Is This Any Way to Elect a President?

As Trump persists in his claims of fraud, pursues his lawsuits in states where he narrowly lost, and solicits Republican-dominated state legislatures to subvert the election, we’re forced to ask ourselves again the question that should haunt Republicans and Democrats alike: is this any way to elect a president?

Trump’s guerilla war on the will of the people depends on a cynical exploitation of the inherently anti-democratic nature of the Electoral College – that uniquely American institution that interposes a sort of temporary robot legislature between the electorate and their choice of a president. Complaints about the Electoral College are literally as old as the republic, and this latest political purgatory may well give rise to renewed calls to reform the antiquated procedure by which we pick our head of state. But how to go about it?

Most liberals’ knee-jerk preference would be to junk the College altogether in favor of a national direct popular vote (actively debated in the U.S. Senate as recently as 1979, though opposed at the time by none other than Joe Biden). That approach has an undeniable appeal to our deepest democratic instincts, and was squarely on the table when our founders were framing the Constitution (Madison, among others, favored it). And had it been the law of the land this last November 3, Biden’s nearly seven million vote margin would have left no room for Trump’s current scorched-earth tactics.

But calls for a national popular vote suffer from the serious deficiency that it would require a constitutional amendment, something we couldn’t get done even to insure that a person’s rights wouldn’t be infringed on account of their sex, let alone to make a change that would fundamentally alter the political calculus of presidential elections. Fortunately, there are other solutions, none of which would require a constitutional amendment, or a constitutionally suspect interstate compact.[1]

The central problem with the Electoral College is not the antique goofiness of its temporary board of electors, but the “winner-take-all” method of awarding electoral votes, in which the presidential candidate who wins a bare plurality of the popular vote in a given state receives all of that state’s votes in the College. This means that voters who cast their ballots for the candidate who falls just short of a plurality in their state are effectively disenfranchised, no matter how small that margin, and even if the majority of Americans agreed with them. This in turn makes it possible for our electoral process to “get it wrong,” and deny the presidency to the candidate who wins the national popular vote, as has happened five times in our history and twice in the last twenty years (most recently in 2016).

But in addition to inviting undemocratic outcomes, the current Electoral College system incentivizes claims of fraud and other vote count disputes, because the winner-take-all method allows huge blocs of voting power to turn on a small number of readily contestable votes. In 2016, Hillary Clinton famously lost all of the electoral votes of Pennsylvania, Michigan, and Wisconsin, and consequently the election, by a grand total of around 77,000 popular votes. In 2000, Bush’s victory came down to 537 votes in Florida. In 2020, though Biden led Trump in the national popular vote by close to seven million ballots, he won the critical states of Arizona, Georgia, and Wisconsin by a combined margin of only 45,000 votes, and if he’d lost them, the result would have been a 269-269 tie in the electoral vote count (with consequences too awful to contemplate, but nonetheless previously contemplated here).

The fact is that the U.S. Constitution doesn’t mandate the winner-take-all approach that results in these quadrennial battles over razor-thin margins of votes in a handful of states. Though it establishes the Electoral College itself, the Constitution leaves to the states how they appoint the electors that will populate it.

And indeed, over our nation’s history, presidential electors have been chosen by different methods in different states. From the founding of the republic through the early 1800s, it was not uncommon for a state’s presidential electors to be chosen by the state legislature, without any popular vote at all (a practice that Trump, having lost by modern rules, seems hell-bent on resurrecting from the ash heap of history).

During this period, several states awarded electors in accordance with Congressional district-level votes, a practice that persists to this day in Maine and Nebraska (where two electoral votes, attributable to the state’s two Senate seats, are awarded to the popular vote winner of the state, and one electoral vote is allocated to the popular vote winner in each individual Congressional District). Any state could adopt this approach by statute tomorrow.

One argument against district-level allocation of electors is that it only pushes the battle over votes down to a more granular level and makes vote fraud more tempting, since fewer votes can change a district’s result than that of a whole state.

Yet another solution, repeatedly proposed but never enacted, would be to allocate a state’s electors in proportion with each candidate’s popular vote count statewide. This would preserve the political clout of less-populous states but would align their electoral votes more closely with the national popular vote, and mitigate the effective disenfranchisement of millions of American voters every four years. And again, it could be adopted by any state’s legislature without a by-your-leave.[2]

Why hasn’t electoral reform happened? There are conjectural arguments that once the winner-take-all threshold of a popular vote plurality is removed from the Electoral College system, third-party candidacies would become far more likely and raise the specter that no candidate would achieve an electoral vote majority (in which case the House of Representatives elects the president, with each state delegation having one vote). And of course, no smaller state wants to be the first to relinquish whatever outsized voting clout it wields with the winner-take-all approach.

But the principal roadblock to electoral reform is the same old bugaboo that plagues us daily: political partisanship in a two-party system. Over the past couple of centuries, the winner-take-all Electoral College system has been perceived as favoring one party or another depending on current circumstances, and the favored party has always succeeded in blocking or reversing attempts to introduce more rational methods of allocating electoral votes.[3] During most of the twentieth century, this system generally favored Democratic candidates, but in the last several decades Republicans have benefitted from an Electoral College that inflates the voting power of rural, aged, and conservative swing states.[4]

A national popular vote that weights every individual’s vote equally would demolish this advantage, and that’s why the constitutional amendment necessary to implement it will never even be considered by a Republican-controlled Senate, much less be ratified by the necessary two-thirds of the states.

But the proportional method of allocating electoral votes is far more even-handed. If it had been in effect in all states in 2016, Trump still would have won (despite losing the popular vote), and if it had applied in 2012, Obama still would have won (while also winning the popular vote).[5]

Elections like the one we’re still living through highlight the profound defects of our current system of choosing a president. And as in so many other arenas of public life, what’s required is a bipartisan consensus that we can and ultimately must do better.

But for now, we’d settle for Republican Party leaders and conservative media figures who simply cared enough about the idea of American democracy to defend its clear result and repudiate the dangerous antics of a deluded man and his conscienceless enablers. The debates over how we got to this sorry pass and how we can avoid arriving here in the future can come later, if none too soon.

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[1] Such as the National Popular Vote Interstate Compact currently making the rounds of state legislatures. In summary, this treaty among several states would award all of each state’s electoral votes to the winner of the national popular vote. It has been adopted by 15 states so far, representing about 36% of electoral votes, and would be activated only when states representing at least 50% of all electoral votes (i.e., 270) have adopted it. Perhaps too clever by half, the Compact is vulnerable to constitutional challenge, as the Article I of the U.S. Constitution ostensibly prohibits states from entering into compacts with one another without the consent of Congress.

[2] The ability of states to swap a particular method of allocating electors for another can be a liability of its own, as states might be tempted to change methodologies from election to election depending on which party controls the state legislature and who’s running for the presidency. Hence the ideal, however unlikely, would be a constitutional amendment locking all states into a single reform.

[3] See, generally, Alexander Keyssar, Why Do We Still Have the Electoral College? (2020).

[4] Ibid.

[5] See “Gaming the Electoral College,” 270towin.com/alternative-electoral-college-allocation-methods.

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