In a world plagued by nescience and a drought of rationalism, logicality is as barren as a Saharan mile. Finding foliage in such a wasteland is no easy task; but alas, here you are, in what could merely be a mirage.
In April 2019, U.S. Sen. Brian Schatz (D-HI) introduced a constitutional amendment to abolish the system of electing presidents by the electoral college, to be replaced by a simple popular vote structure, where the mere plurality of votes for a given candidate would crown them as the next commander-in-chief. Schatz was joined by fellow senators Dick Durbin (D-Ill.), Dianne Feinstein (D-Calif.) and Kirsten Gillibrand (D-N.Y.).
“In an election, the person who gets the most votes should win. It’s that simple,” Schatz said at the time. “No one’s vote should count for more based on where they live. The Electoral College is outdated and it’s undemocratic. It’s time to end it.”
The push for such a sweeping change in election law did not happen in a vacuum, nor did it arise as a policy platform of some in the Democratic Party overnight. As of late, the desire to elect presidents via popular vote has mostly stemmed from two of the last three presidents being elected despite receiving a fewer number of votes than their opponent: In 2000, Al Gore received 500,000 more votes than George W. Bush; in 2016, Hillary Clinton received nearly three million more votes than Donald Trump.
Critics argue that the Electoral College serves a purpose, mostly to protect the will of the entirety of the country, so that the largest states do not overwhelm the voices of the smallest. Some might even argue that abolishing our current system is unconstitutional, and lies incongruent with the vision of the Founding Fathers.
Regarding the latter, there is actually nothing constitutionally wrong with changing the system.
“There is no constitutional requirement for states to allocate their electoral college votes entirely to the winner of their state’s popular vote in the ‘winner take all’ manner that most states currently do,” said Rebecca Glazier, a political science professor at UALR’s School of Public Affairs. “States can allocate their electoral college votes however they want. Maine and Nebraska both have modified proportional representation systems of vote allocation, but every other state has ‘winner take all.’”
Glazier goes on to note that a constitutional amendment — like what Schatz put forward — is required to eliminate the Electoral College, but she wagers that is “very unlikely to happen.”
In Arkansas, state Sen. Greg Leding (D) leaves no secret to his desire to see the popular vote decide presidential elections.
“The Electoral College is flawed in a lot of ways, but its biggest problem is that [it] doesn’t reflect the will of the voters — and that was by design,” he told Arkansas Money & Politics. Leding purports that the very founders who designed the electoral system didn’t trust the American people (many of whom were not well-educated at the time) as a whole to have enough information to make an informed decision. “They also worried that a populist president who appealed directly to people could gain too much power. Those are both all-too-real concerns — but the Electoral College does nothing to address either of them. Instead, it’s come to concentrate influence in a handful of swing states, and it’s denied the presidency to the winner of the national popular vote twice in the last two decades.”
Glazier echoes some of these sentiments, saying that people who view the current system as “less than democratic” have some legitimate cause for argument on that front. “To be clear, it is — and that is how it was intended.”
But simply arguing textualism for what the founders intended is not, by itself, merited. They technically at first intended the winning candidate to become president, and the runner-up to be vice president. That has since, obviously, changed.
In the election of 1800, Thomas Jefferson and Aaron Burr finished with an electoral tie, and the House of Representatives chose Jefferson. Congress would then pass an amendment to ensure that didn’t happen again.
But in 1824, a new test arose. The presidential election between Andrew Jackson, John Quincy Adams, William Crawford and Henry Clay finished so close that none of the candidates had enough electoral votes to claim the presidency (131 at the time). The closest was Andrew Jackson with 99, but John Quincy Adams ended up becoming president, chosen by the House in what Jackson described as a “corrupt bargain.”
In 1876, Samuel Tilden amassed more of the popular and electoral vote than Rutherford Hayes (184 to 165), but was one short of the magic electoral number, 185. Instead of abiding by the 12th Amendment and sending the decision to the House, the time’s Congress derived an Electoral Commission, which ultimately chose Hayes.
In plain sight, the originalism of what the founders set forth has been tested, failed on occasion and adapted to fit after failure (only to fail again). So there, in fact, is precedent for altering the path to the presidency — at least to some degree.
The Room Where it Happens
Alexander Hamilton wrote in Federalist Paper No. 68 that the Electoral College was a compromise initiated at the Constitutional Convention between large and small states.
“It wasn’t some carefully crafted solution; it was a clunky compromise,” Leding said. “And in a country where government is of the people, by the people and for the people, why on earth would we not let people decide who serves us as president?”
Merits of intention aside, it does seem fair to, once again, ask the question: Are we electing presidents in the right way?
The trials and errors of the 1800s identified flaws with the system. Many of such instances do not apply to today, but a whole host of other potential detriments have appeared in their place. What was meant as a compromise to protect small states has impeded majority rule.
A state like California has one electoral vote per approximately 718,000 people, while a state like Wyoming has one per 190,000. A parallel argument on the opposite side of the political coin, Texas has one electoral vote per 763,000, while Vermont has one per 203,000. A vote cast in a more populous state can mean four or five times less than one cast in a less populated one. That may “protect” the voices of small states on paper, but it also discounts the voices of others. And, unless a state is designated a “battleground,” their voices don’t matter much to anyone, by default. Biden and Trump aren’t hosting dueling rallies at states in “flyover” country. The national media doesn’t have reporters on the ground interviewing voters in North Dakota. It’s the usual suspects only that matter every cycle: Florida, Ohio, Pennsylvania, etc.
What has become a partisan argument could also become flip-flopped, because for as much as the system as it currently stands fascinates with sentiments of defending the “little guy,” it actually doesn’t. An aspiring candidate needs only 11 states to win the White House on this road to 270 — California, Texas, New York, Florida, Pennsylvania, Illinois, Ohio, Michigan, Georgia, North Carolina and New Jersey. That person could lose in every other state and cede the popular vote by any hypothetical number one can think of and still win. In the modern era, it would likely be a Democrat to accomplish this. As Texas becomes more purple, it’s not outside the realm of possibility.
For legislators like Leding, all of this is more of an argument for a complete overhaul.
“I think the cleanest, fairest fix is to abolish the Electoral College,” he said. “Amending the Constitution should be difficult — but it shouldn’t be impossible. Unfortunately, I think we’re at a place where amending it is out of the question.”
He and Glazier both note that the National Popular Vote Interstate Compact (NPVIC) offers a potential remedy.
The NPVIC is a coordinated effort between states to guarantee each’s electoral votes to the candidate who receives the most votes nationwide, if necessary. As it stands, 15 states have signed onto this plan, totaling 196 electoral votes between them — 73 percent of the 270 needed to claim victory.
“But because the electoral college has become such a partisan issue, it is unlikely to get much more support,” Glazier noted.
“We’ve seen legislation [in Arkansas] to join the compact in the past, and I’m confident we’ll see similar legislation in the future,” Leding said. “I’m less confident the General Assembly will pass it.” Leding has his eyes on Texas to potentially change some Republican minds if the state turns blue.
But, others wonder if there might be a compromise to make, akin to the original words of Hamilton.
One such example is to simply reapportion the 538 total electoral votes based on updated population size. California would move from 55 to 65 votes, Texas from 38 to 44, Arkansas from 6 to 5, and so on. This would not represent sheer population, as noted in one such model’s footnotes:
“Each state receives electoral votes equal to the size of its congressional delegation. That delegation is comprised of two senators and one representative for each congressional district in the state. The number of congressional districts is fixed at 435, with the districts reapportioned across the 50 states, based on population, after each census. Each state must have at least one congressional district, leaving 385 districts to be allocated by a mathematical formula. (The next Census will take place in 2020, with any changes in electoral votes being effective with the 2024 presidential election. The above rules mean no state can have fewer than three electoral votes or, put another way, 385 electoral votes are allocated based on population, with 153 (including three for the District of Columbia) essentially fixed. The net effect of this is that smaller population states are overrepresented in the Electoral College, while larger states are underrepresented.”
By that methodology (which does have the above flaw), Trump would have still defeated Clinton in 2016 at 303 to 235.
Another popular compromise that has picked up steam is divvying up electoral votes by each state’s own popular vote. For example, Trump won 60 percent of the Arkansas vote in 2016, so he and Clinton would have split the state proportionately. If we factor out decimals, Trump would get four of Arkansas’ electors and Clinton two.
Under that system, there would have been no clear winner in 2016; Trump would have 267 electors to Clinton’s 265.
In either scenario, Glazier notes another flaw: participation.
“The trick is to get all of the states to do it,” she said. “Otherwise, you would have a collective action problem. Imagine if California agreed to this but Texas didn’t. Then California would be giving a few extra votes to the Republican candidate by splitting up its delegation, but Texas would be staying a solid Republican block.”
Neither of these examples would fix the modern problem of a winner receiving fewer votes than the defeated like the simple proposals of Schatz, Leding, and their ilk. And as much as the partisan divides of this moment like to paint passions for the popular vote as ridiculous, it’s really not. Virtually every other election in the United States is done so by the most votes versus the least. We don’t create intrastate electoral systems to elect senators by county or congressional district; simply the most votes for that senate candidate, statewide.
Either way, proponents of a strict definition of democracy have a case to be made. One finds it easy to sympathize with a Republican in California, fruitlessly casting a ballot for Republican candidates every four years, only for that vote not to count in the slightest as the Associated Press calls the state for the Democrat five minutes after the polls close. Or a Democrat in Mississippi feeling that same frivolity. Any of the aforementioned revisions to the current system that involve some version of a popular vote would give those political minorities in hyperpartisan strongholds more of a voice, not less of one. It would make our elections more interesting and equitable. Not to mention, most of America supports electing a president by mere popular vote — a tally that has remained the majority for some time now.
It might even alter the way presidents govern — with a fair and balanced hand that knows each vote for or against them matters.
Let Us Abolish the Electoral College (The Hill)
By Dan Glickman
“I have argued for decades that we need to get rid of the Electoral College. I am not alone in holding this perspective. But we need bipartisan support in Congress, a constitutional amendment and a majority of the states to agree.”
The Electoral College Is Not the Outlier Its Critics Insist It Is (National Review)
By Charles C.W. Cooke
“Progressives love to say “no other country does this!” when complaining about America. Often, they are right. America’s system is indeed different from most others, particularly when it comes to its separation of powers, the contents of its Bill of Rights, and the strength of its judicial review.”
By Dave Roos
“The House approved a constitutional amendment to dismantle the indirect voting system, but it was killed in the Senate by a filibuster.”
Five Common Misconceptions About the Electoral College (The Atlantic)
By G. Alan Tarr
“Defenders of the Electoral College argue that it was created to combat majority tyranny and support federalism, and that it continues to serve those purposes. This stance depends on a profound misunderstanding of the history of the institution.”
Deserts for Trees is a recurring editorial segment from Arkansas Money & Politics contributing editor and AY About You editor, Dustin Jayroe.
Editor’s Note: The opinions expressed in op-eds are those of the authors and do not necessarily reflect those of Arkansas Money & Politics or About You Media Group.