Getting elected by the Electoral College without winning the popular vote used to be a footnote in history — but it’s happened twice in the past 20 years.
“Now it’s reality," said state Rep. David Leland, who’s leading an effort in Ohio to reform the presidential election system.
For the past several weeks, the Dayton Daily News has been investigating how Ohio’s elections systems work. This story digs into what the Electoral College is and how it might come into play in this election cycle.
When you cast your ballot for Joe Biden or Donald Trump, you’re actually voting for a slate of electors to represent Ohio’s interest in the Electoral College.
Ohio Republicans nominate a slate packed with party faithful, such as Rob Scott of Kettering, a former Montgomery County GOP chairman. Likewise, Ohio Democrats' electors slate is loaded with party faithful, such as Montgomery County Democratic Party Chairman Mark Owens.
If Biden wins the popular vote in Ohio, Owens and Democrats cast ballots in the Electoral College. If Trump wins, it’ll be Scott and his fellow Republicans. State law mandates that they vote for their party nominee, though there is no penalty for being “faithless electors.”
The Electoral College has 538 electors — based on 435 representatives, 100 senators and three electors from the District of Columbia — and 270 are needed to win the presidency. All but two states award electoral votes on a winner-take-all basis.
Those are the Electoral College basics from your high school civics class but consider these extraordinary factors in play this year:
— In tweets, the media and the first debate, President Trump has stoked fears of voter fraud, urged supporters to watch over the polls and refused to say he’ll accept the election results.
— Ohio has regained its swing state status in recent weeks as public polls show the race is a toss up here.
— Election officials expect historic voter turnout, perhaps as high as 75%, which means 6 million voters may cast ballots in Ohio.
— Voters are skittish about going to polling places during a global pandemic, which has led to a twofold increase in requests for absentee ballots in Ohio.
― Because so many are voting absentee, huge numbers of ballots may be outstanding on Nov. 3.
The federal deadline for counting all the ballots, conducting any recounts and settling any legal disputes is Dec. 8. The newly elected Congress meets in a joint session on Jan. 6 to officially count the electoral ballots.
Ohio State University law professor Ned Foley, an expert in election law, published a study last year that argued that a major dispute over the 2020 presidential election could arise just from the ordinary process of counting ballots. The study includes a scenario in which GOP-controlled state legislatures could appoint Trump electors.
Democrats tend to benefit from the “blue shift” phenomenon where late-arriving absentee ballots and provisional ballots favor them, Foley said. Trump’s initial Election Night lead in key states could be erased by the blue shift, leading him to call it a rigged election and prompting his supporters to protest in the streets, Foley writes.
Foley runs a doomsday scenario in which a key state has competing slates of electors casting ballots in the Electoral College and sending the results to Congress. The last time that happened was 1876, which prompted passage of the Electoral Count Act of 1887 to avoid a repeat of that debacle.
“The procedures for handling a disputed presidential election that reaches Congress are regrettably, and embarrassingly, deficient,” Foley wrote of the act.
Cedarville University political scientist Mark Caleb Smith doesn’t see state legislatures appointing alternate slates of electors.
“The political consequences of countering the popular vote at this point would be staggering,” he said. “I will only add that the General Assembly’s decision in a case like this would never be forgotten. It would be best, in any difficult case, to affirm the most obvious articulation of the popular vote. If it is impossible to determine this, it would be litigated."
Gov. Mike DeWine, a Trump supporter, said "We want the people to be able to vote and their votes to be counted.” When asked about a scenario in which lawmakers pick the electors, DeWine said: “No, that’s not what should happen. No. No. It’s the people’s vote.”
John Kowal, vice president of programs for the Brennan Center for Justice, said Americans should be prepared to wait more than a week for definitive election results as states finish counting absentee and provisional ballots. Still, the Constitution and Electoral Count Act lays out how disputes should be resolved, he said.
Kowal said he views Trump’s statements about voter fraud as “bluster.”
“He may say he was cheated and convince people who follow him that that’s true. Other politicians in history have whined after losing and been negative about it for the rest of their life. But he doesn’t get to magically extend his term,” Kowal said.
Typically, the winner of the national popular vote wins the White House. But in two recent instances — George W. Bush in 2000 and Donald Trump in 2016 — that hasn’t been the case, which has led to renewed calls to abolish the Electoral College.
After the 2000 election, bills were introduced in states that called for reforms but all of them failed, according to the National Conference of State Legislatures. In recent years, reforms are focused on a National Popular Vote compact that states would join to bypass the Electoral College. Under the compact, states pledge to give their electoral votes to the winner of the national popular vote, rather than the party that wins that state’s popular vote, according to NCSL.
Fifteen states that collectively hold 196 electoral votes have passed bills to join the compact. Democrats in the Ohio House are pushing House Bill 70, which hasn’t received a hearing since its initial one in March 2019.
Leland, D-Columbus, sponsor of HB70, said the Electoral College is outdated and needs reform. Short of a constitutional amendment, the national popular vote compact is the easiest fix, he said.
“Because of the outdated Electoral College system that we still operate under, there could be a lot of nightmare scenarios that create a situation where a person who is clearly not the winner of the election could be installed as president,” Leland said.
Senate President Larry Obhof, R-Medina, a Trump supporter, said he is confident Ohio will be able to run an efficient election and meet the mid-December deadline. He sees no reason to join the National Popular Vote compact or abolish the Electoral College.
“We have the Electoral College for a reason and it has served well our country for hundreds of years. Frankly, I think it’s embarrassing to have politicians who try to change the rules of the game that they think will benefit their party,” Obhof said.
Timeline for electing the president and vice president:
Nov. 3: Election Day
Nov. 13: Deadline for ballots to arrive by mail.
Dec. 8: Federal deadline for resolving election disputes in court and any recounts.
Dec. 14: Electors meet in each state and cast their ballots, which are sent to the U.S. Senate, National Archives and other offices.
Jan. 6: Electoral ballots are counted before a joint session of Congress.
Laura Bischoff is our Columbus bureau reporter and covers politics and state government. She keeps a close eye on elected leaders, public employees and taxpayer money. Bischoff tries to write stories that inform voters, hold leaders accountable and strengthen democracy.