It is not possible to argue that the framers wisely created the electoral college and provided a sound basis for selecting the president in the twenty-first century. The electoral college does not work at all as the framers anticipated. Electors rarely exercise discretion and are condemned when they do. Instead, they are agents of political parties, which did not exist in 1787. The House has not selected the president since 1824. In addition, most of the motivations behind the creation of the electoral college are simply irrelevant today. Legislative election is not an option, there is little danger that the president will be too powerful if directly elected, voters have extraordinary access to information on the candidates, there is no justification at all for either electors or state legislatures to exercise discretion in selecting the president, defending the interests of slavery is unthinkable, and the short-term pressures have long dissipated. Those delegates who wanted electors to exercise independent judgment or be selected by state legislatures would soon be disappointed, and there is no support—and no justification—today for either option. In addition, the broad thrust of constitutional revision over the past two centuries has been in the direction of democratization and majority rule.

The presidential elections of 2016 and 2020 were two of the most disconcerting in American history. In 2016, the winning candidate lost the popular vote by 3 million votes and never obtained the support of the public. In 2020, the incumbent president lost by 7 million votes. Instead of conceding defeat, he exploited the complex system of certifying the results to prolong the denouement of the election, attempting to subvert the U.S. democratic process. Both elections raise serious doubts about democracy in America. At the core of these misgivings is the electoral college.

Many of the justifications for the electoral college focus on maintaining the harmony and cohesion of the Republic. Upon closer scrutiny, however, we find that the electoral college does not contain the results of fraud and accidental circumstances within states. Instead, it magnifies their consequences for the outcome nationally. Direct election, by contrast, would create disincentives for fraud and recounts. Similarly, the electoral college does not produce concurrent majorities around the country and force winning candidates to moderate their stances to appeal successfully to all segments of society and all geographic locations. Equally problematic is the view that victory in the electoral college ensures presidents effective coalitions for governing. Moreover, the electoral college does not produce compromise within states, and it is fundamentally different from constitutional provisions that require supermajorities to take positive action. The electoral college produces neither majority-vote victories for presidents nor mandates for their governing. It is also not a bastion of federalism. Direct election of the president would not diminish the role of state and local parties and officials or the nominating conventions, and national standards for elections are already in place and not to be feared.

At the core of the democratic process is the view that “all votes must be counted as equal.” In an election for a national officeholder, each voter has a right to expect that he or she will stand in the same relation to the national official as every other voter. It is more important than ever that we act on our best principles and not our worst instincts. Understanding the flawed foundations of the electoral college is the critical first step on the road to reforming the system of presidential selection. Given its many advantages of direct election of the president for the polity, the United States should adopt direct election of the president. The president and vice president are the only national officials who represent the people as a whole, and the candidate who wins the most votes best approximates the choice of the people. This is the essence of “the consent of the governed.”

A core justification for the electoral college, and its violations of political equality, is that it is necessary to protect important interests that would be overlooked or harmed under a system of direct election of the president. Yet such claims are based on faulty premises. States—including states with small populations—do not embody coherent, unified interests and communities, and they have little need for protection. Even if they did, the electoral college does not provide it. Contrary to the claims of its supporters, candidates do not pay attention to small states. The electoral college actually distorts the campaign by discouraging candidates from paying attention to small states and to much of the rest of the country as well. Instead, they devote their attention to competitive states. It is also the case that people of color do not benefit from the electoral college, because they are not well positioned to determine the outcomes in states. As a result, the electoral college system discourages attention to their interests. It does, however, provide the potential for any cohesive special interest concentrated in a large, competitive state to exercise disproportionate power.

The electoral college is an extraordinarily complex mechanism for selecting a president. State and national laws drawn to implement the electoral college system have only added to the complexity—and the risks of a malfunction. The allocation of electoral votes among the states may not accurately represent the citizens resident in those states. Electors are not wise elites, and they may make errors or violate their charges when casting their votes. The constitutional provisions and laws required to implement the electoral college are open to multiple interpretations and may well involve Congress and the courts in partisan wrangling over which candidate won a state and which electoral votes to count. Their decisions may misrepresent the public’s wishes. Donald Trump’s attempts both to create alternative slates of electors and to reject certified electors from states won by Joe Biden could only occur because there was an electoral college. The absence of a right to vote in presidential elections is certainly inconsistent with our notions of democracy. Similarly, the selection of the ultimate choosers of the president—electors—by party committees is contrary to our notions of transparency and popular participation. Allowing a state legislature to choose the winning slate of electors of a state makes a mockery of popular selection of the president.

The electoral college violates political equality. It is not a neutral counting device. The use of the unit-vote system, the allocation of electoral votes among the states, differences in voter turnout among the states, and the vagaries of the size of the U.S. House of Representatives allow the electoral college to favor some citizens over others, depending solely upon the state in which voters cast their votes for president. As a result, popular votes do not directly translate into electoral votes, and the candidate receiving the most popular votes may lose the election, as has happened twice in the twenty-first century. Thus, the electoral college is not just an archaic mechanism for counting the votes. It is an institution that aggregates popular votes in an inherently unjust manner. In addition, electors may violate their oaths to support their party’s candidates, and many U.S. citizens are disenfranchised.

Most critics of direct election of the president assume that it would require a runoff provision. Although it is possible that such a rule would encourage third-party candidacies, there is no need to institute a runoff under direct election of the president. Advocates of the electoral college are correct that America is better off without a second-ballot runoff election. They are incorrect, however, that the electoral college is the only way to avoid such a runoff. Although there is no voting system that guarantees that the most preferred candidate will win, both plurality election and ranked choice voting are more likely to produce the Condorcet winner than the electoral college. Neither system requires a second ballot. The electoral college is not essential for a two-party system and actually encourages third parties to run presidential candidates and discourages party competition in many states. There is no evidence that direct election of the president would polarize political parties. Similarly, there would be little incentive for secret deals under direct election and severe constraints on the bargains third parties could make. Moreover, there is much less chance of such deals under direct election than under the contingent election provision of the electoral college.

The electoral college’s provisions for contingent elections of the president and vice president blatantly violate political equality, directly disenfranchise hundreds of thousands of Americans, have the potential to grossly misrepresent the wishes of the public, make the president dependent upon Congress, give a very few individuals extraordinary power to select the president, have the potential to select a president and vice president from different parties, and fail to deal with a tie for third in the electoral college. In addition, any resolution of a congressional choice of the president is likely to be tainted with charges of unsavory transactions. It is no wonder that even the most stalwart defenders of the electoral college choose to ignore contingent elections in their justifications of the system of electing the president.