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How to fix the Electoral College with a federal law

Protesters demonstrate against President-elect Donald Trump outside Independence Hall November 13, 2016, in Philadelphia.
Protesters demonstrate against President-elect Donald Trump outside Independence Hall November 13, 2016, in Philadelphia.
Mark Makela/Getty Images

If the 538 presidential electors remain faithful, on December 19 the Electoral College will elect a candidate who lost the popular vote for the fourth time in US history. (Other years: 1876, 1888, and, of course, 2000.) This is a disappointment to the more than 65 million voters who gave Hillary Clinton a lead of more than 2.65 million votes over Donald Trump. It also highlights the undemocratic nature of our electoral rules: Votes are weighted by where you live, so a diffuse minority can defeat a concentrated majority.

Could there be a constitutional amendment?

Understandably, this has led to calls for reform. The obvious solution to a constitutional flaw is an amendment to the Constitution to switch to a straightforward popular vote. However, this is unlikely to happen because too many states benefit from this system and can block a constitutional amendment in the Senate or a state ratification of the amendment.

The National Popular Vote Interstate Compact

A second-best option is a proposal for a sufficient number of states to commit to giving their electoral votes to the plurality winner of a national presidential vote, regardless of the outcome in their specific states. Ten states and the District of Columbia have agreed to this plan, and together they total 165 electoral votes. However, these states are not obliged to follow through until enough states to make a majority of the Electoral College commit to the pact.

And therein lies the challenge. The 10 states that have signed on so far are as blue as a Hillary Clinton victory party, and neither swing states nor Republican-dominated states seem in a hurry to sign up. So advocates for reform may want to consider other options.

Why the Electoral College distorts votes

First, let's specify why the Electoral College distorts the popular vote. There are two features that combine to make this possible:

  • Presidential electors are allocated on the basis of congressional delegations, and thus incorporate the misrepresentation of the Senate.
  • Almost every state grants all its electors to the plurality winner of a popular vote. The exceptions are Maine and Nebraska, which assign one elector to each congressional district and two electors to the statewide winner.

Thus, winning a plurality in a low-population state is magnified twice: first by the formula for allocating electors to states, and then by the "unit" or "general ticket" or "winner take all" rule for choosing which electors are chosen in each state. These features are based in this clause from Article II, Section 1:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress

Note that the Constitution does not specify how states choose electors. Indeed, in the early republic, state legislatures often chose presidential electors directly. The use of the unit role makes swing states like Ohio and Florida especially valuable to both parties, so these states receive the benefits of heavy campaigning by presidential candidates. For sure states like California and New York, the unit rule allows it to maximize support for the candidate preferred by most of its voters.

The unit rule as a prisoner's dilemma

Arguably, a more democratic system would be for each state to allocate electors on the basis of the popular vote in the state, so a candidate who gets 50.7 percent of Florida's two-party presidential vote would get 15 of Florida's 29 electors.

But switching to a state-by-state proportional system is a prisoner's dilemma: Even if the legislators in each state agree that cooperating in a more democratic scheme would be better overall, the legislators in each state would be even better off if every other state switched to a proportional scheme while their own state uses the unit rule. (Here, Maine and Nebraska are noteworthy for their attempt to cooperate.)

One way to resolve a prisoner's dilemma is for an external authority to force actors to cooperate. That is where Congress comes in.

The US Congress has a role in verifying the electoral votes sent by each state. This includes a formal process written into the US code dating back to 1887 for challenging the electoral votes from any specific state. The current challenge process is that a challenge made by at least one member of the House and one senator triggers a two-hour debate and simple-majority vote, with the challenge failing unless it receives an affirmative majority in both chambers.

My proposal: Congress could amend this statute so that if a state does not allocate its electoral votes proportionally, its electoral votes are subject to a challenge that requires a two-thirds supermajority to overcome. If the challenge is sustained, a set of electors based on a proportional vote would be substituted instead.

Congress would need to specify what "proportionality" means when allocating electors. What percentage of the popular vote does one need to get a presidential elector in a three-elector state, for example? It would also be less controversial if there were an external actor, such as the Federal Elections Commission, which certified state laws as conforming or not to the congressional guidelines ex ante.

Is it constitutional?

Generally, one should be skeptical when someone proposes a simple solution to a seemingly intractable question. This is no exception. If enacted, this law would almost certainly face a constitutional challenge. Before reviewing both sides, let me start with a disclaimer: I am not a lawyer or constitutional expert.

Arguments against constitutionality

As quoted above, Article II section 1 clearly grants the legislature of each state discretion over how electors are selected. In an 1892 decision, the Supreme Court specified that this clause granted a wide range of discretion:

The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.

Furthermore, threatening to deprive a state of its electoral votes if it fails to adopt the "right" method is arguably coercive. Here, the Medicaid section of the Supreme Court's 2012 Obamacare decision may be applicable: If the punishment for a state that refuses to conform is out of proportion, it is an infringement on federalism.

Arguments for

Any good constitutional argument features competing values. In this case, the competing value is equality of citizens, as embodied in the "equal protection" clause of the 14th Amendment. Larry Lessig makes this case against the unit rule. Key to his argument is that the unit rule (or winner-take-all) laws adopted by states are the main source of distortion.

One could further defend the law by arguing that state legislatures' discretion applies to the process of choosing electors — popular vote, legislative selection, poker tournament, Hunger Games competition — but Congress may protect the equality of citizens by ensuring that the substantive allocation of electors reflects the preferences of each state's voters.

This proposal would not completely ensure the equal effect of each voter in presidential elections, but it would substantially reduce the distortion caused by the use of winner-take-all rules in 48 states and the District of Columbia.

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