In the three times that a candidate has won the electoral vote but lost the popular vote, the winner has been a Republican all three times. This is not totally surprising. The Republican Party tends to be more popular in rural areas and the Democrats are more popular in urban areas. So states that are mostly rural tend to vote Republican and states that are more urban tend to vote Democrat. In practice this means that the Democrats usually win a small number of big states while the Republicans win a big number of small states. As the electoral college is scewed toward small states, this benefits Republicans
It's amusing to note that all 18 of the states (including DC) that have signed on to the Popular Vote Interstate Compact are Democrat states. None has voted for a Republican since the compact was first introduced. Perhaps this is because states on both sides have looked at election results and seen that, if this compact had been in effect during previous elections, it would have helped the Democrats 3 times and the Republicans zero times.
But it would be jumping the gun to suppose that this situation will continue indefinitely into the future. There are many small states that vote consistently Democrat: Rhode Island, Vermont, Delaware, etc. And there are some big states that vote consistently Republican: Texas, Florida, and Ohio. Political winds change all the time and it may be that in a few years there will be more Democrat small states than Republicans. Or maybe not. Tinkering with relection rules is tricky: Change the rules to benefit your team, and you may find that in an election or two you actually benefitted the other team.
© 2024 by Jay Johansen
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