Donald Trump is the President-Elect because for the 4th time electors will split with the overall popular vote. It will also be the 12th time a president has been elected without a popular vote majority. This makes some people sad.
I’m here to defend the Electoral College. Not because I like Trump (I don’t), but because it’s not the Electoral College that’s broken. What’s broken is how we pick the electors, and the fixes are simple.
The Constitution has little to say about electors:
- States decide how to pick electors (A2, S1, C2)
- One elector for each Senator and Representative (A2, S1, C2), plus a Wyoming’s worth for D.C.(Amd 23)
- We all vote on the same day (A2, S1, C4)
- Each elector votes for a 2-person ticket (Amd 12)
- Electors may not be holding a federal office (A2, S1, C2) 1
I’ve listed these in decreasing objectionableness. The last rule hinders cronyism by preventing electors from already being members of the government they’re appointed to elect. The 2-person ticket was a fix for the Jefferson-Burr debacle of 1796. And voting on the same day feels like common sense.
Reasonable people disagree with how electors are apportioned. Binning by Rep and Senator clearly violates the principle of one-person, one-vote, but that’s by design and mirrors the structure of Congress — both people and states matter. America was founded on a fear of populous-state tyranny, and Clause 2 reflects that fear by weighting electors by both the number of people and the fraction of states they represent. If you fundamentally disagree with this philosophy then there’s not much to talk about, because neither perspective is inherently right. But the Federalist approach is consistent with the fundamental structure of American government. In the five cases where the popular vote and electors have differed the system is working as designed by providing an incentive for candidates to not just get as many votes as possible, but to care that those votes have at least some geographic diversity.2
That said, there are serious flaws in the current system. I am most sympathetic to the disproportionate focus on swing states, discouragement of turnout in safe states, and the disadvantage for third parties. But none of these issues are inherent flaws in the Electoral College system, only with the specific method the states have chosen to pick their electors.
The Framers intended electors to be selected by district, rather than by state:
The district mode was mostly, if not exclusively in view when the Constitution was framed & adopted; and was exchanged for the general ticket & the Legislative election, as the only expedient for baffling the policy of the particular States which had set the example.
Winner-take-all selection is why California (54 electors), Texas (38), and the other non-swing states are neglected by candidates, and why many people know that their vote will be counted but not count. If electors were selected like they are in Maine and Nebraska (by congressional district, with two at-large electors) then instead of solid and swing states there would be solid and swing districts. This would force campaigning in more states, but it wouldn’t really solve the problem. There are definitely more competitive and geographically dispersed legislative districts than swing states, but gerrymandering would still discourage turnout in safe districts. We haven’t solved the problem, just cut it up and spread it out.
But again, this failure is a symptom of a larger disease, and the fix would benefit both presidential and congressional elections. Districts should be consolidated and computer-drawn, and electors (and Representatives) should be selected via instant run-off voting. Procedurally drawn districts would eliminate gerrymandering (the algorithm wouldn’t even have access to voter preference information or demographics), while instant run-off voting in multi-elector districts would help ensure minority voters3 have more proportional representation. IRV would also enable third-party candidates because an unsuccessful bid wouldn’t be a de facto vote against your second-favorite option.
The current system has issues, but the Electoral College plays an important role in ensuring a few high-population states can’t ignore the needs of the rest of the nation. The fix is to change how we pick electors, not make every citizen into one.
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They really did cram a lot into Article 2, Section 1, Clause 2. ↩
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This system does result in American territories not getting electors. This is a real problem, but not a root cause. If territories were given Representatives and/or Senators they would get electors as well. Not having presidential elector franchise is a symptom of not having any franchise. ↩
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meant here as voting blocs in the minority, not necessarily racial minorities ↩