It is generally agreed, by most political scientists, pundits, and many politicians (of both parties depending on whether their ox was gored in the last election) that the Electoral College is flawed. In two out of the last 5 Presidential elections the Electoral College has selected the winner who received a minority of the popular vote. In the most recent election, Ms. Clinton received almost three million more votes that President Trump. In 2000 Mr. Gore received almost 544,000 more votes than former President Bush. In both cases the will of the people was ignored by the peculiarities of the Electoral College.
The Electoral College is a vestige of the many compromises adopted by the drafters in writing the Constitution. It was seen as a bulwark against the sheer numbers of the populous of states like Virginia, New York, and Pennsylvania. It was seen by the slave states as a means of preserving the peculiar institution. It was a check on what some have come “tyranny of majority”; the sheer strength of numbers of the larger states against the small voting population of the smaller states. But Mr. Madison also feared another more insidious form of tyranny, “tyranny of minority.” Where a minority thwarts the will of the majority and takes actions that are contrary to the commonweal of the nation. We have seen this in our history with the passage of the eighteenth amendment which outlawed distilled spirits and with slavery. It can also be argued that the tyranny of minority was baked into the Constitution by allowing slave states to count slave as 3/5 of a person.
While there is certainly a moral case to be made about eliminating the Electoral College, the reality is that getting a Constitutional Amendment passed by both Houses of Congress and ratified by three fourth (38) of the states would be nigh on impossible in these partisan times.
However short of amending the Constitution, Congress (though doubtful) or the states could change the manner in which the electoral votes are awarded. Currently, in most all of the states it is a winner take all scenario, whoever receives the most votes of the popular vote automatically receive all the electoral votes. In practice this denies those who voted for the losing candidate a vote for President and Vice-President. For example, Ms. Clinton received over a third of the votes in the State of Alabama, yet she received no Electoral College votes from the State of Alabama. Likewise, President Trump received a third of the vote in California and none of the Electoral College votes.
Let me proffer several possible ways that the States could reform the awarding of electoral votes.
The first method, what I shall call, the Congressional method, would award electoral votes based on the number of Democratic and Republican members of Congress. In the previously highlighted example of Alabama with a total of 9 Members of Congress (7 Members of the House and 2 Members of the Senate) based on that breakdown would have awarded 1 vote to Ms. Clinton and 7 votes to President Trump. In California it would have resulted in Ms. Clinton receiving 41 Electoral College votes and President Trump 14. (See Figure 1 below)
This method, like the current method is flawed as it is quite possible that a Congressional District held by either a Republican or Democrat may in fact vote for someone of the other party in the Presidential election. As far as Senators are concerned you could award those based on the party affiliation of the Senator, but you could also end up with a situation where the popular vote in a State was cast for a party other than the party of one or both Senators. Using this method and number of MOC in the 2014-2015 Congress Ms. Clinton would have 236 Electoral College votes verses President Trump’s 299 Electoral College votes. Using this method would not have changed the outcome of the election as President Trump would have received more than the 270 required to win.
For the purpose of projection, I also used this method for the current Congress which will be sitting during the next Presidential election which would have the Democrats receiving 279 electoral votes vice 258 for the Republicans. (See Figure 2 below).
The other method which I shall call Electoral College % of Votes. This method would award electoral votes by the percentage of the vote each candidate received in each state. In this example the aforementioned states of Alabama and California would see their electoral votes awarded by the percentage of the vote each candidate received. In Alabama Ms. Clinton received 35% of the vote and President Trump 64% of the vote. Multiplying the total number of Electoral College votes by the percentage each candidate received Ms. Clinton would receive 3 Electoral College votes and President Trump 6. In California Ms. Clinton won 66.13% of the vote and President Trump 33.87% of the popular vote. Using the percentage of popular vote Ms. Clinton would receive 36 Electoral College votes and President Trump 19 Electoral College votes. Using this method would have changed the outcome of the election as the electoral count would more closely have reflected the popular vote with Ms. Clinton receiving 270 Electoral College votes and President Trump 265 Electoral College votes. In the popular vote Ms. Clinton received 51.11% of the popular vote and in the Electoral College using this method she would have received 50.38%. President Trump received 48.89% of the popular vote and using this method would receive 49.62% of the Electoral College vote. The deviation between the popular vote and Electoral College vote for both candidates is .74%. (Given that Math is not my strongest subject area I won’t try to figure how we get such a deviation, though upon reflection I suspect that Third Party and write in candidates account for the deviation.) In the end this method more closely reflect the close nature of the popular vote, but in the end would have awarded the Presidency to Ms. Clinton. (See Figure 3 below).
Another method that is being advocated as a solution, and the method which I believe is the least democratic of the proposals would have states award their electoral vote based on who won the and is being called the National Popular Vote. The problem with this proposal is it gives more weight to the wishes and desires of the most populace states and in effects nullifies the vote and voice of those voting for the losing candidate. Whilst it is arguable that this method would prevent the tyranny of a minority as happened in 2016 when states with less population effectively nullified the will of the majority. In effect this method would entrench the will of majority regardless of the desires of the minority. As I have already stated in a democracy every voice deserves to be heard. There is a possibility that a state who voted for the losing candidate would see the entirety of their electoral votes go to the candidate who won the popular vote. This would effectively nullify the will of the people of that state. It would also encourage candidates to bypass the smaller states, to ignore the issues effecting states with smaller population and most importantly further erode the democratic underpinnings of our republic. Many of our populace are cynical about the proper functioning of government, this proposal would only further alienate and disenchant a portion of our nation’s citizens.
Having given due consideration to this over the weekend, I think the best way forward would be concerted effort to award the Electoral College vote based on the percentage of the vote a candidate receives in each state. In order to do this, it would require a bi-partisan effort to persuade state legislatures to change the method of award their Electoral College vote. At the end of the day it will insure that the large states do not run rough shod over the smaller states, but it will also insure that the small states do not veto the will of the majority.
In a larger sense it has the goodness of insuring that the candidates do not focus their attention solely on the large states where the Electoral College payoff is greatest, but also seek to increase their vote percentage in small states. I would like to think that this method would also result in the return of the center.
I have little faith that this will happen. It seems that both parties are running further and further to the right and left, leaving the sensible center with the choice of either holding their nose and voting for the lesser of two evils (frankly that was the situation for me in 2016) or simply not voting.
Dr. Franklin asked what was created at the Constitutional Convention remarked, “a Republic if you can keep it.” There are days when I wonder if the genius of the founders is lost on our citizenry today and whether our “nation can long endure.”
Recommend that all read or reread Federalists No. 10 by James Madison.
According to my research only Nebraska and Iowa do not award their electoral votes on the basis of winner take all.