What to do about the Electoral College

When I was in college back in the 1980s, my then-girlfriend used to argue that the most important election reform to pass would be the elimination of the Electoral College. I disagreed, arguing that universal voter registration was far more important. How wrong I was.

That’s not to imply that we don’t need to reform our voter registration laws. But back when I was in college, you could reasonably argue that the Electoral College was just a historical artifact, like British royalty, with little influence. Back then, you could look at our entire history, and only twice had the Electoral College selected a president who did not win the popular vote: in 1876 and 1888. So the undemocratic potential of the Electoral College seemed to be a theoretical concern.

How things have changed. In both 2016 and 2000, divisive Republicans were elevated to the presidency despite losing the popular vote by significant margins. George W. Bush lost the election by about 550,000 votes, or about 0.5 percent of the total vote. In 2016, Donald Trump lost the popular vote by nearly 3 million votes, or 2.1 percent of those cast. Clearly something is amiss. As Ezra Klein pointed out in the New York Times, “America isn’t a democracy.”

Some argue that that’s OK. America was never intended to be a democracy, it is a republic. In fact, that is a distinction without a difference. Merriam-Webster defines republic as “ a government having a chief of state who is not a monarch and who in modern times is usually a president” and “ a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law.”

Indeed, the Constitution in Article IV, section 4 guarantees Americans a “republican form of government.” Likely, the reason they chose that word rather than democratic is that they did not want to confuse our representative system with one in which people govern directly, as was common in New England at the time or in Athens during its golden age. Nevertheless, an election in which the winner loses the vote by such a substantial margin seems unrepublican based upon the definition above.

Others point out that Trump would have won the popular vote if we had excluded California’s large vote in favor of Clinton. That’s true, but irrelevant. Had we excluded Texas, Clinton would have won the popular vote and the Electoral College, hence winning the election. But Texas and California are part of the United States, much as some of us might not like that. As a result, such claims are both ridiculous and irrelevant.

The bottom line is that it’s hard to reconcile someone winning the presidential election while getting substantially less votes than the losing candidate.

How we got here

The idea of the Electoral College is enshrined in the Constitution, Article II, section 1. Ironically, the term “college” never appears in the Constitution, and contrary to many people’s perception, the Electors never meet together in one place. Instead, the Constitution states that Electors shall meet in their states where they vote for president. Those votes are then transmitted to Congress, where the President of the Senate opens the ballots.

Interestingly, in no place does the Constitution specify that Electors must correspond with the popular vote of the state. In fact, it states that “each State shall appoint, in such Manner as the Legislature thereof may direct.” In other words, the state appoints electors based upon a statute passed by the State legislature. There is no Constitutional provision or Federal law that requires electors to vote according to the results of the popular vote in their States.

States have varied the way they appoint Electors. For example, Maine and Nebraska don’t have the system in which the winner of the state gets all the Electoral College votes. Instead, Electors are appointed based upon the results by Congressional district.

Similarly, there are recent examples of Electors not voting the way their state voted. In 2016, in Texas, despite Trump winning the state by a substantial margin, one of the Electors voted for Ron Paul and another voted for John Kasich.

The problem with the Electoral College arises with how it is allocated, and this is specified in the Constitution. Each state gets one Elector for each Member of Congress representing the state. As a result, the smallest states get one Elector for its member of the House of Representatives, and two for each Senator.

If the Electors were allocated based purely upon the allocation of Representatives by state, this would not be such a big problem since Electoral representation would more or less match geographic distribution. But adding the Senators creates a problem.

Consider the following. The least populous state in the union is Wyoming. It is allocated one representative and two senators for its 578,759 residents. By contrast, California, our most populous state with 39,512,223 residents, has 53 representatives and two senators. The result is that Wyoming has three Electors, or one for every 192,920 residents while California has one for every 718,404.

The difference is the allocation of Electors based upon Senators. If the Electors were allocated solely based upon the House members, Wyoming would have one Elector per 578,759 residents, and California one for 745,514 — a much smaller gap.

This is where the argument that one vote in Wyoming is worth much more than one vote in California comes from.

The way forward

First let me address those who will argue for a Constitutional amendment. Since our founding, that document has been amended only 27 times. Ten of those are the Bill of Rights, which basically passed along with the original Constitution. Three of those amendments are the result of the Civil War. Two of them address Prohibition: one mandating it, the other abolishing it. The most recent amendment took 203 years to become law. Personally, I don’t want to wait that long to address our Electoral College problem.

It is hard to amend the Constitution. Doing so requires a 2/3 vote in both Houses of Congress and the approval of 3/4 of the states. That’s why it has been done so few times.

To address this problem, then, we need to take into consideration what the Constitution states and where it is silent. Fortunately, the language in the Constitution is so general that addressing this problem could be accomplished by passing a few federal laws.

For example, Congress could pass a law requiring the Electors to vote based upon the national popular vote results. Never again would someone win the presidency while losing the popular vote.

Similarly, Congress has the power to admit new states. Admitting the District of Columbia and Puerto Rico as states is essential. Both D.C. and Puerto Rico have a greater population than many states. And Puerto Rico would not have the problems getting the federal aid it needs if it were fully represented in Congress.

There are other steps Congress can take. It could expand the size of the House of Representatives. It could stop states from gerrymandering. It could mandate universal voter registration, at least in national elections. It can even increase the size of the Supreme Court, allowing the appointment of two more Justices, potentially tipping the ideological balance of the Court so that it can overrule Citizens’ United and other Court decisions that have privileged money in political discourse. These steps would make America much more democratic, and in so doing, would reduce the toxic polarization of our current polity. They are all achievable if… Democrats win the Presidency, the House and the Senate in 2020.

This brings us to the main point of this article. If you care about democracy in America, you need to get involved and vote in 2020. Unfortunately, Republican control of government depends upon a continuation of these anti-democratic trends that will only become more serious as the most populous states become increasingly diverse while most of America geographically becomes more homogeneously white. Truly, American democracy is on the ballot this year. The only question is if we care enough to do something about it.