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3 big hurdles to Electoral College reform

Democrats now have the incentive change the system. There are many moving parts.

Congressional clerks open certificate envelopes from different states during a joint session of the 113th Congress to count the Electoral College votes January 4, 2013, on Capitol Hill in Washington, DC.
Alex Wong/Getty Images

oxLike most Americans (see below), I have never been a fan of the Electoral College. And like most Americans, I figured there is little that could be done about it. Even after 2000, when the popular vote winner was thwarted by the institution, reform efforts went nowhere.

This time could be different. 2000 was a very close race between two fairly popular candidates. It didn’t seem obvious that such a reversal would happen again soon. Now it’s happened twice in as many decades.

Regardless of how the long-shot efforts to use the Electoral College against itself (such as the so-called “Hamilton Electors”) play out on Monday, reform is on many minds. Reformers face three big questions.

  1. Should they try to amend the Constitution or just tinker through legislation?
  2. What sort of replacement would be preferable to a large enough coalition to ratify it?
  3. Is there political will to change it at all?

A backdoor fix?

Amending the Constitution is hard, requiring two-thirds supermajorities in both houses of Congress and then ratification by three-fourths of the states, or 38. So it’s understandable that movements have tried to find a way around it.

The strategy so far most likely to succeed is the National Popular Vote Interstate Compact, in which several states with control of at least 270 electoral votes would commit to voting for the popular vote winner, regardless of the result in their own states. According to Article 1, Section 10 of the Constitution, Congress must approve interstate compacts, but it could do so by a simple majority vote. So the NPVIC offers the opportunity to change the Electoral College with fewer states and a lower voting threshold in Congress. But even this is a hard thing to achieve. Supporters don’t yet have enough states or a vote of Congress.

Writing last week, Greg Koger proposed a different end run around the amendment procedure, suggesting that Congress could pass a law requiring states to allocate their votes proportionally (see more below).

Either of these plans to enact reform would face legal and even constitutional challenges. For now, I’m willing to grant that they could be done legally. The bigger problem is that these institutional redesigns are constrained to deal with only part of the problem, but the Electoral College is a complete system.

For instance, the popular vote compact does not do away with faithless electors. We are right now seeing an unprecedented systematic effort to persuade electors to switch.

More importantly, under the compact, not all states would be voting with the popular vote winner. Only those who signed on would be. This means that different states would be literally following different rules, and the states in the compact would effectively be imposing their will on the rest of the country. That’s essentially what happens now, when swing states impose their outcome on states that cannot affect the outcome. But it would not be perceived that way.

If we care at all about democratic legitimacy or political divisiveness, this is a problem. At best, the compact would hasten action to amend the Constitution for a more complete fix, and for that reason alone it may be a good move politically. But it’s not a long-term solution.

A constitutional amendment might be unlikely, but it’s not impossible. Two existing amendments involve the Electoral College. It would be the best way to deal with all of the problems with the Electoral College. And there are many.

There’s a lot on the table

The most important thing to remember is that the Electoral College, like nearly everything in the Constitution, is the result of compromise and political maneuvering. What the framers put together has several moving parts, and the system has evolved to have several more.

I think there are at least four things wrong with the Electoral College, but not everyone agrees. A resolution would require a compromise across these issues.

1) Faithless electors

You’d think it would be doubtful that anyone would defend faithless electors, but 2016 is revealing that if you haven’t fixed the other parts of an unfair system, people will want to use it to address that unfairness.

And they aren’t exactly wrong. Either you embrace the rules as they are written in the Constitution, in which case you must accept that electors are technically independent — or you impose some extraconstitutional norms of democracy, in which case why stop at faithless electors?

But in a better system, I doubt anyone would want free-agent electors.

2) Allocation of electoral votes to states

Each state has the same number of Electoral College votes as they have representation in Congress. (The District of Columbia, which lacks representation in Congress, is given the minimum of three votes.) This creates an obvious bias toward small states, since every state gets two senators regardless of population. In other words, while House seats are assigned based on population, every state, even the smallest, gets a “Senate bonus” of two electoral votes.

Some people see this as a feature and not a bug. Why should large states with large urban populations get all the say? We have a federal system, so every state should have some voice.

But a more proportional allocation wouldn’t let large states dominate. If you stripped states of their Senate bonuses, the results in 2016 would have been a 190-to-246 Trump victory. In that allocation, the states with the 10 largest urban areas in America (including red Texas and Georgia) would still be 52 electoral votes short of a victory. A winning coalition could ignore some states — just as they do today. But it would still need many states to win.

3) Winner-take-all

In all but two states, electoral votes are allocated winner-take-all.

This is an odd institution for those who worry about giving all portions of the country a voice to defend. Each state is ignoring the preferences of as many as half its own voters. Compare Illinois with Pennsylvania, each of which has 20 electoral votes. In Illinois, Clinton won with an overwhelming 16.95 percentage point margin, earning all 20 votes. That’s treated as equivalent to Trump’s narrow 0.72-point margin in Pennsylvania. Similarly, Clinton’s narrow 1.52-point win in Minnesota is worth the same 10 electoral votes as Trump’s 18.64-point shellacking of Clinton in Missouri. In both states, many voters backed the other candidate and were ignored.

The natural solution here is to move to proportional representation, which Koger recommended last week. But that’s not so simple.

In principle, proportionality is straightforward. If you get 60 percent of the popular vote, you should get 60 percent of the electoral vote. But how should we handle fractions? How should we count minor parties? Since most democracies use some sort of proportional representation, there are several ready solutions, but they give slightly different answers. The following figure shows the results in the past five elections using two common formulas for finding proportionality. The first is the Hare greatest remainder formula, which allocates fractional seats (or electoral votes) to the parties with the largest such fractions. The second is the d’Hondt highest averages method, which is more complicated and less generous to minor parties.

Estimated electoral vote allocations under proportional representation. Data from David Leip’s Atlas of U.S. Presidential Elections (http://uselectionatlas.org).
Estimated electoral vote allocations under proportional representation. Data from David Leip’s Atlas of US Presidential Elections.

The main lesson from the figure is that, yes, proportionality more closely represents the popular vote. But also, in the two cases where the popular vote was not reflected by the Electoral College, proportionality prevents any candidate from winning a majority.

That makes sense, if you think about it. In 2000, we had essentially a tie. When you start rounding numbers that are close to 50-50, you might get 50-50. With the Hare formula especially, the large third-party vote eats into the top two candidates, which further prevents a majority.

Even under the current rules, this is possible. But it’s far less likely. A too-often-overlooked feature of the Electoral College is that it exaggerates victories. This is why Donald Trump’s historically very narrow win feels like a landslide to some. Under proportionality, without the exaggeration, a virtual tie will return a real tie much more often.

And it’s a problem because the rules for what happens in such a case are maybe the worst part of the system.

4) Contingent elections

This is the kind of trivia that a lot of people seem to know, so say it with me: If no one wins a majority, the House of Representatives selects the president from among the top three electoral vote recipients, with each state voting as a bloc.

This is, of course, an astoundingly undemocratic mechanism. It is even worse than the bias in the Electoral College itself. The current House is 57 percent Republican. But 66 percent of states have a majority of Republicans in the delegations. If each Utahn citizen’s vote is worth 3.6 times that of a Californian in the Electoral College, it’s worth 7.8 times as much if each state is treated equally.

It’s no surprise that the first time this mechanism was needed, in 1824, the result was decried as a “corrupt bargain” that put the second-place popular vote and electoral vote winner in the White House.

This is the biggest problem with Koger’s legislative solution. It might be able to bind states to be proportional, but it probably can’t create a new contingency plan if no candidate gets an Electoral College majority. For now, as with faithless electors, the terrible contingency plan isn’t a big deal because it’s unlikely to come into play. But it’s still lurking in the system.

If we don’t want to elect someone with a minority of electoral votes, this isn’t the way. Perhaps a runoff. It’s also not unheard of simply to go with the plurality vote winner if they reach some threshold short of a majority.

A root-and-branch reform of the election system is the only way to get rid of all of these problems. The popular vote is one path, one that I would support. The presidency is the one office everyone votes for. There’s no reason it can’t be the one thing that doesn’t transcend America’s otherwise extreme federalism.

But other paths are reasonable, too. I’d probably be more comfortable with the bias toward small states if votes were proportional. But that works only if we have a better tiebreaking procedure, since we’d be using it more often. In the unlikely event that the Hamilton Electors succeed in stopping Trump, you can be sure that Democrats won’t back a reform binding electors unless the reform also addressed other issues with the system.

Political will

So reformers have a nearly impossible task. A shortcut around the amendment process isn’t satisfying. Could an amendment happen?

In the short term, no. In the long term, maybe. (And in the very, very short term, a long-shot maybe.)

As I noted above, support for ditching the Electoral College is generally high — except for in 2000 and right now. When the electors contradict the popular vote, some people suddenly see the merits of the system.

Data compiled from polls housed at the Roper Center. Answers to various questions comparing the popular vote to the Electoral College, including: “Do you feel the current system of using the Electoral College to determine the President is best, or would you rather see the Presidency decided by the popular vote?”

More precisely, Republicans do. As you can see in this figure, support for change is generally fairly high, but right after the reversals, Republicans suddenly like the Electoral College. I am sure if a Democrat were to benefit, Democrats would react similarly. Yet that preference faded as the 2000 election faded into memory, a pattern we may see again as we leave 2016 behind us.

Since Republicans now control Congress as well as a majority of state legislatures, the path to reform goes through Republicans. So no reform.

But Republicans probably won’t control everything forever. I suspect that the seesawing we’ve seen in the past handful of elections may settle down a little as the economy recovers, but the tide will turn. Suppose, in the meantime, the Democrats are denied or nearly denied the White House again.

It’s generally accepted that in order to get rid of the Electoral College, both Democrats and Republicans will need to get burned by it. But in a zero-sum political system, that means both also have to benefit from it. If it’s bad for both, then it’s good for both.

No one has replaced the Electoral College, despite general dissatisfaction with it. That’s because no one has had the incentive to do much. Now Democrats have the incentive.

I think a major lesson from 2016 for the Democrats will be the importance of electoral integrity. Everything from controversial “voter ID” laws to, yes, the Electoral College will become an issue for Democrats. And it has the potential to be a winning issue.

If electors deny Trump the White House on Monday, the issue will be on the table very soon. That would be a genuine crisis, and change happens in a crisis. Both Democrats and Republicans would have lost in the same year. But short of that, reform takes time, and it takes work.

Until now, neither party had much incentive to do that work. Now one does.

NOTE: Mischiefs of Faction writers and Georgetown professors Hans Noel and Jonathan Ladd will be discussing the Electoral College on Facebook Live this Monday. Bring your questions to the Georgetown University Facebook page at 3 pm Eastern.