Well we've done it again. For only the fourth time in our nation's history, but the second time in just 16 years, we will inaugurate a President of the United States who won a decisive victory in the Electoral College, but who did not receive a majority of the actual votes cast by citizens. Back in 2000, we viewed this result as the rare by-product of what we thought to be a contentious election and a closely divided electorate. Now, I suppose we might wax nostalgic for those halcyon days of "civility".
The "victors" will surely claim that the Electoral College performed exactly as it was designed - it mitigated the ability of the dense urban areas to dominate the larger but less populous areas of America, and to sublimate the needs and challenges of those areas to those of the so-called "elites". The "losers" will contend that the Electoral College is an anachronism - born of a time when the tyranny of kings was a very real threat, and when New York was two-days' ride from Philadelphia. In my humble opinion, neither view is entirely correct.
In response to the many talking heads and pundits on both sides, not to mention countless posts on social media (however ill-informed), I decided to undertake my own examination of the history, purpose, and effectiveness of the Electoral College. This is certainly not a "scholarly" work, and I will make no attempt to properly footnote and attribute everything I say here. I will simply assert that any claims of fact that I make may be verified easily by reliable sources accessible to any American with an Internet connection. I avoided any "opinion" sites or editorializing, and stuck to primary documents such as the text of the U.S. Constitution itself, or to objective sources such as the decennial Census of the United States.
It is my hope that this article will help to educate and enlighten the discussion, and that whatever ultimate conclusions I achieve may further inform discourse and present additional food for thought.
What is the origin of the Electoral College?
The Constitution defines the basic structure of our government as it continues to be used today. In fact, the U.S. Constitution is the oldest national Constitution still in use. In Article I, Section 2, the Constitution stipulates that there will be one elected Representative for every 30,000 persons, with a minimum of one Representative per State. A Person is defined as "Whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." This is the famous clause treating slaves as three-fifths of a person. Section 3 of Article I further stipulates that there will be two Senators from each State.
The importance of the apportionment of Representatives and Senators to this discussion becomes apparent in Article II, Section 1, which states that the number of Electors from each State shall be equal to the number of Senators and Representatives to which the State is entitled. Electors are defined elsewhere in the Constitution as those persons responsible for electing the President and Vice President. It may easily be understood from reading the Constitution and other historical documents that the Founders were very concerned with striking a balance between Federal government power, with the efficiency and unity it can provide, and retaining power within the several States to ensure no abuses due to over-centralization of authority.
By having a Senate that provides equal representation for every State, a House that provides representation based on population, and requiring a great deal of conferencing and reconciliation to bring forth legislation, the Founders' design helps to protect the interests of both small and large States, with a slight bias toward the small States. It is clear from their writings that the Founders did not want it to be easy for a large, populous State to run roughshod over the rights of a smaller State. Thus, a State with a comparatively tiny population such as Rhode Island had, initially, a total of three elected members of Congress, while a very populous State like New York had eight. This may still seem like a large difference, but in proportion to its relatively small population at the time, Rhode Island had a disproportionate number of elected representatives.
Later Amendments to the Constitution made small but important adjustments to the apportionment of Representatives. In the "Articles" introducing the first ten Amendments to the Constitution, which we know as the Bill of Rights, the Founders took the time to correct some of the computations of apportionment from the original document as they foresaw the population of this young Country growing rapidly in the future. Specifically, they expanded upon Article I, Section 2 of the Constitution by stating that there would be: one Representative for every 30,000 persons until there are 100 Representatives, then no less than 100 Representatives and no more than one Representative for every 40,000 persons until there are 200 Representatives, and no less than 200 Representatives and no more than one Representative for every 50,000 persons thereafter.
Every ten years, per the Constitution, there would a Census of the United States, which would result in an apportionment of elected Representatives based on the population of each State. Thus, the House grew steadily from an initial membership of 65 in 1789 to nearly 400 after the Census of 1900. However, dramatic changes to "Apportionment" were about to take place.
Changes to Apportionment in the Early 20th Century
After the Census of 1910, it was clear that the next Apportionment of Representatives would take the size of the House up above 400 members. Even with only counting adult citizens, there were justifiable concerns about the size of the House becoming unwieldy. These concerns were, in fact, VERY justifiable as today's House would have over 5,000 members if the Founders' original formula of one Representative for every 50,000 people had been maintained!
Therefore, The Apportionment Act of 1911 fixed the House of Representatives' size at 435 Members - the size that it remains today. That Act also established procedures for redistricting, based on population, but this task was later delegated to the States, which is a subject of much political wrangling in recent decades. The Reapportionment Act of 1929 further established a method of using population for apportioning the 435 Representatives among the States after each census, but redistricting was left to the States, as previously described. Finally, the Apportionment Act of 1941 made the apportionment process after each census "automatic", to ensure that Congress did not need to pass a new Apportionment Act after each decennial census, which had been the subject of lengthy delays and missed deadlines in the preceding couple of decades.
Congressional Apportionment Today
Each State is apportioned a number of seats in the House that corresponds to its approximate share of the aggregate population of the 50 States. However, every State is constitutionally guaranteed at least one seat. There are an additional five delegates to the House of Representatives. They represent the District of Columbia and the territories of American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands. Puerto Rico also elects a resident commissioner every four years. Because the size of a State's total congressional delegation determines the size of its representation in the U.S. Electoral College, congressional apportionment also affects the U.S. presidential and vice-presidential election process. That is, the number of Electors from each State is affected directly by Apportionment in the House.
The modern method of Apportionment is somewhat complex, mathematically - and it doesn't even address the contentious redistricting process at the State level. It is just the methodology used to divide a fixed number of Representatives among a growing and shifting population, and it ensures that every State has at least one Representative even if, after rounding, it would seem to be entitled to none. As a result, as of May 2016, there is approximately one Representative for every 720,000 people in each State, on average. However, States with smaller populations (Wyoming, Vermont, etc.) still get at least one Representative. Plus, of course, every State still gets its two Senators.
When the current state of congressional apportionment is extrapolated to the number of Electors, the difference between how many people are represented by each Elector from small versus large States becomes dramatic. As you can see from the chart below, small states have a lot fewer people represented by each Elector than large states. But remember, each Elector's vote counts equally in determining the President and Vice President, whether they are voting on behalf of fewer than 200,000 people or more than 700,000. This creates a disproportionate impact on the Electoral College for small states; however, as pointed out earlier, this was part of the Founders' design to avoid tyranny.
Abolish the Electoral College?
Given the disproportionate impact of less populous States described above, and its potential for dramatic effect on the outcome of very close elections (such as those we saw in 2000 and 2016), some have called for abolishing the Electoral College. The argument in favor of abolition certainly seems compelling on its surface - namely, that the Electoral College has outlived its usefulness in an age of instantaneous information and transcontinental travel times measured in hours rather than days or weeks. It surely seems anachronistic to have a group of people travel to Washington, D.C. to cast their electoral votes in what is almost always a symbolic gesture of affirmation of what took place weeks earlier.
In addition, the modern Electoral College has created a phenomenon of "swing states" - States that are closely contested, which receive the bulk of the major candidates' attention. In recent elections, those States have included places like Florida, Ohio, and Pennsylvania. However, some of our most populous States - California, New York, and Texas - receive comparatively little attention. Why? Because they are reliably Democratic or Republican, so, the theory goes, there is little point in investing substantial time and money to win big States that you can count on to show up for a specific party. However, this aspect of the current process ensures that a lot of citizens' voices do not get heard - from both large States and small ones.
Furthermore, if narrow wins in a handful of "swing states" can cause a solid Electoral College victory for a candidate who receives substantially fewer individual votes from citizens, one might characterize the Electoral College as being more a defeater of the will of the electorate rather than a reflection of it. Since we now have the capability of tabulating votes rapidly and accurately, and relaying those tabulations to central authorities in seconds rather than hours or days, why not simply let the people decide as a whole?
How about returning to the Founders' vision?
The Founders envisioned our Representatives representing a lot fewer people than they do at present. As cited above within this article, Electors currently represent about 700,000 people, versus the 50,000 people specified in the opening Articles of the Bill of Rights.
In Federalist No. 55, James Madison argued that the size of the House of Representatives has to balance the ability of the body to legislate with the need for legislators to have a relationship close enough to the people to understand their local circumstances. He went on to suggest that such representatives' social class be low enough to sympathize with the feelings of the mass of the people, and that their power be diluted enough to limit their abuse of the public trust and interests.
"... first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many;..."
Clearly, he recognized that if Representatives were so far removed from their constituents, they would be less likely to relate to them. Furthermore, this would provide the proper and desired balance between the equality among States in the Senate. However, over time, it has turned out that there are good reasons for having limited the number of Representatives - most importantly avoiding a House with over 5,000 members! Madison himself argued against the assumption that more representation is always better:
"Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionally a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. ... In all very numerous assemblies, of whatever character composed, passion never fails to wrest the scepter from reason."
There are currently a total of 538 electors, corresponding to the 435 Representatives, the 100 Senators, plus three electors for the District of Columbia. This is what creates the famous "270 electoral votes needed to win" phenomenon of which we are reminded quadrennially. Returning to the original vision of the Founders - even if only for the electoral college - would surely create a system so unwieldy as to be useless, as Madison himself pointed out.
So then what IS the problem with the current Electoral College process?
Almost all States have chosen electors on a "winner-take-all" basis since the 1800's. Under the winner-take-all system, the State's electors are awarded to the candidate with the most votes in that state. However, more recently, Maine and Nebraska adopted the "Congressional District Method" (CDM). Since electors are awarded to each state based on the number of House seats plus the number of Senate seats (always two), the congressional district method allocates one electoral vote to each congressional district. The winner of each district is awarded one electoral vote, and the winner of the state-wide vote is then awarded the state's remaining two electoral votes.
The CDM has been used in Maine since 1972 and Nebraska since 1996, but, since both states have adopted this approach, the statewide winners have swept all of the state's districts in every election except 2008 and 2016. In 2008, Nebraska gave four of its electoral votes to John McCain, but Barack Obama won a single electoral vote from Nebraska's 2nd congressional district. In 2016, Maine gave three of its electoral votes to Hillary Clinton, but Donald Trump won a single electoral vote in Maine's 2nd congressional district. In neither case did the method have a substantive effect on the election; however, it was used in only two states - both with relatively small populations (and a correspondingly small number of electoral votes).
If the CDM had been used more broadly in 2016, it might have had a very interesting impact in some "swing states". For example, Michigan would have given 11 electoral votes to Trump and 5 to Clinton; Ohio would have gone 14 to 4 for Trump, and Pennsylvania 14 to 6 for Trump as well. Thus, in those three battlegrounds, which gave all of their combined 54 electoral votes to Trump, a CDM-based vote would have gone 39 to 15 in Trump's favor. Of course, California has as many electoral votes as those three states combined; however, Trump would have picked up 7 of the 54 electoral votes in California if the CDM had been used.
As observed earlier, population per electoral vote is totally unbalanced from state-to-state. Small states and rural areas already have a disproportionate effect on the election by virtue of the Apportionment methods described previously, and the "winner-take-all" system exacerbates that effect. This is because even the tiniest States (population-wise) get three Electors. However, the Constitution and its various Articles and Amendments provides no mechanism or requirement for apportioning Electors - that task is left to the States. On the one hand, this is a bad thing in that it is just left up to the states to decide, and every state potentially could use a different method. On the other hand, this makes change a lot easier to achieve - particularly on an incremental basis. One state at a time can choose to adjust how they apportion Electors, with no need to have a national agreement on a Constitutional Amendment.
If we were to abolish the Electoral College completely, then every close election could involve at least one NATIONWIDE recount of votes. This would cause a repeat the lengthy process we witnessed in Florida in 2000 - but across the whole nation. Close elections could remain undecided for MONTHS on a regular basis. However, if we instead push to have electors apportioned proportionately in every state using the CDM, then recounts might only be required in very close races within individual Congressional districts - a much less onerous process. This would also mean that all states become worthy of attention since even those that go overwhelmingly for one party or the other might still have some electors that are "up for grabs". The Founders' vision would be more fully realized, and the voices of ALL citizens would have a chance to be heard.
The Call to Action
If all of this makes sense, then there is a simple course of action you can take - write to your STATE legislators and ask them to consider proportional allocation of Electors from your state using the Congressional District Method. You can paraphrase this article, or just link right to it directly.
If you need help figuring out how to contact your elected officials, I recommend you go to
https://www.usa.gov/elected-officials, which provides mechanisms for determining how best to contact them.
Together, through collective action, we can ensure the voices of all citizens are heard!
UPDATE: FairVote (
http://www.fairvote.org/) performed an analysis of the Congressional District Method, as well as other options for replacing the current method of apportioning Electors. They conclude that the Congressional District Method would not solve the problem effectively and present their own preferred alternative. I am not entirely convinced by their analysis as the principal objection cited is that gerrymandering of congressional districts means there are presently fewer "swing districts" than "swing states". (To learn more about gerrymandering, see
https://en.wikipedia.org/wiki/Gerrymandering_in_the_United_States or just search online for "
gerrymandering".)
There is widespread agreement that gerrymandering needs to be addressed as well. So, I would not want to dismiss what may be the most effective method of improving our electoral process simply because another "broken" part of our system makes it less than perfect in the short term. Let's hope that improving our government is an iterative and ongoing process, and that gerrymandering is also resolved in the not-too-distant future. I suggest you read what FairVote has to say and come to your own conclusions.
What we all certainly agree upon is that the current system is not an effective way of representing the will of ALL citizens, while protecting the rights of citizens in smaller states not to have their rights trampled upon. Get involved, get informed, and take action!
