The 2016 election was, to state it mildly, a shock to people who believed that Hillary Clinton would easily win and that President Donald Trump had no chance. He won, and Clinton advocates cried foul, citing her popular vote count as greater than Trump’s. It was to no avail. Trump won the Electoral College vote 306 to 232. Why? Because when we vote for a chief executive, we’re really choosing electors from each state who will formally cast a vote for the President based on the vote tally in each state.
Some people think this is an arcane procedure that should be overturned in favor of a popular vote system. What would the Founders of our nation think of that idea? Actually, they told us in the Federalists Papers and in James Madison’s notes on the convention. In them we get a glimpse of what they thought as they shaped our Constitution.
There was much controversy among the Delegates of the 13 states who came together to replace the unworkable Articles of Confederation—our first constitution—with a new one that would create a Federal government with three separate branches whose powers would be balanced. One of those branches was the executive, and there was much debate by smaller states about the selection process.
It was an open secret that George Washington, who presided over the convention, was the favorite for be elected as President under the new governing document. Smaller states like Rhode Island and Delaware were concerned that more populous Virginia and New York would dominate any election of a chief executive, diminishing the voices of smaller states. As a result, a compromise was struck by the drafters of the Constitution to provide a check to ensure the election of the President who would have broad appeal throughout the nation in both large and small states.
An Electoral College would ensure—they reasoned—that the collective popular votes of larger states would not dominate the election of the President. Rather, each state would vote for President using electors. The total number of electors would equal the number of representatives and senators each state had in Congress. So just as the convention Delegates compromised on agreeing that each state would have two senators in Congress—as smaller states wanted—so too compromise was the word of the day in determining how the President would be elected. In both cases, large states agreed to the concerns of smaller ones in an effort to secure acceptance of the new Constitution.
In general, the Electoral College has served the nation well. There have been only five Presidents who won the most electors but failed to secure the popular vote: John Quincy Adams, Rutherford B. Hayes, Benjamin Harrison, George W. Bush, and Donald J. Trump. The two most recent cases have led to calls to abolish the electoral system in favor of a popular vote. That would be unwise. To be sure, the current system has evolved to the point where toss-up states receive virtually all of the attention from the candidates who are vying for electors. We have seen that throughout the 2020 election cycle. But abandoning the electoral college will guarantee that the ten most populous states—California, Texas, Florida, New York, Illinois, Pennsylvania, Ohio, Georgia, North Carolina, and Michigan—will determine the winner. An astute observer would point out, “Well, six of those states are considered toss up states now.” However, in a popular vote system, the top four will consume a candidate’s undivided attention while the rest will be largely ignored.
Nevertheless, reform is needed and one I favor can be done by statute in any state that chooses to do so. No constitutional amendment is required. It’s called the “Congressional District Allocation” system, one observed in Maine and Nebraska today. This approach would apportion the current electoral votes in a state—one elector to each congressional district in the state—and appropriate each to the presidential winner in that individual district, while the two electoral votes that reflect two senate seats in each state would go to the overall winner of the popular vote in that state. So, for example, Virginia has 11 congressional districts and two senators, for a total of 13 electoral votes at this writing. If 6 districts vote for Candidate A, and 5 districts go with Candidate B, and Candidate A further won Virginia’s popular vote, he or she would get two more electoral votes, winning overall 8 to 5. Conversely, if Candidate B won the popular vote he or she would win 7 to 6 electors. This would ensure that every congressional district and state would not be taken for granted.
On Tuesday night, November 3rd, 2020, I suspect many people will be thinking about this and other reforms.
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