Electors should be allocated by congressional district, not as winner-takes-all blocks of votes. Applying congressional district allocation models to past elections suggests this would generally ensure the popular vote winner also occupies the White House. Better still, changing to congressional districts requires no federal legislative change or consent.
The Electoral College has survived at least 400 somewhat serious, one nearly successful, and nearly 800 total attempts to reform or abolish the method used in the United States to officially elect a president and vice president.
The nearly successful attempt at reform passed the House of Representatives in 1969 and had supporters in both political parties. It stalled out in the Senate and was unlikely to be ratified by the required number of states.
In 1824, 1876, 1888, 2000, and 2016 the winner of the Electoral College was not the winner of the national vote, either in plurality or majority. (Winning a majority isn’t common, but winning the plurality is.)
NPV: Not Happening
State efforts to reform the Electoral College have wrongly focused on the National Popular Vote Compact between states. The NPV compact is likely unconstitutional, as the Constitution explicitly bans compacts between the states without congressional approval. (See Article I, Section X of the Constitution.)
However, states can and should change to allocating Electors by House Congressional District, with two state-wide electors for the overall winner of each state.
Congressional district allocation already exists and works in Maine and Nebraska.
FairVote and other organizations claim only NPV addresses what they view as the problems with the Electoral College. The problem for FairVote and similar groups: the Senate and small states aren’t going to amend the Constitution.
We need a realistic, pragmatic, and legal change to help reduce the probability of the national vote loser winning the Electoral College. We need change now, not in a generation or two.
There is no way a conservative Supreme Court upholds the NPV Compact model of change to the electoral system. The courts have and would uphold the Maine and Nebraska models.
The Electoral College gave Donald Trump a 3-point advantage compared to the national popular vote. It’s quite possible this slight but important edge for Republicans might continue into 2024 or even 2028, depending on demographics. However, the Electoral College actually gave Democrats a slight advantage as recently as 2012.
Yes, in 2004, 2008, and 2012, the Democratic candidates received an Electoral College bonus compared to their popular votes. But. we also know that Barack Obama won the popular vote anyway, so the electoral system didn’t change the result. Curiously, in 2004 it nearly did. John Kerry lost the popular vote by 2.5 percent but could have won the Electoral College.
In 2000, many Democrats actually feared George W. Bush would win the popular vote and lose in the Electoral College. Al Gore’s team was prepared for legal disputes on the assumption he might become president while losing the popular vote. Instead, the opposite happened and it was Bush who lost yet won.
Electoral College Mythology
As an aside, the persistent and widely disseminated “truth” that the Electoral College was mostly the result of racism and compromise with the slavery-defending Southern States doesn’t stand up to the evidence.
The defense of the Electoral College, once enshrined in the Constitution, was the result of slave-holding states coordinating with the small Northern States to limit the power of New York and Pennsylvania. Today, small states worry about California, Texas, New York, and Florida. Small states will always believe the more populous states have too much power.
Professor of history Sean Wilentz changed his view of the Electoral College’s history while revising his work on slavery’s role in the founding of the United States. In this 2019 essay, appearing in the New York Times, Wilentz opens with the same background most historians and armchair political scientists know: the Electoral College reflected the three-fifths compromise on slaves as residents of the nation but not citizens.
The Electoral College Was Not a Pro-Slavery Ploy
By Sean WilentzSean Wilentz is a professor of history at Princeton and the author, most recently, of “No Property in Man: Slavery and Antislavery at the Nation’s Founding.”
April 4, 2019
There is a lot wrong with how we choose the president. But the framers did not put it into the Constitution to protect the South.
I used to favor amending the Electoral College, in part because I believed the framers put it into the Constitution to protect slavery. I said as much in a book I published in September. But I’ve decided I was wrong. That’s why a merciful God invented second editions.
Like many historians, I thought the evidence clearly showed the Electoral College arose from a calculated power play by the slaveholders. By the time the delegates at the Constitutional Convention in 1787 debated how the president ought to be chosen, they had already approved the three-fifths clause — the notorious provision that counted slaves as three-fifths of a person to inflate the slave states’ apportionment in the new House of Representatives.
The Electoral College, as approved by the convention in its final form, in effect enshrined the three-fifths clause in the selection of the president.
By including the number of senators, two from each state, the formula leaned to making the apportionment fairer to the smaller states. Including the number of House members leaned in favor of the larger states. But the framers gave the slaveholding states the greatest reward: The more slaves they owned, the more representatives they got, and the more votes each would enjoy in choosing the president.
The Constitution is a flawed document that needed to be amended to address the dehumanizing of so many people. I support on-going efforts to correct those past wrongs. Still, the Electoral College was not entirely or even mostly about preserving slaveowners’ power in the new United States.
We should also reform the Electoral College, as I suggested in the opening of this post.
Obviously counting slaves as residents, but not full citizens, gave the South more representation and more electoral clout. The question is, how much more clout did the South truly gain?
As Wilentz notes, the Electoral College clearly seems to be nothing more than a racist, pro-slavery artifact of Southern States. But, the story is more complicated.
If you stop at this point in the record, as I once did, there would be no two ways about it. On further and closer inspection, however, the case against the framers begins to unravel. First, the slaveholders did not need to invent the Electoral College to fend off direct popular election of the president. Direct election did have some influential supporters, including Gouverneur Morris of New York, author of the Constitution’s preamble. But the convention, deeply suspicious of what one Virginian in another context called “the fury of democracy,” crushed the proposal on two separate occasions.
More than slavery, smaller states and the South feared the New York-Pennsylvania power centers. The leaders of other states didn’t want the more populous two states dictating national policy. Delegates from other states also worried New York and Pennsylvania’s wealthy might buy the votes of Electors or in other ways sway results.
It turns out, math suggests the Electoral College did not help the South as significantly as mythology implies.
When it first took shape at the convention, the Electoral College would not have significantly helped the slaveowning states. Under the initial apportionment of the House approved by the framers, the slaveholding states would have held 39 out of 92 electoral votes, or about 42 percent. Based on the 1790 census, about 41 percent of the nation’s total white population lived in those same states, a minuscule difference.
Believe it or not, with the three-fifths compromise or not, with the Electoral College or not, the South represented 41 to 42 percent of the nation.
Today, however, there’s little question that the winner-take-all Electoral College favors rural white voters over the more diverse communities of our urban centers. That’s one reason I support the district-level selection of Electors. No matter the history, the Electoral College evolved into a tool of racists.
Back to history. Believe it or not, it was the Abolitionists, including Abraham Lincoln, who benefited from the Electoral College.
But didn’t the college, whatever the framers’ intentions, eventually become a bulwark for what Northerners would later call the illegitimate slave power? Not really. Some historians have revived an old partisan canard that the slaveholding states’ extra electoral votes unfairly handed Thomas Jefferson the presidency in 1800-01. They ignore anti-Jefferson manipulation of the electoral vote in heavily pro-Jefferson Pennsylvania that offset the Southerners’ electoral advantage. Take away that manipulation, and Jefferson would have won with or without the extra Southern votes.
The early president most helped by the Constitution’s rejection of direct popular election was John Quincy Adams, later an antislavery hero, who won the White House in 1824-25 despite losing both the popular and electoral votes to Andrew Jackson. (The House decided that election.) As president, the slaveholder Jackson became one of American history’s most prominent critics of the Electoral College, which he blasted for disallowing the people “to express their own will.” The Electoral College system made no difference in deciding the presidency during the 36 years before the Civil War.
There are ample grounds for criticizing the Constitution’s provisions for electing the president. That the system enabled the election in 2016 of precisely the kind of demagogic figure the framers designed the system to block suggests the framework may need serious repair. But the myth that the Electoral College began as a slaveholders’ instrument needs debunking — which I hope to help with in my book’s revised paperback.
History matters and I wish people didn’t promote the mythology that the Electoral College was primarily created for pro-slavery reasons. That’s not the full story.
With that in mind, the Electoral College is still flawed and in need of pragmatic and prompt reforms that restore balance to our elections.
And, for the other perspective, with its selective history read this influential essay:
The Electoral College’s Racist Origins
https://www.brennancenter.org/our-work/analysis-opinion/electoral-colleges-racist-originsWilfred Codrington III
Assistant professor at Brooklyn Law School and fellow at the Brennan CenterNOVEMBER 17, 2019
Commentators today tend to downplay the extent to which race and slavery contributed to the Framers’ creation of the Electoral College, in effect whitewashing history: Of the considerations that factored into the Framers’ calculus, race and slavery were perhaps the foremost.
Of course, the Framers had a number of other reasons to engineer the Electoral College. Fearful that the president might fall victim to a host of civic vices—that he could become susceptible to corruption or cronyism, sow disunity, or exercise overreach—the men sought to constrain executive power consistent with constitutional principles such as federalism and checks and balances. The delegates to the Philadelphia convention had scant conception of the American presidency—the duties, powers, and limits of the office. But they did have a handful of ideas about the method for selecting the chief executive. When the idea of a popular vote was raised, they griped openly that it could result in too much democracy. With few objections, they quickly dispensed with the notion that the people might choose their leader.
The following is the argument, the current argument, with which I sympathize:
What’s clear is that, more than two centuries after it was designed to empower southern whites, the Electoral College continues to do just that. The current system has a distinct, adverse impact on black voters, diluting their political power. Because the concentration of black people is highest in the South, their preferred presidential candidate is virtually assured to lose their home states’ electoral votes. Despite black voting patterns to the contrary, five of the six states whose populations are 25 percent or more black have been reliably red in recent presidential elections. Three of those states have not voted for a Democrat in more than four decades. Under the Electoral College, black votes are submerged. It’s the precise reason for the success of the southern strategy. It’s precisely how, as Buckley might say, the South has prevailed.
We cannot look only to history and defend the Electoral College because most of the concern was about large states gaining too much power. Nor can we ignore even a lesser role slavery played in the adoption of our Constitution and the three-fifths compromise, which is reflected within the Electoral College structure.
States like Texas might resist allocating Electors by Congressional District because the state’s leaders want to give Republicans an edge in presidential elections. Likewise, California might resist the move. However, when neither party has a clear advantage, the political parties might see the practical benefits of distributing electors instead of using winner-take-all.
If the four large states adopted the Maine and Nebraska models for their Electors, the other states would follow.
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