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Tweaking the Electoral College
by Lionel E. Deimel

Americans elect their president in a strange way. In most countries that elect the chief executive, the winner is the candidate receiving the most votes in a nationwide election. In many cases, an absolute majority is required, sometimes necessitating an additional runoff election. This seemingly straightforward system is nothing like an American presidential election.

The Constitution, as amended, sets out the fundamentals of the process of electing the president and vice president, though it is silent on many important details:

[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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

[Amendment XII] The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;— The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

[Amendment XX, Section 3] If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

[Amendment XX, Section 1] The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

[Article II, Section 1] The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Because the Constitution has been amended over time, not all the provisions related to presidential elections can be found in one place. Whereas a constitution can be amended by replacing existing text—the constitution of the Episcopal Church is modified this way—the United States leaves the original text alone and appends amendments that change the substance of the document. In the text above, I have omitted the superseded text. I have also omitted provisions concerning who may vote. Many administrative details of the electoral process are determined by statute, most notably the recently amended Episcopal Count Act.

In fact, the Founding Fathers, despite their all-men-are-created-equal rhetoric, were wary of democracy. Eschewing any system of direct democratic election, the Constitution as originally written does not even guarantee that citizens vote on who should become the president and vice president. Voting is placed in the hand of electors, who presumably are well-respected men of integrity. (Do not laugh.) And the number of votes cast by each state depends on the number of Senators and Representatives from that state in Congress. This system has always favored states with smaller populations to some degree. This is because, although the number of congressional representatives reflects the relative population of a state, all states, even the smallest, are allotted two senators.

It is also worth noting that, when the Constitution was drafted, it was not anticipated that political parties would be developed or that the number of viable parties would nearly always be two. Our Founding Fathers would be aghast at how we choose candidates for public office.

As things have developed, citizens actually vote for electors pledged to particular candidates. In most cases, the winning electors vote for the candidates to whom they were pledged, but rarely, an elector turns out to be a “faithless elector” who votes for someone else. This winner-talk-all system of allotting votes in the Electoral College is employed in 48 states. In Maine and Nebraska, however, an electoral vote is allotted to each congressional district and two votes are allotted to the winner of the popular vote in the state.

The composition of the Electoral College—consisting of those who vote for president and vice president—and, in fact, the composition of the Senate itself, represent a compromise hammered out in the Constitutional Convention. The more populous states agreed to a seemingly less than fair electoral scheme to gain the acquiescence of the smaller states, which feared the power of their larger neighbors. In the 1790 census, the state with the smallest population, Delaware, had only 7.9% as many people as the most populous state, Virginia. The framers of the Constitution likely did not anticipate that the population disparity among states would become as great as it is today. According to the 2020 census, the least populous state, Wyoming, has only 1.5% of the people of the largest state, California. The unfairness in the Senate and in the Electoral College has, therefore, gotten much worse over time. Now, for example, both Wyoming and California  have two Senate seats, 2% of the voting power in the upper house. Those two Wyoming senators represent 0.174% of the U.S. population. The California senators represent 11.9% of the U.S. population. Likewise, Wyoming voters have much more say than California voters in how we govern our nation.

Complaints that out presidential electoral system is undemocratic and should be replaced by a straightforward plan in which everyone’s vote counts the same irrespective of where they live are longstanding. There is strong sentiment for replacing the Electoral College for a nationwide vote for president and vice president. Such a change would require a constitutional amendment, however, and such an amendment would assuredly be opposed by politicians and residents of the smaller states.

An interesting scheme to assure that the winner of the popular vote is in fact elected president is the National Popular Vote Interstate Compact. If states collectively having enough electoral votes to elect a president sign on to  this scheme, those states would cast all their electoral votes for the popular-vote winner irrespective of the popular vote in their individual states. Not only would implementing this scheme be subject to non-frivolous legal challenges, but Americans generally might see it as an end-run around the Constitution and therefore illegitimate, morally, if not legally. (Of course, is an end-run around the Constitution.) Particularly upset would be citizens and politicians in compact states whose citizenry actually voted for the candidate who lost the popular vote. I don’t expect that the National Popular Vote Interstate Compact will ever be implemented.

Because our politics are so polarized, it is the conventional wisdom that adopting a constitutional amendment on virtually any topic in 2023 is essentially impossible. I’d like to propose an amendment that might have a non-zero chance of being enacted because it doesn’t do away with the Electoral College entirely. (I won’t propose an actual text for such an amendment here.) In my plan, electoral votes are countered as they are now, but additional electoral votes will be added to the total of the candidate having the largest popular vote. If, for example, we were to add 15% of the total available electoral votes to the votes otherwise earned by the popular-vote winner (approximately 80 electoral votes, making the total number of electoral votes 618), both Al Gore (in 2000) and Hillary Clinton (in 2016) would have become president. Since the 2000 race was so close, even a much smaller percentage would have secured the election for Al Gore. If desired, the percentage could be set by statute.

I would prefer to scrap the Electoral College entirely and amend the Constitution to elect the president by national popular vote. Besides, as been amply demonstrated in the 2020 election, the baroque system by which we elect our chief executive has too many points that allow for mischievous manipulation to potentially affect the election.

It is time to choose our president by a less bizarre method than we currently use.

— LED, 8/20/2023

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