States Can Fix the Electoral College
No amendment or circumvention of the Constitution is needed.
The delegates to the 1787 Constitution Convention struggled to resolve the controversial issue of how to elect the executive head of the proposed new republic. Processes considered included direct election by the general public, appointment by the Senate or Congress, appointment by Governors of the various states, or the people of the states select electors who would elect the President.
North Carolina delegate Dr. Hugh Williamson stated that “The principal objection against an election by the people seemed to be the disadvantage under which it would place the smaller states.” Massachusetts delegate Elbridge Gerry also opposed popular vote stating “A popular election in this case is radically vicious. The ignorance of the people would put it in the power of some one set of men dispersed through the Union, and acting in concert, to delude them into any appointment.” Virginia delegate George Mason stated “It has been proposed that the election should be made by the people at large; that is, that an act which ought to be performed by those who know most of eminent characters and qualification should be performed by those who know least.”
Pennsylvania delegate Robert Morris stated “Of all possible modes of appointment, that by legislature (Congress) is the worst. If the legislature is to appoint, and to impeach, or to influence the impeachment, the executive will be the mere creature of it.” Virginia delegate James Madison stated “If it be a fundamental principle of free government that the legislative, executive and judiciary powers should be separately exercised, it is equally so that they be independently exercised. . . It is essential, then, that the appointment of the executive should either be drawn from some source or held by some tenure that will give him a free agency with regard to the legislature.”
New York delegate Alexander Hamilton stated “It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men chosen by the people for the special purpose. . . It was equally desirable that the immediate election should be made by men most capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation. . . A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.” North Carolina delegate William Davie stated “. . . that it was left to the wisdom of the (state) legislature to direct their (electors) election in whatever manner they thought proper.” Historically, the concentrated power of government is the greatest threat to states rights and individual freedom. The convention delegation decided that a temporary group of presidential electors selected in such manner as the state legislatures think proper was the least objectionable method of electing the President.
Past instances when the President of the United States (POTUS) candidate Electoral College winner received less national popular votes than another candidate have initiated movements to amend the Constitution to either modify or delete the Electoral College. A complaint by the more populous states is the advantage the least populous states have by having an electoral vote for each Senator and at least one electoral vote for a Representative. A complaint with the state “winner takes all” electoral votes, implemented by all states except Nebraska and Maine, is that POTUS campaigning is predominant in the swing states and minimized in the solid red or blue states. According to Wikipedia, since 1800 there have been more than 700 proposed amendments submitted to Congress to either delete or modify the Electoral College. All have failed.
In 2006 the National Popular Vote Interstate Compact (NPVIC) was created as a means to implement popular vote election of the POTUS without amending the Constitution. To date NPVIC has been enacted into law by fifteen states and the District of Columbia, representing 195 electoral votes. All of the states have/had a Democratic Party majority in the legislature when the associated bill was passed. It is unlikely that the needed 270 electoral votes will be achieved without the support of Republican Party majority state legislatures. Should the NPVIC achieve implementation, it is probable there will be dissatisfaction by the residents of a participating state with a super majority for a candidate that is not the national popular vote winner. Another issue with NPVIC is when there is a close national popular vote between two candidates, the total votes for every state is critical to the outcome. Every state would be involved in recounts and the results challenged in courts delaying the determination of the winner.
States can fix the Electoral College to reflect the popular vote without amending or circumventing the U.S. Constitution.
The U.S. Constitution allows the states to “appoint, in such manner as the legislature thereof may direct, a number of electors” to elect the POTUS and Vice-POTUS. All states except two award their total electoral votes to the statewide popular vote winner. The winner-takes-all method motivates candidates to prioritize campaigning in swing states since there’s little chance of a Democrat winning a solid red state or a Republican winning a solid blue state. Maine and Nebraska award two electoral votes to the statewide popular vote winner and one electoral vote to each congressional district popular vote winner. Consequently, even though these states have a small number of electoral votes they receive campaign attention.
If all states would switch to proportional electoral vote allocation based on statewide popular vote then the national electoral vote would more closely reflect the national popular vote. Proportional electoral vote allocation would motivate candidates to campaign in every state and avoid statewide recounts for every state for national close elections. There are several methods for proportional representation that could be utilized for proportional electoral vote allocation. The Jefferson/D’Hondt method was devised by Thomas Jefferson in 1792 for Congressional apportionment following the first U.S. census. An equivalent method was published in 1882 by Victor D’Hondt. The implementation involves repeatedly dividing the statewide popular votes for each candidate with an increasing integer divisor and then ranking the results in descending order. The process is illustrated below for the 1992 POTUS candidates’ votes cast in the Arizona election.
In 1992 Arizona was authorized eight electoral votes. The above illustrates that with the Jefferson/D’Hondt method the allocations would have been: Clinton, three EVs; Bush, three EVs; and Perot, two EVs.
The table below compares the 1992 election results with those using the Jefferson/D’Hondt method. A total of 104,423,923 votes were cast for POTUS candidates.
Please note the above inconsistency of the PEV percentage with the popular vote percentage. However, there is close correlation of the JEV percentage with the popular vote percentage. Also note that with JEV no candidate would have won a majority of the electoral votes as required by the Constitution. Consequently, the winner would be determined by the House of Representatives with the representation from each state having a single vote.
The table below compares the 2000 election results with those using the Jefferson/D’Hondt method. A total of 105,405,100 votes were cast for POTUS candidates.
For the 2000 election the PEV and the JEV percentages are comparable to the popular vote percentage. However, because the difference between Mr. Bush and Mr. Gore was only one half percent of the popular vote, with JEV no candidate would have achieved a majority.
The table below compares the 2016 election results with those using the Jefferson/D’Hondt method. A total of 136,669,237 votes were cast for POTUS candidates.
Once again using the JEV method in 2016 no candidate would have received a majority vote even though about 3 million votes separated the two leaders. This is because more than 7.8 million votes were cast for other candidates.
The table below compares the 2020 election results with those using the Jefferson/D’Hondt method. A total of 158,383,403 votes were cast for POTUS candidates.
One criticism of the proposed method vs the current plurality method is that the Jefferson electoral vote allocation is more likely to result in no candidate receiving a majority of the electoral votes and the POTUS being selected by the House of Representatives. This is demonstrated in the 1992, 2000 and 2016 tables. However, if proportional representation were implemented in the House, the will of the people would still be indirectly reflected in the House vote for the POTUS. It is probable that if the Jefferson method was adopted for all states it would soon be rejected by the electorate. The fifty votes cast in the House of Representatives should not override the more than 158 million votes cast by the electorate.
No state requires a majority vote POTUS winner in the general election.
It is illogical for states to expect to satisfy a national requirement for a majority vote winner when plurality vote POTUS winners are allowed in every state general election. Apparently states want to avoid the delay and cost of conducting runoff elections.
The solution is for states to implement instant runoff/ranked choice voting for POTUS in the general election.
Instant runoff/ranked choice voting eliminates the delay and cost of conducting runoff elections. It decreases wasted votes and spoiler votes. It increases voter satisfaction. Voters can vote their conscience (first choice) without inhibitions and still vote for a potential winner (second or third choice). Instant runoff/ranked choice voting increases the probability that a POTUS candidate will receive at least 270 electoral votes.
Source of quotes: The Making of America by W. Cleon Skousen, National Center for Constitutional Studies.
