A question that has long been standing in my mind is whether the Electoral College is constitutional.

Republicans in California, or Democrats in Texas, for that matter, actually do not have a say in the national presidential election. In essence, the electoral college system allows a simple majority in the popular vote to essentially vote in place of the losing party as well.

Although AFAIK there is no part of the Constitution where unequal voting is barred, it does seem to contradict the idea of equality present in the current Constitution. Thus the question would be, does it violate the 9th Amendment?

  • Unequal voting is barred by the 14th Amendment which restricts unequal application of due process. Commented Jan 4, 2013 at 17:18
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    The Electoral College was explicitly established by the Constitution. The move to "winner takes all" methods for choosing the Electors happened in the 1790s.
    – Jasper
    Commented Oct 11, 2015 at 23:38
  • I don't know why this got downvotes. People have filed lawsuits claiming the electoral college conflicts with other parts of the constitution: alternet.org/election-2016/… dailynews.com/general-news/20161115/…
    – endolith
    Commented Apr 1, 2017 at 14:32
  • @endolith People have filed lawsuits, true, but anyone can file so long as their check clears. The guy in the second case wasn't even willing to write the check - despite being an attorney, he tried to file as a pauper to avoid paying the filing fee. This triggered a preliminary review by a judge before he was allowed to proceed, in which his case was found to be "patently frivolous" according to the docket. unitedstatescourts.org/federal/cacd/662890 It was clearly a publicity stunt and not a serious lawsuit.
    – D M
    Commented May 2, 2017 at 16:48

1 Answer 1


The Electoral College was created by the Constitution, so I'm pretty sure it's not unconstitutional:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress
(Article 2, Clause 2)

I'm not really sure how you're interpreting the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The amendment was designed to make sure people wouldn't read sections of the Constitution that say things like "the Government can't do X" and think "Apparently the Government would've had that power otherwise; they must have other similar powers, since the Constitution didn't specifically ban those". I can't see how you could interpret it to mean "all voters get an equal say in elections"; that would prescribe a national popular vote, which would make the Constitution internally inconsistent

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    Well, one of the core concepts behind the constitution is fairness, and the electoral college was actually created so that rich white males could decide the elections. Isn't it possible that it becomes inconsistent as new developments are made? For example, in the Dred Scott case, the constitution allowed counting slaves as property, which clearly would not be allowed today. Commented Dec 9, 2012 at 8:50
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    If you are trying to determine the intent of the founders, I think I'd default on the side of the words they actually included over speculation about what the spirit of the document implies. Clearly they didn't not think it was unconstitutional. Further, you are making an unfounded assumption that this plan was desiged to help rich white males decide elections. It was designed so the states could make their OWN decisions collectively about who they favored as president.
    – JohnFx
    Commented Dec 19, 2012 at 3:59
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    The original founders also included the 3/5ths clause in the Constitution. Commented Jan 4, 2013 at 22:16
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    (Yes, and the 3/5ths clause was by definition constitutional.) The important point is that the constitution did not originally specify how electors were appointed; that was determined by the state. The governor of a state could pick them by hand, for all that mattered; there was no requirement for a vote at all. Each state was expected to figure it out for themselves. Later, there were amendments added that required states to conduct a vote, but the electoral college was, if anything, reaffirmed at that point. Commented Mar 20, 2013 at 20:10
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    @kbelder: States are not required to have a popular vote for president (a point that was raised during Bush v. Gore). It's just been a long time since any state chose not to have one. What the amendments require is that for elections that a state DOES have, they can't discriminate based on race or sex, set a voting age higher than 18, or charge a poll tax.
    – dan04
    Commented Jun 28, 2013 at 4:02

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