Georgetown Law
Technology Review

In late January, Georgetown University Law Center hosted a debate on the best method for electing the President of the United States, with expert panelists arguing whether we should maintain the Electoral College or establish a national popular vote.1See Distinguished Visitor Paul Smith, Rep. Jamie Raskin and Trent England Debate “Electoral College v. Popular Vote,” GEO. U. L. CENTER (Jan. 26, 2018), https://www.law.georgetown.edu/news/web-stories/electoral-college-popular-vote.cfm. During the event, one line of conversation focused on the significant technological and national security implications of preserving the current system. In particular, the debaters discussed how the Electoral College might increase the possibility of “strategic mischief from abroad,” focusing specifically on how the current system may have allowed Russian hackers to strategically attack the electoral infrastructure of key swing states and shift public opinion with disinformation campaigns in microtargeted communities.2Georgetown Law Channel, Rep. Jamie Raskin and Trent England Debate “Electoral College v. Popular Vote,” YOUTUBE (Jan. 30, 2018), https://youtu.be/WtfeSbzoBzw?t=9m55s (featuring a pronational popular vote advocate presenting his views on the technological and security threat posed by keeping the Electoral College). As this is a topic of great contention and seriousness in the broader national debate, those who work in law and technology must consider the arguments on both sides.

For those who believe the Electoral College is a national security threat, the argument centers on how modern conditions have rendered the existing system obsolete.3See Matthew Olsen & Benjamin Haas, The Electoral College Is a National Security Threat, POLITICO MAGAZINE (Sept. 20, 2017), https://www.politico.com/magazine/story/2017/09/20/electoral-college-threat-national-security-215626. Advocates for reform acknowledge that the Founding Fathers originally had, in part, a national security motivation for creating the Electoral College, but believe the facts underlying this conclusion have changed.4Id. (quoting the Federalist No. 68 by Alexander Hamilton, in which he argued that the Electoral College could shield the United States “from the desire in foreign powers to gain an improper ascendant in our councils”). In short, the Electoral College was designed to imbue power in a transient body of electors, comprised of individuals scattered across thirteen states with limited means of communication and transportation.5See id. (discussing the historical limits on transportation and communication during the Founding era). Thus, historic logistical realities would have made it too time-consuming and expensive for any foreign entities to actually co-opt a significant number of electors before their job was done and power dispersed.6See id.

Reformers argue that the modern situation is critically different, and any national security benefits from the Electoral College have been replaced by threats. First, the Electoral College has never independently chosen the President as the Founders intended; it has instead evolved to reflect the will of voters in each elector’s state with a system that effectively gives extra weight to the votes of citizens in certain key swing states and communities.7See id. Electors technically can become “faithless electors” and break a pledge to vote as dictated by the state vote, but only 167 electors have ever done so in the history of American presidential elections. See Faithless Electors, FAIRVOTE (last visited Feb. 18, 2018) http://www.fairvote.org/faithless_electors. No “faithless elector” has ever impacted an American election and our system is therefore effectively one that reflects each state’s will as a result. Jonah Engel Bromwich, How Does the Electoral College Work?, N.Y. TIMES (Nov. 8, 2016), https://www.nytimes.com/2016/11/09/us/politics/how-does-the-electoral-college-work.html. Second, technology has developed such that foreign powers can now meddle in American elections with relative ease, including by using cyber tools to hack election machines and infrastructure, as well as disseminate disinformation campaigns on social media.8See Olsen & Haas, supra note 3. Thus, reformers assert that the Electoral College is now a national security threat because it concentrates power in select communities that “malign outside forces” can microtarget with cyber campaigns designed to influence American electoral outcomes.9See id. By contrast, the reformers believe that a national popular vote system could diffuse this threat by equalizing voting power amongst U.S. citizens, forcing foreign meddlers to undertake the more difficult task of tampering with voting machines nationwide, or influencing millions of individuals scattered across the country.10See id. They also argue that the Electoral College should be eliminated for other reasons relating to ideals of democratic representation and governance, but these arguments are beyond the scope of this article. See id.

In rebuttal, other commentators argue that this purported threat is both overblown and unsolvable by eliminating the Electoral College. First, proponents of the current system assert that fraudulent news stories (aka “fake news”) and rapid disinformation campaigns were well-known and understood by the Founders.11Jarrett Stepman, No, the Electoral College Is Not a ‘National Security Threat,’ DAILY SIGNAL (Sept. 21, 2017), http://dailysignal.com/2017/09/21/no-electoral-college-not-national-security-threat. As such, they contend that the American constitutional structure was deliberately designed with checks on direct democracy, including the Electoral College, that could filter popular passions through a “winnowing process” that “ultimately leads the country toward the truth.”12See Jarrett Stepman, The Founders Anticipated ‘Fake News.’ Here’s What They Did About It, DAILY SIGNAL (Dec. 30, 2016), http://dailysignal.com/2016/12/30/the-founders-anticipated-fake-news-heres-what-they-did-about-it (asserting that the Founders were well aware of “fake news,” and that “hyper partisan, scurrilous, and even phony news stories [have] been more common than uncommon throughout the history of the republic”). Second, these writers criticize the national popular vote as an alternative for the Electoral College, arguing that this reform would simply shift the mass of electoral power to densely populated areas, thus centralizing which territories have the most influence even further and providing easier targets for foreign hackers.13See Hans A. von Spakovsky, The Electoral College: A Safeguard for Stable Elections, HERITAGE FOUND. (Oct. 2, 2017), https://www.heritage.org/election-integrity/commentary/the-electoral-college-safeguard-stable-elections. They therefore conclude that the threat of disinformation is not only overblown and one the existing system can handle, but that eliminating the Electoral College would not fix any technological or security concerns relating to hacking.14See id. They also argue that the Electoral College should be maintained for other reasons relating to ideals of democratic representation and governance, but these arguments are beyond the scope of this article. See id.

Ultimately, this debate reveals some of the most pressing questions at the intersection of technology and election law, including issues that go beyond the context of foreign meddling, such as the use of social media by political campaigns and the vulnerability of voting machines generally.15See, e.g., Sean Illing, Cambridge Analytica, the Shady Data Firm That Might Be a Key Trump-Russia Link, Explained, VOX (Dec. 18, 2017, 7:46 AM), https://www.vox.com/policy-and-politics/2017/10/16/15657512/mueller-fbi-cambridge-analytica-trump-russia (detailing the operations of a data firm with software that can create personality profiles of voters, which any political operation can use to craft and distribute specifically tailored campaign content); see also The Business of Voting: Market Structure and Innovation in the Election Technology Industry, U. PENN. WHARTON PUB. POL’Y INITIATIVE (2017), https://publicpolicy.wharton.upenn.edu/business-of-voting (describing an “impending crisis in America’s election technology” attributed to ineffective government action and distortions in the private election technology industry). If there is any clear lesson to take away, it is that an understanding of technology is increasingly essential for those who will design our governing systems moving forward.