Domestic Affairs

Pillars of Electoral Flaws: The Electoral College

This is the third in a series of four articles exploring the history behind, problems with, and solutions to the flaws of the United States electoral system. Read the first and second parts here.

Origin and Structure

The component of the American electoral system that has perhaps drawn the most criticism throughout history is the Electoral College. 

The Electoral College is a formal body that elects the President and Vice President based on votes submitted by a state’s “electors,” officials who are de facto elected through the popular vote for a presidential ticket in each state. Each state — and the District of Columbia, which has three electors — has one elector for each of its Senators and Representatives, meaning that there are 538 electors total, making an absolute majority of 270 or more electoral votes necessary for a President and Vice President to be elected.

The Electoral College was originally crafted at the 1787 Constitutional Convention as a way of tempering “the passions of the people” and granting the less populous South political parity with the North. At the heart of this decision was a compromise between large and small states. States with a smaller population feared that their interests would not be represented properly by any elected President if candidates focused their campaigning efforts solely on large, populous, primarily northern, states with powerful urban centers.

Thus, the Electoral College was born. Since its inception, the body has remained largely static, with its most important change occurring in 1804. The 12th Amendment codified our current structure in which the Vice President is appointed by the President-elect, replacing the previous system in which the candidate with the most votes was elected President while the candidate with the second most votes became Vice President.

Although the Electoral College has been a pillar of American democracy since the nation’s formal construction, it has faced strong criticism since its genesis. In fact, during the 91st Congress (1969-1971), the Electoral College was nearly abolished and replaced with the direct election of the President and Vice President. The bill H.J. Res. 681 was passed in the House of Representatives with a vote margin of 338 to 70, but was eventually defeated in the Senate. Since then, disdain for the Electoral College has only grown, with critics pointing out many of the issues that plague the College today.

Modern Issues

Among the criticisms against the Electoral College is the phenomenon of “faithless electors.” In the vast majority of cases, a nominated elector will vote for the nominee designated by their party, but in certain instances an elector can cast their vote for someone other than the party nominee. This process is forbidden in 29 states and the District of Columbia, although many of these states do not have punishments attached to these laws to disincentivize faithless electors. In fact, only California, New Mexico, Oklahoma, and North Carolina have penalties for casting a deviant ballot, and no faithless electors have ever been penalized. 

The most prominent case of faithless electors occurred during the rancorous 2016 election in which seven electors, the highest number in history, cast their ballots in favor of candidates other than the two deeply unpopular primary candidates, Hillary Clinton and Donald Trump. Among the faithless electors, five voted for people other than Clinton, the victor in their respective states, and two refused to vote for Trump, who won in their states. 

Although the votes from these faithless electors did not ultimately impact the results of the election, the ability for one official, usually chosen by party bureaucrats, to disregard the votes of the constituency they are meant to represent on a whim is a clear flaw in our electoral system which must be mended before a handful of people decide to undermine the democratic process of the United States.

This notion of flaws in the American electoral system extends, in the minds of many, to the Electoral College as a whole. One criticism of the electoral system is that the state in which an individual lives determines how much their vote matters. For example, each vote in Wyoming, a state with a population of 578,759 and three electoral votes, counts far more — four times more, to be specific — than a vote in a state like Texas, which has a population of 29,145,505 and 38 electoral votes.

Ironically, this reality affords certain smaller states the exact advantage that small states feared would be given to large states if the President were to be elected by popular vote alone. Take Iowa, for example, a state of only 3,167,974 people with six electoral votes. Presidential candidates have traditionally fought tooth-and-nail for these votes, payingan outsized degree of attention to this so-called “battleground state.” These are states where votes matter comparatively more due to “purple” levels of partisanship and low population-to-electoral-vote ratios.

Another often condemned aspect of the Electoral College is its winner-take-all method of distributing votes in which, in all states but Maine and Nebraska, all the electoral votes of a state go to a single candidate, even if 49% of the state voted for the other candidate. This method sometimes leads to nearly half of the voter base in a state being effectively disenfranchised. This system is especially controversial in heavily partisan states such as West Virginia and Massachusetts. In these states, voters supporting the candidate of the non-dominant party in the state are disincentivized to vote entirely as their vote will have absolutely no effect on the outcome of the presidential election.

However, not everyone is an opponent of the Electoral College. Supporters of the system often argue that a popular vote alone would see the less populous middle of the country, a largely conservative area, dominated in every election by the more populous coastal states, which are traditionally liberal areas. Another dichotomy pointed to between these two regions is the rural versus urban divide. However, even with the Electoral College, rural areas are largely ignored by presidential candidates. Those in favor of the Electoral College also posit that this system maintains the power of states in relation to the national government, the core principle of federalism. Without the Electoral College, they argue, the nationalization of the central government would be inevitable.

How to Reform the Electoral College

Despite the validity of the arguments in favor of the Electoral College, its previously mentioned flaws in terms of properly and equally representing the people of the United States are too dangerous to be ignored. 

Some argue that the best way to fix these problems is to do what the 91st Congress could not and simply abolish the Electoral College. This would require ratifying a new Constitutional amendment. Passing a Constitutional amendment requires the approval of three-fourths of the states, an undoubtedly herculean task given the deep partisanship in American politics today. A workaround to this is The National Popular Vote Interstate Compact which would simply award each state’s electoral votes to the winner of the national popular vote instead of to the winner of the state popular vote. This would not require a Constitutional amendment but would effectively relegate the Electoral College to a purely symbolic position and enshrine the direct election of the President and Vice President.

However, such a heavy handed solution is problematic as well. Merely doing away with the Electoral College would simply introduce the aforementioned set of problems brought up by the supporters of this institution. Although, there already exists a lack of campaign attention devoted to rural areas of the country, the absence of the Electoral College would turn this deficit of consideration into a complete void of consideration. 

Considering the population density of both coasts of the United States, the states in the middle of the country would likely also have their concerns completely ignored by any potential president. Although these states now have proportionately too much power over the presidential process, having no Electoral College would give the people in this region absolutely no voice in the presidential election whatsoever. Despite the bicameral nature of the United States Congress, this would inevitably grant the president a stronger mandate from the masses and would lead to a tyranny of the majority, something the Founders explicitly tried to prevent.

The solution, then, is to institute in every state the superior system that Nebraska and Maine currently have in place, which is to allocate electoral votes based on congressional districts rather than at a statewide level. Given that electoral votes are based on the number of House seats any state has, no significant institutional changes would need to be made in order to implement this nationwide. Furthermore, this would provide a closer, more representative picture of the actual feelings of voters in any state, allowing Republicans in California and Democrats in Texas, for example, to have their votes for president matter.

The downside to trying to implement this at a federal level, however, is the fact that doing so would require a Constitutional amendment, as the federal government does not presently have the power to tell states how they must allocate their Electoral College votes. An alternative would be for 48 states to either pass legislation that implements this proportional system, something made difficult by the inevitability that a majority party would end up giving up power to the minority party, or pass a ballot initiative to the same effect, another tough proposition given that the people of only 26 states even have the power to propose a ballot initiative of this kind.

Disregarding all of the roadblocks to getting this proportional allocation system passed, were this structure to be implemented right now, it would face serious challenges of its own. Chief among these is legislative partisan gerrymandering, the process of manipulating congressional districts to favor one party at the expense of political minority voters in the area. This problem has plagued the United States system since 1812 and has only increased in scope and complexity since that point. Many states, Texas included, game this system to the extreme, drawing congressional districts that look like unreleased Pokémon. Although recent lawsuits against gerrymandering have been won in states like Ohio, this problem remains rampant across the country and would certainly be all the more potent in a setting where electoral votes were allocated based on congressional districts. 

One might ask, why has gerrymandering not been addressed if it has been a problem all these years? To answer this question, one must look at the two institutions with the power to address the problem at a national level: Congress and the Supreme Court. In the case of Congress, our elected representatives in the House, those who have the power to make laws concerning gerrymandering, are precisely the people benefitting from this process since it is their party colleagues — Democratic and Republican alike — who draw the district lines in most states. This conflict of interest makes representatives largely unwilling to touch this issue, lest they anger their senior party officials. As far as the Supreme Court goes, their answer to the gerrymandering question has also been made clear: gerrymandering is not our problem.

This leaves two existing solutions: take the issue to state court in every relevant state or introduce legislation or direct ballot initiatives to create an independent redistricting commission in every state. Both of these answers come with their own pros and cons. 

First, the success of overturning a gerrymandered congressional map in state court is mixed; although petitioners in Ohio were recently victorious in this regard, many others are not, such as those who were defeated in Idaho in January. Given this variable success rate, this makes the process of litigating against gerrymandered districts each time the lines are redrawn even more difficult, something which would almost certainly need to happen were this method to be considered. A positive aspect of this solution, however, is that simply bringing redistricting cases to state court requires nothing other than a body of concerned citizens with enough funds to do so, although this in and of itself is not the easiest of feats.

Arguably the most simple, yet also imperfect, solution to the problem of gerrymandering is to create independent (i.e., not beholden to a partisan legislature) redistricting commissions through ballot initiatives or legislation. These commissions have been proven to be more effective at creating fairer and more competitive congressional districts than partisan legislatures. Although, it is important to note that not all redistricting commissions are created equally. 

There are three types of commission: those with primary responsibility for drawing district lines, advisory commissions that may only assist the legislature in drawing lines, and backup commissions, who act as final arbiters in cases where the legislature is unable to agree. Currently, there exist 10 states of the first type, five of the second, and three of the third. Although totally independent commissions are most effective in creating fair districts, certain states with advisory commissions, such as New Mexico, have better drawn districts than states in which partisan legislatures control the entire process.

While one might think that the commissions with primary responsibility in redrawing were created exclusively by ballot initiatives, this is actually not the case. In fact, six out of ten of these commissions were formed through legislation. This paints at least a somewhat hopeful picture for the citizens of the 24 states without the power to propose ballot initiatives. It must also be said, however, that in certain cases, a partisan legislature can influence an independent commission, as seen in the case of California in 2011. Finally, it is worth noting that the For the People Act of 2021 proposed that independent commissions be created in all states, but this act was rejected in the Senate by all 50 Republican senators and Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ).

Ultimately, there is no clear path to ending gerrymandering and proportionally reforming the Electoral College in a reasonable way that ensures fair voter representation. There are, however, solutions that we as a people can pursue that push these measures through to victory. Although these solutions are difficult to implement and even harder to achieve, they are worth pursuing in order to preserve the democratic spirit of our nation, which can be encapsulated in the words of our Founding Fathers:

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” – The Declaration of Independence, 1776.

1 reply »

  1. The Fair Vote analysis of congressional district voting asserts, without further numerical detail, that “If it had been used in 2012, Mitt Romney would have won the presidential election over Barack Obama, despite winning 5 million fewer votes nationwide.”

    If this is correct, presumably it was because electoral votes from Republican congressional districts in states such as California (currently 11 of 53 CDs) and New York (8 of 27 CDs) would have exceeded offsetting electoral votes from Democratic districts in states such as Texas (currently 13 of 36 CDs).

    Though one may shudder to imagine the colorless specter of Mitt Romney improbably ensconced in the oval office, the issue is not the effect on one past election, but whether congressional district voting would more accurately represent the voters’ wishes in future elections.

    Arguably, it would.

    Consider candidate Trump’s campaign priorities in 2020. Given the near certainty that all of California’s electoral votes would be awarded to the Democratic candidate, Trump had no incentive to visit the state.

    Whereas under congressional district electoral voting, a Republican presidential candidate would be just as likely to visit California’s Republican-leaning congressional districts as those elsewhere. And a Democratic candidate could productively campaign in the one-third of Texas districts that lean Democratic.

    Texas, under the terms of its 1845 admission to the US, retains the nuclear option of splitting into five states. From a partisan perspective, it would be easy to design two majority-Democratic statelets within Texas, leaving the other three solidly Republican, and producing a net gain of R-party electoral votes.

    Smithsonian Magazine likely is correct that the “everything’s bigger in Texas” mentality makes splitting the state a non-starter. But initiatives such as the National Popular Vote Interstate Compact could provoke such a response, if one party feels it is being structurally marginalized by changes in the allocation of electoral votes.

    https://www.smithsonianmag.com/history/more-150-years-texas-has-had-power-secede-itself-180962354/

    With the federal government largely on catatonic autopilot, any electoral reform will have to come from the people and the states. Continued congressional stasis could empower a move to redesign the whole playing field via a constitutional convention.

    As demonstrated by the original convention in 1787 — tasked only with amending the Articles of Confederation — any crazy thing can happen when a powerful cabal takes charge behind locked doors.

    Like

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