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.1 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.2 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.3 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.4 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.5 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.6
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that the modern situation is critically different, and any national security benefits from the Electoral College have been replaced by threats.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.7 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.8 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.9 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.10
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.11 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.”12 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.13 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.14
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.15 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.