We all love to complain about politics and politicians, especially in an election year as fraught as this one. But occasionally we need to raise our sights above the immediate fray and consider the structural defects in our electoral system that we can actually do something about.

It’s already clear that the 2024 presidential election will turn on the outcome in a handful of swing states, in a majority of which Biden currently trails Trump in the polls. This means that we Americans face the unpleasant prospect of another national election in which, for the third time in the last twenty-five years, the candidate who wins the national popular vote (likely Biden) could nonetheless lose the presidential election, and the candidate who wins the presidency (likely Trump) might well do so because of less than a hundred thousand votes scattered across a handful of states.

We’d pity a foreign country that was subject to such a capricious and antidemocratic regime, and yet we willingly submit to it every four years. For no good reason.

I refer, of course, to the Electoral College – that uniquely American institution that interposes a temporary board of electors between the voters and their choice of a president. Complaints about the Electoral College are literally as old as the republic, and our latest political purgatory should be stimulating renewed calls to reform the antiquated procedure by which we pick our president.

Yet we’re strangely complacent about it, in part out of ignorance and inertia, and in part because the current state of affairs serves entrenched political interests in both major political parties. None of this justifies our continued submission to the unnecessary tyranny of our current Electoral College system.

The phrase “Electoral College” does not appear in the U.S. Constitution, but only in a Federal statute enacted in 1845, referring to the States’ Electors as a group, though they never actually meet as such. The now breathtaking anachronism of a temporary board of state-appointed “electors” was conceived by our Founders as a way of side-stepping the problem that the large slave population in the South wouldn’t be able to participate in a direct popular vote. Hence, like the infamous and shorter-lived “Three-Fifths Compromise”, the very idea of the Electoral College was and is, in a very real sense, a constitutional by-product of the institution of slavery.[1]

But put that discomfiting fact aside. The central problem with the current Electoral College system is 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 electoral votes. 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 voted the same way. 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, most recently in 2016.

But in addition to inviting undemocratic outcomes, the winner-take-all system incentivizes vote count disputes of the kind fomented by Donald Trump and his minions in our last post-election circus, because the winner-take-all method allows huge blocks of voting power to turn on a small number of readily contestable votes. In 2000, George W. Bush’s victory came down to 537 votes in Florida. In 2016, Hillary Clinton won the popular vote by nearly three million votes, but lost all of the electoral votes of Pennsylvania, Michigan, and Wisconsin, and consequently the election, by a grand total of around 77,000 votes. In 2020, though Biden beat Trump in the national popular vote by close to seven million ballots, he won the outcome-determining states of Arizona, Georgia, and Wisconsin by a combined margin of only 45,000 votes.

Our sense of helplessness before this quadrennial travesty is at least partly based on the misconception that the Constitution, so terribly hard to amend, requires the states to follow the winner-take-all approach to awarding electoral votes. But it doesn’t. The Constitution (Article 2, Clause 2) says only that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” equal to its number of senators and representatives in the House. From the founding of the republic through the 1830s, close to half the states, at one time or another, awarded electors on a congressional district-by-district basis, a practice that persists to this day in Maine and Nebraska.

So while it’s true that eliminating the EC altogether would require a constitutional amendment, any state could, by statute, immediately adopt district-by-district award of electoral votes.

Another solution, repeatedly proposed, would be to allocate a state’s electors in proportion with each candidate’s popular vote count statewide. This too would align 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 constitutional by-your-leave.[2]

Of course, there’s a big downside to the Constitution’s wholesale delegation of authority to the states to select presidential electors. In the early decades of the republic, it was not uncommon for a state’s presidential electors to be chosen by the state legislature without any popular vote at all. As November 2024 approaches, nothing but fear of public outrage would prevent a state legislature from convening and voting to allow – just for this next election, folks, don’t worry! – the state legislature to select electors directly, rather than by popular vote winner-take-all.

This is indeed the sort of autocratic fever dream that gave rise to the so-called “independent state legislature” (ISL) theory, which argues that the Constitution’s delegation of authority to the states to regulate congressional and presidential elections means that state legislatures have preemptive authority in such matters, independent of state courts or state executives. Thankfully, in the case of Moore v. Harper, decided last year, the Supreme Court poured a bit of cold water on ISL, ruling that the Constitution’s use of the word “legislature” in the so-called Elections Clause (Article 1, Section 4) means the government of a state as a whole, and not just the body that enacts laws, and that therefore North Carolina’s legislature couldn’t decide on its own that gerrymandering the state’s congressional districts was perfectly ok.

But that doesn’t necessarily mean that ISL is dead. Moore interpreted the Elections Clause of Article 1, but how to select electors in a presidential election is governed by Article 2, and its phraseology is crucially different.  It’s hard to imagine that by the words “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” (the language of Article 2), the Founders meant that the entire government would “direct” that process, whereas it’s a bit easier to believe that they assumed that more than one branch of government might be involved in “prescribing” the manner of holding the elections of senators and representatives (as Article 1 is worded).

But even if no state legislature could have the temerity to take over the appointment of presidential electors unilaterally, the inherently antidemocratic nature of the winner-take-all system that almost all of them have adopted begs the question: why is there no grass-roots outcry for reform?

Of course, no smaller state wants to be the first to relinquish the disproportionate voting clout it wields with the winner-take-all approach, no matter how sensible the alternatives. And there are conjectural arguments that if the winner-take-all method were eliminated, third-party candidacies would become far more viable and raise the specter that no candidate would achieve an electoral vote majority (in which case the Constitution says that the House of Representatives elects the president, with each state delegation having one vote – a clown show that, given the current composition of the House, would mean a Trump victory in 2024).

But the greatest roadblock to electoral reform is the same old bugaboo that plagues us daily: entrenched political partisanship. Over the past couple of centuries, the winner-take-all approach has been perceived as favoring one party or another depending on current circumstances, and the favored party has always succeeded in blocking attempts to introduce more rational methods of allocating electoral votes. 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 aged, conservative, less-populous swing states.

It comes down to this: not enough voters are angry that, when it comes to the presidency, the will of the majority doesn’t matter, and that their votes count for nothing unless a plurality of their state’s voters agree with them. The solution to our uniquely flawed method of electing a president has always been at hand. All that’s lacking is the voters’ insistence, state by state, that their legislatures bring it about.

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[1] See A. Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), pp. 20-21 et seq.

[2] See also 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 17 states (mostly blue) and the District of Columbia, representing about 39% of electoral votes, is pending in 10 more states, and would be activated only when states representing at least 50% (i.e., 270) of all electoral votes  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.