Photo by Carlos Osorio via Getty Images Photo by Carlos Osorio via Getty Images

An archaic system that has for centuries held back true democracy in the United States has now fueled violence in the halls of the Capitol itself.

LANSING, Mich.—On an overcast Monday in December, 16 Michiganders met in the state’s Senate chambers to cast Michigan’s electoral votes. No one else was allowed in the building, and the offices for the Legislature had been closed and evacuated.

That isn’t normally what happens when the electors cast their votes, but it was 2020, when the lives of the electors were subjected to a credible threat.

“The meeting of the Electoral College should be a celebration of our democracy but instead has now become a target for threats, intimidation and violence,” tweeted state Rep. Donna Lasinski (D-Scio).

That, of course, ultimately led to the siege on Capitol Hill on Jan. 6, which attempted to, through violence and intimidation, prevent certification of the election results in a misguided and dangerous ploy to prevent the presidency of Joe Biden from happening. An event with multiple deaths, where the lives of elected officials were endangered by domestic terrorists.

That same specter of violence hung over the TCF Center in Detroit the day after the election, where votes were being counted under terrifying conditions. Protesters chanted  “stop the count,” while pounding on glass windows, foreshadowing the threat faced by the electors a month later. 

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Detroit votes were so contested because when the mob formed outside the counting room at the TCF on Nov. 4, the outcome of the vote in Michigan, and by extension the state’s 16 electoral votes, was unknown but shifting away from President Donald Trump. So his supporters attempted to stop the counting of lawful votes before those electoral votes slipped through their fingers. 

And, ultimately, these incidents both stem from the same system—parts of which have long outlived their usefulness in the the United States’ democratic institutions. 

The History of the Electoral College

America’s electoral system was developed at a time when it was nearly impossible to  to count every vote and reliably report those counts. There was no quick travel between states, communication could take days or months, and the light speed internet was beyond imagination. Instead of reporting counts to a central election agency, the framers of the Constitution formed the Electoral College at the 1781 Constitutional Convention so those counts were given to their states, who selected electors to travel to the nation’s Capitol to cast the electoral votes of the states. 

The Electoral College also sought to address concerns over “faithless electors.” Faithless electors are electors who vote for someone the majority of voters in their state didn’t support. To minimize the frequency at which this occurs, many states, including Michigan, have laws that punish faithless electors for violating the will of the people. 

But the early United States was terrified of its citizens as much as it was terrified of its potential future leaders. The Constitution is littered with firebreaks designed to reign in the influence of the passions of the masses. The fear was that a demagogue could win over popular support while being, in essence, totalitarian and posing a risk to the integrity of the Constitution.

This secondary purpose has been rendered as obsolete as the primary purpose, however. As Fair Vote shows, there’s a patchwork of policies regulating and penalizing faithless electors to different extents, severely limiting their power in swaying the outcome of an election. No election has ever been decided by a faithless elector. And, in fact, the kinds of Constitutional crisis the faithless electors exist to prevent have been caused repeatedly over the past four years by a president only elected because of the electoral college system. 

But how did that cause the chaos at TCF?

The Modern Electoral College

Out of 50 states, only 12 are considered “swing states” in that they might send electoral votes to either major political party. The rest are “safe states” in that one party or the other can reliably assume to win that state. Without knowing the candidates in 2024, political scientists could project to a high degree of certainty that Montana’s electoral votes will go to the Republican and Oregon’s to the Democrat. Before a single vote is cast, both political parties have nearly 200 electoral votes already in their column. 

Thus, campaigns are left to fight tooth and nail for the few remaining states, while largely taking their safe states for granted. 

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This creates a game political parties play trying to get every vote possible in swing states and letting the safe states comfortably pad their starting positions in the race to 270 votes by being assumed either red or blue. 

And the chances that most Americans vote for the candidate who does not become the president have become surprisingly high. It’s happened twice in the past 20 years. In 2000, George W. Bush won the Electoral College with 271 votes to Al Gore’s 266, but Gore received 500,000 more votes nationwide. That was even more striking in 2016, where Donald Trump took home 304 electoral votes compared to Hillary Clinton’s 227, despite Clinton getting 3 million more votes nationwide. This has happened three other times as well.

This mismatch might make sense if the cause was faithless electors acting to prevent damage to the Constitution by a totalitarian president, but faithless electors didn’t tip any scales. The cause of the mismatch was instead structural issues with the Electoral College itself and how by assigning states electoral votes and not considering the national popular vote at all, the system ignores Democrats in red states, Republicans in blue states, and can award all of Michigan’s votes to a candidate who won the state by a razor-thin margin

It’s also clearly unnecessary from a practical perspective. More than half of the world’s democracies directly elect their head of state, reports Pew Research Center. Of the ones that don’t, only a handful have a system even remotely like the Electoral College. 

And that’s made the Electoral College wildly unpopular, with 61% of Americans calling for it to be abolished. But abolishing it would require a Constitutional amendment, and those are notoriously hard to pass. In almost 250 years of US history, only 27 amendments have been added and the first ten of those were almost immediate additions. 

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Proposed amendments need to be passed by both chambers of Congress by two-thirds majorities and then three-fourths of the states need to agree to it. That means every single non-swing state would need to approve the amendment as well as it getting strong bipartisan support in Congress. That’s a Herculean task. 

But there are ways to make the Electoral College a ceremonial irrelevancy instead of a system that ignores Californians and sends angry mobs into the TCF Center in Detroit, or makes electors a target for harassment or worse. 

What Can We Do?

There’s a loophole in the system of laws that define and support the Electoral College that could give the national popular vote the power to decide the presidency. The same authority that lets states like Michigan punish faithless electors lets those states choose how electors are decided. 

That means if enough states say, “Electors for our state must vote for the winner of the national popular vote” and invalidate and punish faithless electors, the winner of the Electoral College will always be the winner of the national popular vote. 

The obvious problem with this idea is one of collective action. If a safe state like Wyoming passed this law alone, it would be playing by a different set of rules than the rest of the nation, and that would take away a lot of the voice of Wyoming voters. If Michigan passed it, it might help sway elections but would still weaken the voice of Michigan voters. 

So the National Popular Vote Compact was designed. The idea is that states agree to award their electoral votes to the winner of the national popular vote, but only when enough states have signed on to the compact to determine the outcome of the election. The odds of this approach being successful are much higher than an amendment. In fact, they’re surprisingly close to success already.

Colorado voted on Election Day to sign on to the compact. It was the 15th state to do so, and brought the total electoral votes the compact represents up to 196. It only needs 74 more electoral votes to make the Electoral College an obsolete novelty instead of the defining factor of US elections.

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Convincing the Michigan legislature to bring that total to 212 by joining the compact might be a challenge, despite increasingly tense political climates in counties across the state.

Ultimately these tensions are so high because a vote for president in a state like Michigan is so much more powerful than none in Kentucky. This also gets Michigan special attention from presidential candidates and allows up greater influence over policy. Biden’s plans for a green economy could benefit many manufacturing states, but he’s put the impact on the auto industry front and center, thanks to Michigan’s importance in the Electoral College. 

That’s also fundamentally unfair. Though the Electoral College is rife with ways that the concept of one person, one vote is violated, the artificial creation of swing state dominance over the electoral system is the most egregious. A Michigander’s vote should be as valuable as an Alabaman’s or a Vermonter’s.

And it wouldn’t take convincing the state legislature to pass the compact necessarily. It could be passed by citizen initiative, as Michigan did with it’s citizen-led process to draw new voting districts after the census. The Gander has explained how to do this before, but in short that would take a petition drive followed by a citizen-led campaign.

With more states signing on to the compact, the agreement eventually will be in place. Indeed, there are enough safe state electoral votes to pass the compact without swing states like Michigan. It’s up to Michigan—and Michiganders—to decide if it will get involved now, or wait for the day it happens without us.