One Person, One Vote, One Nation
A Presidential Pledge Of Fairness: “If I should win the Electoral College, but lose the popular vote, I will offer my opponent a role in my administration.”
Every four years, the nation decries the failings of the so-called Electoral College. Untold numbers of Americans stay home on Election Day, convinced their votes make no difference. Yet despite two centuries of efforts to abolish this system—over 700 bills introduced in Congress—the Electoral College survives intact to this day.
So it’s time to take a different approach. It’s time to be practical. This chapter’s act of courage—a pledge by each presidential candidate that should they win the Electoral College, but lose the popular vote, they will offer their opponent a role in leading the nation—could fix many of the problems of the current system and just might be the stepping stone toward the Electoral College’s eventual abolition.
This pledge requires no changes to the Constitution or passage of legislation. It requires nothing more than an act of courage by just two Americans. Nothing more than a simple, yet bold, promise that the will of the people should count for something.
With this simple pledge, our democracy would be transformed. Millions of disengaged voters would finally have a reason to come to the polls. The candidates would begin campaigning with an eye toward the interests of all Americans, not just the swing voters in the swing states. And perhaps most importantly, the public’s trust in our government would be renewed by the candidates’ commitment to make every vote count.
While this proposal may seem radical on its face—a voluntary sharing of power—there is, in fact, a long history of such conciliatory gestures. Nearly every one of the last ten presidents has brought at least one member of the opposing party into his administration to demonstrate post-election bipartisanship, typically as a Cabinet secretary and once as the United Nations ambassador. John F. Kennedy, after his 1960 victory over Richard Nixon in the closest election in nearly 50 years, did, in fact, offer Nixon a role in his administration (at least temporarily), although Nixon chose to decline. Abraham Lincoln, seeing the need for unity in a time of national crisis, brought his foremost rivals for the presidential nomination into his cabinet in the first term of his presidency.
Regardless of one’s feelings about the presidential candidates—and at this time, in the midst of a presidential election, such feelings are strong—the fact remains that a candidate who has won the support of a majority of the voting public is clearly in touch with the sentiments of a sizeable portion of the American electorate. Not only would the duly-elected president demonstrate a commitment to fairness by offering their opponent a role in their administration, they would benefit by having someone on their team who can be a liaison to those constituencies and provide an understanding of their hopes and fears. That would be a valuable service both to the president’s administration and to the American people.
I acknowledge that, much as it would be an honorable gesture for the duly-elected president to give his or her opponent a role running an arm of the government or representing the United States as an ambassador or diplomat, they simply might not feel that the opponent’s skills match those positions. They might want to create a role more like a special advisor to the president. If nothing else, the president could make a commitment to meet with their opponent on a regular basis to hear his or her views on the nation’s challenges and have a respectful discussion about strategies to meet them.
Frankly, any president would be wise to meet occasionally with their electoral opponent, even those presidents who have won both the Electoral College and the popular vote. It would help them stay in touch with the broad range of political perspectives. The president would be under no obligation to heed the opponent’s advice. But the president might, in fact, be surprised by the outcomes that result by bringing their different viewpoints together.
So a variation of this pledge could be to state: “If I am elected, I will invite my opponent to sit down with me periodically to share his/her views, and in the ‘highly improbable event’ that I am not elected, I will be willing to do the same.” A pledge like this, I would argue, does not require much courage at all; just an open-minded approach to serving the nation.
What Happened To Democracy?
When people talk about the Electoral College, they often ask what happened to “one person, one vote”? Doesn’t the Constitution guarantee us that right? Isn’t that at the heart of our democracy?
The fact is that nowhere in the Constitution do the words “one person, one vote,” or anything approximating it, appear. In fact, the Constitution is quite clear that the states, not the people, elect the president and vice president. The Constitution directs each state to appoint “electors,” who are to meet in their respective state capitols in early December, to cast their votes for president and vice president. Each state’s results are then sent to the President of the Senate, and a joint session of Congress is held on January 6, at which time the votes are counted and the winners of the election are declared.
But wait a minute, some might say, the states appoint the electors? What about Election Day when we vote for the president and vice president? Where does that fit in?
The fact is that on Election Day, we are not voting in a single national election and we are not actually voting for the president and vice president. What actually takes place are 50 separate elections to choose each state’s electors. The fact that the presidential and vice presidential candidates’ names are on the ballot is purely informational. For example, New York State’s election law reads: “Each vote cast for the candidates of any party or independent body for president and vice president of the United States and each vote cast for any write-in candidates for such offices shall be deemed to be cast for the candidates for elector of such party…” And who decides who those “candidates for elector” will be? The leaders of each state’s political parties.
What’s more, while we take for granted the right to vote for those electors, that right is not, in fact, guaranteed anywhere in the Constitution. The Constitution leaves it entirely up to each state to decide how to appoint its electors, stating (italics added): “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…”
As far as the Constitution is concerned, a state could choose its electors by having its legislature play pin-the-tail-on-the-donkey (or elephant, to be fair). In the early days of the nation, many state legislatures actually did choose the electors themselves, without any vote by the citizens. It was only over time that the states gave the right to choose electors to the citizens.
The “winner takes all” method of elections, used by all but two states, is not mandated by the Constitution either. In the “winner takes all” method, the presidential candidate receiving the most votes gets all of that state’s electors, regardless of whether he or she won by one or a million votes. In fact, a candidate doesn’t even have to get a majority of the state’s votes to be awarded all of the state’s electors. Take, for instance, the 1992 presidential election, in which Ross Perot ran as a strong third-party candidate, drawing significant votes in nearly all states. Despite no candidate winning a majority of votes in any state except Arkansas (and the District of Columbia), every single state’s electoral votes went entirely to one of the two major party candidates. In fact, in eight states, the winning candidate did not receive even 40 percent of the votes cast, yet because of the “winner take all” system, he received all of the state’s electoral votes.
The Problems With The Electoral College
So what are the problems with the Electoral College? Why should we trouble ourselves with fixing it? After all, some would argue that the system works just fine. Such proponents, however, are in the minority; most Americans consider the Electoral College to be undemocratic. What’s more, it brings with it a host of other problems. Let’s explore what those problems are.
Inequality
At its core, the Electoral College violates Americans’ belief in equality. The Declaration of Independence may proclaim “that all men are created equal” but our votes for president are not; some Americans’ votes carry more weight than others.
The Constitution allots each state a number of electors equal to the number of its senators and representatives in the Congress. Because every state has two senators, regardless of population, less-populated states get more electors per resident than more heavily-populated states. If we compare the smallest and largest states, the inequality is glaring. Wyoming has around 584,000 residents and 3 electoral votes, giving the state one electoral vote for every 195,000 residents. California, with nearly 40 million residents and 55 electoral votes, receives one electoral vote for every 709,000 residents. The result is that a Wyoming voter has nearly four times more say in the election of the president than a Californian. Compared to California, the motto of Wyoming voters could be “One person, four votes”!
Cynicism & Apathy
Perhaps the most apparent problems with the Electoral College system are the cynicism and diminished voter turnout it breeds. In states where the presidential outcome is a near-certainty due to the historical dominance of one party over the other, voters are less inclined to vote.
California and Wyoming, once again, are good examples of this problem. Wyoming has given its electoral votes to the Republican candidate in every election for the past 50 years. California has given its electoral votes to the Democratic candidate in every election for the past 24 years, with no end in sight as its Democratic majority grows larger in each election. Since most states use a “winner takes all” electoral system, individual voters in these “pre-determined” states believe that their votes makes no difference, regardless of which party they belong to. Even if the election appears close nationwide, voters perceive that their vote is “wasted” because the outcome of their state is virtually certain. Only in the “swing states,” the handful of states with no strong leaning toward either party, do voters feel their vote could make a difference.
Illegitimacy
Two aspects of the Electoral College create the possibility of a perceived “illegitimate president.” Most obvious is the scenario in which the winner of popular vote loses the Electoral College vote and thus does not become the president, an outcome that has occurred more than once in American history. Most recent was the 2000 election, in which Al Gore lost the electoral vote (after a protracted legal battle) despite beating George W. Bush in the popular vote by more than 500,000 votes nationwide. This was the fourth (or fifth) time in our nation’s history that an inconsistency between the electoral and popular votes had occurred, the others being 1824, 1876, and 1888 (and 1960, some argue). While rare, the possibility in any given election that this outcome could occur adds to the nation’s sense of cynicism about this process.
Another less well-known aspect of our presidential electoral system, however, is even more troubling. Known as a “contingent election,” the Constitution declares that if no candidate for president receives a majority of electoral votes, the House of Representatives shall choose the president from among the three top vote-getters (and the Senate shall choose the vice president). That, in itself, should give most Americans pause—handing the selection of the president over to one of the houses of Congress would seem to violate the separation of powers doctrine that is at the heart of our system of government. But the manner of the House vote, as dictated by the Constitution, is even more inequitable than the allocation of electors discussed earlier.
The framers of the Constitution, in a political concession to the smaller states, granted a single vote to each state’s House delegation. Thus, in a contingent election decided by the House, the 584,000 residents of Wyoming, the 626,000 residents of Vermont, the 737,000 residents of Alaska and the 739,000 residents of North Dakota would have an equal say in electing the president as the 39 million residents of California, the 26 million residents of Texas, the 19 million residents of Florida and the 19 million residents of New York.
But that’s not all. Not only is the contingent election grossly inequitable, it also lacks any accountability. The citizens of each state have no direct control over their state’s vote. The members of each state’s House delegation have total latitude to vote as they wish. For the seven states with just one Representative—Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming—one single individual would decide how his or her state’s vote for president should be cast. Adding to the lack of accountability is the fact that rules adopted by the House of Representatives in 1825 stipulated that the voting within each states’ delegations be done in secret. Except in the case of the seven states with just one representative, the public would have no way of knowing how their individual representatives voted.
Even worse is what happens if a state’s delegation is split evenly between Democrats and Republicans voting along party lines. The Constitution gives no guidance for such a case, stating simply that “in choosing the President, the votes shall be taken by states, the representation from each state having one vote.” But the 1825 House of Representative rules do address that situation, and they say that if a delegation is divided, it shall have no vote. By way of example, let’s consider how that would have played out if the most recent presidential election (2012) had ended up in the House of Representatives. Three states—Iowa, Nevada and New Jersey—had House delegations that were equally divided between the two major parties. Assuming that those states’ House delegations would have deadlocked, those states would have forfeited any say in the selection of the president.
The Constitution also dictates that if no candidate for vice-president receives a majority of electoral votes, the Senate votes to choose the vice-president. Since each state has two Senators, regardless of population, the same inequity exists as in the House vote: the smallest states get just as much say as the largest. What’s more, because the Constitution stipulates that when the Senate is deadlocked the vice-president casts the tie-breaking vote, an absurd (and troubling) situation could result. A sitting vice-president running for re-election could cast the deciding vote on whether to grant him or herself four more years in office.
These are not merely hypothetical musings. Congress has selected the president twice already. The first time occurred following the election of 1800 when the electoral vote was tied, and the House narrowly selected Thomas Jefferson over John Adams. The second time followed the election of 1824 in which none of the four candidates running received enough electoral votes for a majority.
The 1824 election is particularly disturbing because the House selected John Quincy Adams despite his having received neither the most electoral votes nor the most popular votes. His 84 electoral votes were well below the 99 received by Andrew Jackson, just as his 113,000 popular votes were well below Jackson’s 151,000. But Jackson’s 99 electoral votes fell short of the 131 needed for a majority, due to 78 electoral votes going to two other candidates: William H. Crawford and Henry Clay. Thus, the election was thrown to the House of Representatives which voted Adams into office. It did not matter that he had come in second, counted by either electoral votes or popular votes; each state’s delegation was free to cast its single vote for whichever of the top three candidates it wished and a majority of delegations chose Adams.
Could this happen again? Without a doubt, in at least two possible ways. The first way would be an evenly tied electoral vote. The 2000 election came close, with a 271-266 electoral result (with one elector abstaining). With just a few shifts in electors, the vote could have been 269-269.
The second way would be if a third-party or independent candidate were to win enough electoral votes to deny either of the major-party candidates a majority, similar to what happened in 1824 with four candidates each receiving a number of electoral votes. With a growing number of Americans today identifying as independents, rather than members of either party—and the increasing disaffection with “politics as usual”—a viable third-party candidate might appear in the near future. According to recent polls, more Americans today consider themselves independents than at nearly any time since the late 1930s. In fact, more Americans today identify as independents (42 percent) than as members of either the Democratic Party (29 percent) or the Republican Party (26 percent). If trends since the year 2000 continue, within 15 years independents will outnumber Democrats and Republicans combined. According to a 2014 poll, that’s already true for millennials (age 18 – 33). In a race with three—or more—competitive candidates, the likelihood of Congress choosing the president and vice president becomes increasingly likely.
Divisiveness
Even when the Electoral College “works”—i.e., the popular vote winner also wins the Electoral College vote—it fosters divisiveness among Americans. This should be no surprise. Divisiveness was built into its design, since its purpose was to maintain the sovereignty of the states. But two hundred years later, now that we are truly one nation rather than a confederation of independent nation-states, the Electoral College has not only outlived its usefulness, it is holding America back.
The winner-take-all awarding of electoral votes in the states is responsible for the notion of “red states” versus “blue states” that feeds today’s hyper-partisanship. But the red-state/blue-state depiction is a distortion; not only does the country contain a diverse mix of political viewpoints, so do individual states. Even some of the states that are most partisan in their voting for president, will at the same time vote in the other direction for their members of Congress or state government leaders. Take Wyoming, once again, as an example. The last time a Democratic candidate for president won the state was 1964; for last 12 elections, the state has gone Republican for the president. Yet, over the same period, Wyoming voters actually elected Democrats to the governorship more often than they did Republicans, with the Governor’s office held by Democrats for 28 years during that time, whereas Republican governors have held the office for only 24 years.
What’s more, the depiction of America as a divided red-blue country ignores the largest single category of voters: those so fed up with politics they don’t vote at all. In the last three presidential elections, the number of eligible voters staying home exceeded the number of votes cast for either of the two major party candidates. If election-night maps included those non-voters, most of the states would be depicted as neither red nor blue, but instead as white, depicting the winner as “none of the above.” Depicting the country as red-versus-blue fosters state-versus-state divisiveness, and it leaves nearly half of the population within nearly every state feeling like “foreigners” in their own homes.
Policy Distortions
Most troubling of all is the potential for the Electoral College to distort national policymaking. The candidates and their strategists are keenly aware that winning the White House depends on winning the “swing states”—those few states in which the popular vote is expected to be close—and they cannot help but be influenced by the particular political dynamics in those states. Today’s technology has made this situation even worse. Through sophisticated use of polling, data analysis, and focus groups, campaigns now develop detailed analyses down to the level of individual voters and can tailor their campaigns to a handful of swing voters in the swing states.
Analysis of past campaigns demonstrates the undue attention presidential candidates pay to the swing states. In The Empirical Implications of Electoral College Reform, authors Darshan J. Goux and David A. Hopkins analyzed the number of public appearances by candidates George W. Bush and John Kerry during the 2004 presidential campaigns. The battleground states of Ohio, Iowa, and Pennsylvania topped the list with 45, 31, and 30 public appearances respectively, while the three largest U.S. states—California, Texas, and New York—were not deemed worthy of even a single public appearance by either of the candidates, despite the fact that together they held over one quarter of the entire U.S. population!
Or look at television advertising. A Washington Post study of the 2012 campaigns showed that out of the $800 million spent on television advertising by the two major-party presidential candidates, $669 million was spent in just five battleground states: Ohio, Virginia, North Carolina, Florida, and Colorado. And how much was spent in California, Texas and New York combined? Less than $250,000.
But does a campaign’s focus on the swing states actually influence a candidate’s policymaking? Susan Page of USA Today believes it does. In 2004, she wrote: “In recent weeks, [President Bush] has made a series of decisions boosting him in states that could be critical to his re-election. Last month, he announced that the federal government would buy back $235 million in offshore oil and gas drilling leases in Florida. He signed a 10-year, $190 billion farm bill popular in Iowa, Missouri and elsewhere in the Farm Belt. And he imposed tariffs of up to 30 percent on imported steel, an important issue in West Virginia and Pennsylvania.”
Page goes on to describe how some of these decisions even went against president’s own stated positions. She cites the Florida decision which would stop oil and gas drilling off the coast of that all-important battleground state, at the same time that the administration was forcefully pushing drilling off the coast of Alaska, considered a sure win for the president, and off of California, considered a sure win for John Kerry.
This quest for votes, at the expense of sound policymaking even irked some of Bush’s own supporters. In the same USA Today article, Page quotes Steve Moore, president of the conservative Club for Growth, criticizing Bush for approving protectionist measures: "One week he's the president of Pennsylvania, and the next week he's the president of Iowa."
Even some prominent politicians openly acknowledge this pandering. Consider the statement by Pennsylvania’s then-senior senator, Republican Arlen Specter, in 2011, when his state was considering adopting the more equitable approach of allocating electoral votes by congressional district, rather than statewide. Specter opposed the move specifically because it would threaten the benefits of being a battleground state, saying “I think it’d be very bad for Pennsylvania because we wouldn’t attract attention from Washington on important funding projects for the state. It’s undesirable to change the system so presidents won’t be asking us always for what we need, what they can do for us.”
Never Again Repeated
Perhaps the most compelling argument against the Electoral College is its failure to ever be copied. In the more than two centuries since our nation’s founding, democracy has spread throughout the world, yet not a single country has chosen to elect its chief executive using our system. Nor has a single U.S. state used this approach to elect its governor. And it’s not due to a lack of opportunities: since the late 1700s, most states have fully revamped their constitutions three, four or even five times. There have been over 230 state Constitutional Conventions. Yet not a single state has modeled its electoral process after the Electoral College. Every state elects its governor by direct popular vote. Can you imagine the outcry if a politician were to argue that some voters in their state should have a greater say about who will be governor than other voters, just because of where they live?
Were The Founders Crazy?
Defenders of the Electoral College often base their arguments on the notion that it represents the wisdom of the constitutional framers, yet ironically those who drafted the Constitution were less enamored of their work than many Americans today, who hold in reverence every word and punctuation mark therein. For four months, the delegates to the Constitutional Convention debated and argued over nearly every detail, and in the end, none of them was entirely pleased with the results. Some delegates walked out of the convention; of the 55 delegates in attendance over the four months, only 39 signed the document. There was dissent even before the convention started. Rhode Island refused to send any delegates at all, opposing the convention’s very premise that a stronger central government was needed. Patrick Henry, famous for his cry of “Give me liberty or give me death,” refused to participate despite his appointment as a Virginia delegate, reputedly saying he “smelled the rat” of “a new monarchy.”
As the framers constructed the Constitution, each section was put to a vote. Of the nearly one hundred votes taken on the various sections, only a handful passed unanimously. Compromises were made on nearly every issue: the structure of the Congress, how members of the Congress would be elected, the powers of the president, how the president would be elected, whether there should even be a single president. Each of these decisions, and more, were fiercely debated. On multiple occasions, the delegates changed their minds, voting for new language that directly contradicted what had been passed earlier.
And of all of the issues considered, those surrounding the nation’s chief executive were the most fiercely contested. Even the notion of a single chief executive, something we take for granted today, was not a foregone conclusion (I discuss this in more detail in Chapter Eleven). But as much as the framers wrestled with the form of the executive branch—a single president, a council, or both—they wrestled even more with the method of selection.
It is often said that the framers rejected a popular vote for the president because of their distrust of “the people.” But in fact, there were many reasons why a presidential popular vote, when proposed at the Constitutional Convention, failed to win support. It is true that some delegates considered a popular vote to be “too much democracy.” Others however, feared just the opposite: that a national popular vote might lead the nation back toward monarchy, with the public susceptible to charismatic, but potentially despotic, candidates. For other delegates, more practical concerns held sway. They questioned the practicality of a national election, given the size of the country and its limited transportation and communications networks. There were no national or even state newspapers, the telegraph was many decades in the future, and travel within and between the former colonies was slow and often treacherous. George Washington barely made it home alive after the Constitutional Convention, his carriage nearly crashing into a flood-laden stream when a rotted bridge collapsed under his horses.
Further complicating the matter were the political tensions surrounding the diversity of voting rights among the states. Some states granted voting rights only to those with a certain amount of wealth or ownership of land, while others granted such rights more broadly. Some states granted free black citizens the right to vote; others did not. The convention had already nearly disbanded over the question of whether slave populations would be included in the count for determining representation in the Congress. The convention was saved only by the “3/5 compromise,” with each slave counting as 3/5 of a person for such purposes, a concession to the slave-owning states to keep them from walking away. In the face of these political tensions, the delegates feared that trying to devise a national popular vote for president might end the convention for good.
Other approaches proposed as alternatives to a popular vote were also problematic. Selection of the president by the Congress was discussed at great length and for much of the four months of the convention was the preferred method. But there was concern that this would undermine the desired independence between the branches of government, by making the president beholden to the Congress. Selection of the president by the state legislatures was rejected because of a general distrust of these bodies by the delegates; the failure of the state governments to resolve growing conflicts among themselves had led to the call for the convention in the first place. Several delegates advocated for the governors of the thirteen states to select the president, but that proposal failed to gain much support. At one point it was even proposed that a small group of members of Congress—selected by lottery—should choose the president, on the idea that the uncertainty of which members of Congress would be involved would maintain the independence of the two branches.
Almost in desperation, as the delegates battled the clock, the Electoral College was devised as a complex set of compromises. It retained the sovereignty of the states by giving them the primary power of selection. But it tempered this power; rather than being wielded directly by the legislatures or governors of the states, it only gave the legislatures the right to appoint electors, whom the framers expected to act as free agents in their thinking. The apportioning of electors by the combined number of Senators and Representatives of each state gave the smaller states more voice than they would have had in a national popular vote, but not fully equal to that of the larger states. And the contingent power of selection was given to the House of Representatives—where, in fact, the framers thought most elections would be decided—but with each state getting an equal vote, again giving the smaller states disproportionate power. The system was far from perfect, but it was seen as the least of all possible evils. It may seem unnecessarily complex and undemocratic from where we sit now, but at the time it may have been the only politically viable solution.
In the end, the genius of the framers was their dedication to getting the Constitution done, even at the expense of getting it perfect. Not all the delegates were willing to sign the document, and some of them actively campaigned against its ratification in their respective states, but most acceded to the words of Benjamin Franklin, the elder statesman of the convention, who on the closing day said: “I confess there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them…thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure that it is not the best.”
Reform Efforts
Beyond all we’ve discussed so far—the convoluted mechanics of the Electoral College, the problems it poses for our democracy, the reasons why the framers created such an odd compromise —one fact stands above all others:
The overwhelming majority of Americans today support a national popular vote for the president and they have for quite some time!
Polls consistently show strong support in all states—large and small, swing state and not—for a national popular vote for president. In a 2007 national poll, 72 percent of Americans said they support direct national election of the president. That sentiment is consistent across the nation, differing little, if at all, between the small states that are thought to benefit from the Electoral College and the large states thought to be disadvantaged by it. Once again, let’s compare Wyoming, which gets the most electoral votes per resident of all the states (one electoral vote for every 195,000 residents), and California, which gets the least (one electoral vote for every 709,000 residents). Recent polls show the same percentage of residents favoring direct national election of the president in both states: 69 percent in each.
Interest in reforming the Electoral College is so high that many citizens and states have, in recent years, begun taking matters into their own hands by attempting to do end-runs around this archaic system. In 2004, Colorado attempted to switch to a “proportional representation” system, in which the candidates would receive electoral votes in proportion to the percentage of the popular vote they received. Pennsylvania made an attempt in 2011 to adopt the method used by Maine and Nebraska, in which a portion of the electoral votes is allocated according to the results in each congressional district. Both the Colorado and Pennsylvania efforts failed, but not because many voters didn’t want change. The problem with state-by-state reform is simply that many people are reluctant to have their state take such a step on its own.
This chapter would not be complete without mentioning a clever, although perhaps ill-fated, effort to do an end-run around the Electoral College, called the “National Popular Vote Interstate Compact.” Under this plan, individual states would pass legislation mandating that their electoral votes be given to the candidate who wins the national popular vote, regardless of whether that candidate wins the state’s popular vote. The legislation explicitly states that this would only take effect when enough states have signed on to control the 270 or more electoral votes needed for a majority. Until then, the participating states would continue to follow their existing methods of awarding electoral votes.
The initiative began in 2007 and has now been adopted by legislatures in 11 states and the District of Columbia, representing a total of 165 electoral votes—61 percent of the 270 electoral votes needed for activation. While this is more than halfway to the goal, the states that have signed on are thought to be the easy ones. Getting to the 270 votes needed to put this plan into effect may be politically impractical. What’s more, while this initiative may sound simple, it actually presents a number of potentially disastrous problems should it ever be activated.
First, the Interstate Compact might not be constitutional. Not because there is anything unconstitutional about a state choosing to award its electoral votes in accordance with the national popular vote; as discussed earlier, the Constitution allows each state to decide how to apportion its electoral votes. However, the Constitution also says that no state shall enter into “any agreement or Compact with another state” without the Congress’s consent. And it is hard to imagine the Congress agreeing to this type of end-run around the Constitution.
Second, any state that joins the compact could just as easily leave it simply by passing legislation, leaving the whole system at the whim of state legislatures and their changing partisan makeup. The compact attempts to address this problem by stipulating that if any member state withdraws six months or less before the end of a president’s term, the withdrawal will not be in effect for that election. But since the president’s term ends on January 20, that means that states could withdraw up until July 20, little more than 3 months before the election. If enough states withdrew to bring the total number of participating states below the threshold of 270 electoral votes, the whole system would be rendered inoperable, possibly in the midst of the election season.
It’s also not certain that this six month provision is legal. Compact proponents defend this provision under the “Contracts Clause” of the Constitution, which prohibits any state from passing a law that “[impairs] the Obligation of Contracts." However, there are a number of complex constitutional issues that might support an opposite view. Imagine a scenario in which a state legislature withdraws from the Compact a week before the election, triggering a lawsuit from other Compact members. How long would it take the Supreme Court to make a ruling? And do we really want another case, as in the year 2000, in which the Supreme Court, in essence, selects the president?
Change Comes In Stages
Probably no other aspect of the Constitution has been so consistently despised by the American people, and yet not a single one of the more than 700 congressional proposals to reform or abolish the Electoral College over the past two centuries has achieved success. As we explored at the beginning of this book, Constitution change is a nearly impossible task. In the case of the Electoral College, the task has its own particular challenges.
For the Congress to pass an amendment abolishing the Electoral College, it would have to be willing to relinquish some of its own power—not a likely scenario. After all, Congress holds the final power of selection of the president and vice president in the event neither ticket receives a majority of electoral votes. While rare, it has happened twice in our nation’s history, and Congress is aware it could happen again. Indeed, it became more likely in 1961, when the Twenty-Third Amendment gave the District of Columbia representation in the Electoral College, coincidentally creating an even number of electoral votes. Thus, for the past 15 presidential elections, the possibility of a tie vote in the Electoral College has been possible, which would throw the election to the Congress to decide. The 2000 election was decided by only 5 electoral votes out of 538; a tie would not have been surprising.
The irony is that if we are serious about fixing the ills of the Electoral College, we need to accept the political reality that we must do so without changing the Electoral College itself. At least not right away. Like the framers of the Constitution, who heeded the adage to “not let the perfect get in the way of the good” we should embrace compromise in the interest of progress. Change sometimes must come in stages, if it is to come at all.
Some readers might be put off by my proposal. After all, presidential campaigns are bitter feuds. Some readers might rebel against the idea of giving the “loser” any leadership role. I would ask those readers to consider several things. First, the real power of this pledge is how it would transform the presidential campaigns; the need to carry it out would likely occur rarely, given that there have only been four elections in our nation’s history in which the winner of the popular vote lost in the Electoral College. But the incentives that this pledge creates to win both the Electoral College and the popular vote would transform how candidates behave in every election cycle. They would be more focused on the issues that matter to all Americans, as opposed to just the swing state voters. They would travel throughout the entire country, rather than spending most of their time in the swing states. They might even be more civil to each other, with the possibility of having to work together hanging over their heads. I believe those are things that nearly all Americans would like to see happen.
Second, the person who wins the Electoral College would hold the actual presidency. While they would offer their opponent a role in their administration if they lost the popular vote, they would always be able to fire that person, just as they can with any other member of their administration. (But they might find that, to their surprise, having someone with a different perspective in their administration actually makes for better decision-making overall).
Third, consider how this would work when your preferred candidate is the one who loses the Electoral College despite winning the popular vote. Wouldn’t you want to see him or her playing a role in leading the nation? I believe that, in the long run, our nation will be better served by bringing more fairness to our presidential elections than it will be by continuing the current divisive and inequitable system.
So because we cannot look to the Congress to fix the Electoral College, we should look to the presidential candidates themselves. And that brings us back to this chapter’s pledge for the candidates: “If I should win the Electoral College, but lose the popular vote, I will offer my opponent a role in my administration.”
We need not expect the candidates to make this pledge solely out of a sense of honor. This promise, it should be pointed out, would be a powerful campaign tool. A candidate making this pledge would demonstrate the courage and integrity that the American people seek in a president. That candidate would gain respect from the voters.
I acknowledge that this is less than a complete fix of the Electoral College. But it is far from insignificant. It would be the first time in our nation’s history that a national popular vote counted for anything. That fact is startling. In our nation’s 240 year history, we have never taken any action, nor made any decision, based on a simple majority vote of all Americans. Starting down that road would have powerful symbolic value. Let us call upon the presidential candidates to lead the way.