State by State Electoral College Vote, 1916 Presidential Election. Woodrow Wilson (D-NJ, Inc) v. Charles Evan Hughes (R-NY).
(See update note before discussion begins re House size.)
I know the arguments against the Electoral College and they all start with an accurate statement: It has skewed election results from the beginning, and is foremost in the institutional destabilization of American Democracy.
I also know the proposed reform that has the most traction, getting the states to agree to give their votes to the candidates who win the national popular vote, and the minor reform that Nebraska and Maine have introduced by distributing their electors based on Congresional District and then awarding the two “senate” electors to their statewide winners.
Neither reform will protect us from the instability our system now demonstrates. In particular, at the point when a national popular vote is close enough to dispute, in states with election laws drawn by a mixture of ALEC, AFP and various state Republican parties, the spoils will go to the moneyed bullies.
What we need is a system that reduces ares of contention and increases the rights of the people at the expense of the state legislatures. It needs to create an Electoral College that better reflects the proportionality of the vote, reducing — even elminating — cases in which the popular-vote loser wins the electoral vote. We need something that can be done with an act of Congress rather than a Constitutional Amendment, and that can be clearly explained to both real people and judges as consistent with Articles 1 and 2, and Amendments 10, 14 and 15. This is what I come up with, and I’ll note that I’m a Polk County, Florida voter with past voting history in Oklahoma, New York, Arizona, West Virginia and Kentucky:
1. Add 50 seats to the U.S. House of Representatives. Forty years ago, The New Republic columnist Richard Strout argued persuasively that one major reason government had begun to not work was that the House size had been frozen in 1911 and the poulation had since doubled. The situation is worse today. A 2011 congressional district generally reflected 700,000 population, 22 times what the framers envisioned. The 2021 figure, based on the preliminary Census reporting, is that Florida’s districts will reflect 770,000 population. The size of a U.S. House district unduly increases the role of politicay money, but they also increase the likeliehood that party affiliation is the only thing a voter might have in common with an elected representative. In much of the country, a 770,000 district is going to stretch across multiple counties and not be dominated, for instance, by a single economic interest, ethnicity or cultural heritage. That makes it all the easier for state legislatures to draw boundaries based on their partisan interests.
I live in FL-CD-15, which courts made the Florida legislature redraw twice before accepting boundaries that still, frankly, suck. It is a mixed urban, suburban and rural district that takes two and three quarters hours to drive across, starting in southern Hillsborough County (communities south of Tampa) across the western half of Polk County (mainly Lakeland) and then into Lake County (mainly Clermont). It stretches across three television markets, and according to the 2020 census now has a population of more than 800,000. Polk is the largest county in the state to not get a majority or a single congressional district, and it is parsed among three districts. The original 2011 districts divided it among four and had an even worse FL-CD-15 than this. Polk is itself split between the Tampa and Orlando TV DMAs, so either you split the county or split the TV markets. The lege did both and added a pocket of the Gainesville DMA with the inclusion of the Lake Copunty precincts. Including voters from three counties and three media markets creates a situation where a challenger is often known only by party affiliation.
The court challenges were because the FL lege so ignored the 2010 Fair Districts amendments to the state constitution. Voters so hated the 2001 districts that we voted, by a wider margin than any state candidate has received since, to require the districts to lack parisan considerations and be both community-based and compact. Rick Scott attempted to delay implementation of the amdnements for 10 years, but the legislature instead ignored them. Taxpayers (voters) spent tens of millions of dollars in legal fees against what they (we) had implemented.
This would be harder to do with smaller districts. Frankly, only adding 50 isn’t enough. If that resulted in one more district for Florida, it would create districts of roughly 740,000. Only a House large neough that Florida would get 32 seats would start to reduce the district size. But I believe democracy requires such a reduction.
2. Mandate strictly proportional distribution, not by district and not holding out two seats to the statewide winner, of electors within each state. Ending the unit rule was one of the bet reforms to come out of the post-McGovern Commission reforms within the Democratic Party. It makes even more sense in a general election. The results are going to more likely match the national vote. But this is the most important thing: A legal battle within a state is only going to involve one elector per state. Making less at stake will make it less likely the GOP, frankly, will pull crap. Sixty lawsuits. A new Brooks Brothers riot. A ninja audit months after the fact. Stealing an entire election might be worth that. Picking up a single vote in two or three states, not so much.
Eliminating the electoral college would create a broader playing field for vote-counting challenges, a field in which regular people would be outgunned. This is one area where all interests are best served by shrinking the field.
These two changes would combine to reverse 100 years of steadily eroding proportionalism. Because four states were added after the 2011 House freeze, the non-proportional share of the total electoral college has increased by eight votes or roughly nine percent even as the portional votes are being “shared” by larger and larger groups of people. The above map, of the 2016 presidential election, illustrates this. Note that four states had three electoral votes in 1916. Eight states have three electoral votes this last census cycle, including the two states added since 2016.
There will be an immediate court challenge, and some of the current Supremes will be inclined to side against this. Sam Alito, for instance, issued a minority opinion last Decmeber positing that only state legislatures have the roght to determine eleciton law. He’s transpartly a tool of his johns, because the U.S, Constitution refers to state governments, not just the current GOP morass of legislatures, and that involves all three branches of state governments. But Amendment 10 is also pretty clear. Powers not spelled out for the federal government are assumed reserved for the states or the People. This point can be made clearly. An able lawyer could argue that elections are an area in which the people direct the state, and not vice versa. Mandating proportional electoral voting would better empower the people, consistent with the 10th Amendment.
There are other things Congress could do in passing legislation to authorize the new districts. It could allow states to waive, within reasonable limits, deadlines affected by the Census Bureau missing its own deadline. But if states accepted the waiver, I think they should be required to include NPA voters in allocating any commission memberships. Florida also proved, in adopting its 2008 presidential primary dates, that the parties really can’t be trusted policing election matters. It could, while we continue to haggle over DC statehood, include district voters within Maryland congressional districts and then let them vote. Frankly, there is no moral argument that can deny voting rights to any of our colonies, but DC for now.
In the meantime, a larger House and an end to bloc voting. Two things that would help
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