A Realistic and Achievable Fix for the Electoral College

Almost every thoughtful citizen has realized by now that the current structure of the Electoral College is no longer really necessary or functional. Sadly, most of the proposals to correct the problem would require constitutional amendments or would be easy to defeat on constitutional grounds. They would either abolish the college or render it irrelevant—a good lawyer would simply argue that both approaches come to the same thing. It is time for a different approach.

Before giving all my arguments, let me simply state my simple solution. I am not an expert on constitutional law, but I believe it has serious merit.

Instead of removing the college, simply expand it in a fair and simple way: each of the 50 states, and DC, and each of the five official territories (now not represented at all), would be assigned a single additional electoral vote. That would create a total of 56 new electoral votes (currently more than any single state) as part of recognizing that our nation is greater than the sum of its parts. These votes would go to the winner of the national popular vote. They would be a significant counterweight to the unfairness that now exists, however, they would not necessarily pre-determine an outcome—any solution that did that would be unfair.

For example, under the system I propose, Gore would have defeated Bush in 2000, while in 2016, Trump would still have narrowly prevailed over Clinton. My proposed fix would remedy narrow electoral college wins that were contrary to the popular vote when there are relatively small electoral vote advantages. It would let the national popular vote decide the winner in these cases.

My rationale for this approach is simple. When our nation gained independence, we were governed by the “Articles of Confederation.” This treated the US as a mere collection of equal states: a vague coalition rather than a nation. This system proved unwieldy and unworkable. In response the US constitution was written. The very writing of the constitution proved a simple point that is crucial to my argument—a nation is more than the sum of its parts.         

It is worth repeating this simple fact: It is the core of my argument. A nation is more than the sum of its partsand yet the electoral college doesn’t recognize this at all. The vote of the college is the total votes of individual states. That is a very serious injustice and problem. The idea of the nation transcends the idea of a collection of states and should be recognized by the balance of the electoral college.

To understand this, we need to revisit the founders rational for the electoral college—it was to protect states with small populations from the tyranny of states with big populations. To a large extent, the Senate itself (two votes for every state regardless of population) already does that.

Think about this fact: the seven smallest states (total population of about 5.6 million people) have 14 senators. That is one senator for each 401,000 people. California alone has about 41 million people but only 2 senators. That is 1 senator for every 20.5 million people. In other words, the small states are already vastly overrepresented.

 But in these times, the electoral college overdoes the protection for small states even further. The Founders were sensitive to the idea that a majority could tyrannize a minority. But since they recognized that danger, they certainly didn’t intend that a minority could likewise tyrannize the majority. That is essentially what happens today. The state of Wyoming, with a population of about 550,000 people has three electoral votes, while California, with a population of over 39 million has 55 electoral votes. In other word, every elector in Wyoming represents 183,304 people, while and elector in California represents 726,136 people. Count up more small states and compare them to big states and the imbalance just gets worse

My proposal (a single new electoral vote to each state—and the territories) can hardly be described as unfair. It can’t seriously be argued that this unfairly disadvantages any given state in any way. It would, however, have several positive effects. First, it gives some representation to territories with US citizens who otherwise are not represented at all. Second, it helps relieve the imbalance (that has developed over the time since the founders did their work) between large and small states. Third, small states still get more representation proportionally than any large state. Fourth, in the case of the state voting with the winner of the national popular vote, there is no harm done, while in the case of the small state voting against the national vote winner, it gives representation to citizens of that state who were in the minority.

Elections like Gore v. Bush in 2000 cause enormous national division. It is easy to see why. After the necessary recount was called off, Bush won the state by a little more than 500 votes. That meant he was given all 29 of Florida’s electoral votes, which gave him a winning margin of just 5 electoral votes. Under my system, Gore would have won by some 50 electoral votes—a margin that would have lent credibility to his presidency which Bush forever lacked. Finally, and maybe most importantly, the change I propose would help mitigate the tendency for candidates to narrowly target “swing states” while their campaign effectively ignores the rest of the country. Few candidates could ignore the temptation of over 55 electoral votes. All these effects would make our elections fairer and more representative.

The beauty of the plan lies in this. The number of electors per state is not set in stone. It varies with population already. So, assigning an extra electors per state (with the stipulation that they vote for the winner of the national popular vote) doesn’t violate any obvious constitutional principle. The 23rd amendment gave electoral votes the District of Columbia (even though it is not a state) and the very existence of the constitution itself suggests that the will of the nation, as reflected in the national popular vote, should be given serious weight as we choose the leader of our nation.

While not perfect, my proposal would help eliminate situations where a few electoral college votes cancel out the will of many millions of popular votes. It would help create a deeper sense of national unity, and the deciding factor in very close elections would reflect the will of the majority of voters—not be handed to the courts to decide. At the same time, the purpose of the electoral college would not be totally cast aside.

Further, my proposed fix would help create a buffer against sinister forces (both internal and external) who micro-target narrow groups of voters in key states in order to garner a very narrow electoral college majority for a candidate who lacks broad national support. As malicious foreign actors increasingly try to meddle in our elections, and social media gives them increasing leverage, this is a vital point. In the end, my proposal would make our electoral system more fair and truly representative. That is something our nation’s founders always strove for.

Even if my proposal did require a constitutional amendment, it seems such an amendment would be much easier to achieve than any attempt to abolish the Electoral College or nullify it by requiring electors in all states to vote for the winner of the national popular vote.

Finally, given Trump’s current attempts to coerce GOP controlled state legislatures into changing how they certify their states’ electoral votes, a standard national process should be created to make sure all states play by the same rules in a national election.

See also:

Withered Now: Dead-End for the GOP

Vote! A Final Plea for Sanity and Liberty

A Clear and Present Danger

6 thoughts on “A Realistic and Achievable Fix for the Electoral College

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  1. It requires enacting states with 270 electoral votes to award their electoral votes to the winner of the most national popular votes.

    All votes would be valued equally in presidential elections, no matter where voters live.
    Candidates, as in other elections, would allocate their time, money, polling, organizing, and ad buys roughly in proportion to the population
    Candidates would have to appeal to more Americans throughout the country.

    Every vote, everywhere, for every candidate, would be politically relevant and equal in every presidential election.
    No more distorting, crude, and divisive red and blue state maps of predictable outcomes, that don’t represent any minority party voters within each state.
    No more handful of ‘battleground’ states (where the two major political parties happen to have similar levels of support) where voters and policies are more important than those of the voters in 38+ predictable winner states that have just been ‘spectators’ and ignored after the conventions.
    We can limit the outsized power and influence of a few battleground states in order to better serve our nation.

    The bill would take effect when enacted by states with a majority of the electoral votes—270 of 538.
    All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes among all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.

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    1. Hi,

       

      Well, you have sent me a lot of data. Thank you. I believe Isigned a petition in support of this plan about 3 years ago. I had somereservations about its ability to withstand legal challenges even then. Ihaven’t heard much since. I certainly hope you can get it done.

      I notice that once again you have not given a single reasonwhy my plan is “totally unrealistic.” You just supplied more info on your plan.

      It is difficult for me to get a clear picture of the currentstatus of your plan from the data you provided. You speak of “the bill” being passed bystate legislative committees, and about support in various “jurisdictions,”etc. Can you simply give a list of states where this has been approved by thelegislature and signed into law? (That is, where it is a “done deal”–ready to go into effect the minute you get the state with the 270th vote on board.) 

      These are the basic problems I see for the future—both ofthem legal.

      First, while state legislatures may approve things, thatdoes not mean that those things can’t be legally challenged. A challenger wouldprobably have to prove that they were in some way damaged.

      Second, in many cases, it is not possible for people to suefor damages until they have actually incurreddamages. The moment the popular vote of state X is overturned in favor ofvoters outside the state (the popular vote), I suspect there will be an oceanof legal challenges for disenfranchisement of voters. Big donors on the losingside might also be able to claim substantial financial damages as well. Judgesare noxiously unpredictable and if even one puts a hold on the certification ofa certain state’s electoral votes, the whole election might be thrown intochaos. Multiply this over several states and you have real problems. 

      I think my plan is much easier to defend. It is hard toargue that the addition of a single vote to each state substantially harmsanyone in particular—especially when balanced against the good of the nation asa whole. “Eminent Domain” already recognizes the standing of the good of themany…

      States do not have the ability to arbitrarily increase theirnumber of electors—these are assigned by the Federal government. That suggeststhat the Federal government could (by mere majority legislation) add a singleelector per state and territory as my plan calls for.

      Remember, if the Electoral college can’t establish a winner,the decision then falls to the House and Senate. That solution would be purely partisan and incredibly divisive. This shows that the nationalgovernment already has a paramount interest and standing. If they choose tocreate a simple, fair mechanism where the national popular vote decides theoutcome, they should be free to do so.

      So once again, I think my plan has all the advantages ofyour plan, while avoiding some obvious legal pitfalls.

      It is an interesting question.

      All the best,

      Gilbert Schramm

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  2. The bill retains the constitutionally mandated Electoral College and state control of elections, and uses the built-in method that the Constitution provides for states to make changes

    The Founders created the Electoral College, but 48 states eventually enacted state winner-take-all laws.

    The U.S. Constitution says “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .”
    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

    The normal way of changing the method of electing the President is by state legislatures with governors making changes in state law.

    Historically, major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation’s first election in 1789. However, now, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.

    In 1789, only 3 states used the winner-take-all method (awarding all of a state’s electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all method is now currently used by 48 of the 50 states.

    In 1789, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state.

    In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.

    The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes.

    States can, and have, changed their method of awarding electoral votes over the years. Maine (in 1969) and Nebraska (in 1992) chose not to have winner-take-all laws

    The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state’s electoral votes.

    The National Popular Vote bill is 73% of the way to guaranteeing the majority of Electoral College votes and the presidency to the candidate who receives the most popular votes in the country, by changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

    It requires enacting states with 270 electoral votes to award their electoral votes to the winner of the most national popular votes.

    All votes would be valued equally in presidential elections, no matter where voters live.

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  3. The National Popular Vote bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).

    Since 2006, the bill has passed 41 state legislative chambers in 25 rural, small, medium, large, Democratic, Republican and purple states with 284 electoral votes, including one house in Arizona (11), Arkansas (6), Maine (4), Michigan (16), Minnesota (10), North Carolina (15), Oklahoma (7) and Virginia (13), and both houses in Nevada (6).
    The bill has been enacted by 16 small, medium, and large jurisdictions with 196 electoral votes – 73% of the way to guaranteeing the majority of Electoral College votes and the presidency to the candidate with the most national popular votes.

    When enacted by states with 270 electoral votes, it would change state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), in the enacting states, without changing anything in the Constitution, again using the built-in method that the Constitution provides for states to make changes.

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  4. The idea is totally UNrealistic.

    Now we need to support, vote for, and urge state legislators in states with the 74 more electoral votes needed, to enact the National Popular Vote bill for the 2024 election.

    Most Americans think it is wrong that the candidate with the most national popular votes can lose a presidential election.
    We don’t allow this in any other election in our representative republic.

    The bill is 73% of the way to guaranteeing the majority of Electoral College votes and the presidency to the candidate who receives the most popular votes in the country.
    The bill changes state statewide winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

    It requires enacting states with 270 electoral votes to award their electoral votes to the winner of the most national popular votes.

    All votes would be valued equally in presidential elections, no matter where voters live.

    NationalPopularVote.com

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    1. Hello,

      Thanks for responding to my blog post. I am always happy to engage in friendly debate with serious readers. Before I get started, I should clarify something: I would love to have the electoral college abolished and have presidents elected by direct popular vote. It would make presidential elections much fairer, more difficult to rig, and (as I noted in my piece) the small states already have significant protection from the tyranny of small states by virtue of the senate.

      That said, I don’t understand several of your points.

      First, at the start of your comment you baldly assert that my proposal is totally “UNrealistic.” You never once say why. I find that odd…

      You go on to offer an existing proposal that is fraught with problems. Most of those problems were already noted by me in my piece. It is not easy to get a constitutional amendment—have we even ratified the ERA yet?

      Let’s be realistic. It is not a given that Democrats will gain a majority in the Senate. Red states will not willingly embrace any reform of the electoral college. Many key states have Republican controlled state legislatures and governors—they will not willingly support reform of the current “winner take all” rule. The situation brewing up with the Supreme Court suggests you won’t get any help there.

      In my view, the reform must come fairly quickly. That means it must seem completely fair and have clear advantages and no be easily challenged on constitutional grounds. I think my idea does all that.

      The District of Columbia, Puerto Rico and the other territories have close to 4 million voters. They have no serious representation in the House or Senate. The 23rd amendment gave 3 electoral votes to DC. They have no senators, so it seems fair to give them one more electoral vote. The other territories have no senators or electors at all (taxation without representation?). My proposal would give them some representation. Finally, my plan would give a little weight to those voters who voted for the loser of the electoral vote in states that backed the loser of the popular vote. That only seems fair. Everyone is included.

      Except in the most bizarre and improbably scenarios, i twould largely correct most of the problems currently caused by the Electoral College.

      Your proposal, on the other hand, could probably be defeated by a fairly pedestrian lawyer. If my state (Oregon) were to compel its electors to vote for the winner of the national popular vote, when the people of the state had voted for the other candidate, your idea would simply toss their votes out and disenfranchise them. I hardly think that would stand a strong legal challenge.

      There is another problem as well. To change the “winner take all” rule would probably require action by individual states. It is unlikely that this could happen all at once (if indeed it happened at all). So, states that favor reform of the college (presumably Blue states), might change their rules so their electoral college votes would be assigned to the winner of the national popular vote. In that case the system would be totally haphazard: states that maintained the “winner take all” rule would distort the results of electoral college even further. Presumably, this would further weaken the power of blue states with big populations. That would create a total fiasco.

      Similar proposals to simply allocate electoral votes proportionally to the popular vote face a similar hurdle. Unless all states do it at the same time (highly unlikely), it will just create chaos.

      Finally, you make this series of points:

      1.     The bill is 73% of the way to guaranteeing the majority of Electoral College votes and the presidency to the candidate who receives the most popular votes in the country.

      My Question is 73% of what?:States? State governors? State houses? Polls? Petitions? Electoral college votes?

      2.     The bill changes state statewide winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

      My Question is: Since we don’t truly have a “national election” and elections are under state jurisdiction, can the federal government legally change the rules of the states? (I think not. I think this builds in decades of legal dispute).  Further I don’t know what the “built-in method” is. The states have some latitude in choosing electors, but it is not clear federal action can supersede that power.

      3.     It requires enacting states with 270 electoral votes to award their electoral votes to the winner of the most national popular votes.

      My Question is: Does this mean that when you say your proposal is 73% on the way to completion, that you really mean that you have 73%of states that have 270 electoral votes? (Doesn’t that mean that you really have only 73% support in 50% of the states…) If your idea is so far along, why doesn’t it have an official title? (Like SR something or other?)

      4.     All votes would be valued equally in presidential elections, no matter where voters live.

      My Question is: Doesn’t my proposal value each vote even more effectively? It doesn’t cancel out the majorities in states that favor the loser of the popular vote—it only balances them out against the idea that the national will matters—that a nation is more than the sum of its parts. It also enfranchises the people in the territories and DC.

      Finally, if you count the electoral votes in just 10, fairly reliably “Blue States,” (CA, NY, NJ, IL, PA, MI, MA, MN, MD, WI)  you get to almost 200 electoral college votes(about the number you say you have when you say you only need states with only“74 more” electoral college votes). But so what? These states are “winner take all” already, and they almost always determine and are in line with the national popular vote. In these cases, your proposal doesn’t really change anything. So far, it seems your idea has only garnered support from this lowest hanging fruit.

      The real problem is in states like Texas and many others where many millions of Democratic votes are completely nullified by relatively small winning margins of Republicans. Collectively, those margins can cancel out huge national popular vote advantages resulting in what I think we all want to avoid—a tyranny of a minority.  

      My overall assessment is that your plan is far from being achieved and (like the ERA), will run into increasing headwinds the closer you get to your goal. The fact that you are only at 73% of the halfway mark, already bodes ill. And the whole strategy lays out the prospect of decades of legal wrangling. Your idea is nowhere near doable by 2024.

      I fully grant your sincerely good intentions in terms of making the whole system fairer. I think my idea, however imperfect, does that in a much more quickly achievable way. I stand ready to hear your answers to these questions and hear some real arguments about why (since it addressed many of these issues up front) my proposal is “totally unrealistic.”

      Best wishes,

      Gilbert Schramm

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