Either way, it’s Time for an Amendment, including a Proportional Solution for the Electoral College.
Remarkably, we still lack a basic fact about the election system we’ve used for more than 200 years: whether electors can vote as they choose. On Friday, the Supreme Court announced it will resolve that question.
The Court will likely decide that states cannot stop rogue electors, creating a new wild card in presidential elections. On its own, this issue is not monumental, because campaigns can respond by vetting their electors more carefully. But such a decision would compound other significant risks and flaws of our presidential system that, in aggregate, we are irresponsible not to fix.
Black swans sometimes come home to roost. Our current system could quite conceivably result in a tie in the electoral college, and then a tie in the House. We could have another Florida-style contested result, with too little time to resolve the dispute. And now the Court will likely make possible an election result changed by rogue electors.
Those are the outlier scenarios; there are also major structural problems that we know will occur because of winner-take-all allocation of electors. This voting method renders two-thirds of states meaningless to the campaigns, wastes the votes of half the country, and sometimes puts a second-place candidate in the White House.
Winner-take-all is not in the Constitution, but stopping it is a collective action problem, best addressed through a constitutional amendment. The black swan scenarios of ties, contested results, and rogue electors can also only be fixed with an amendment, and they threaten both parties equally. Add it all up, and an amendment is past due.
We should center the amendment discussion around how to address winner-take-all. There are two often discussed fixes to winner-take-all: a national popular vote and the system used by Maine and Nebraska, which allocates some electors by congressional district. Unfortunately, both have significant structural flaws. The district system injects gerrymandering into presidential elections, and a national vote requires summing results from states with different rules. To illustrate why that matters, imagine a large blue state adopting 16-year-old voting, or mandatory voting, and red states having no choice but to follow suit.
Some reform groups, including Election Reformers Network, have been developing an alternative that fixes winner-take-all within a state-based structure likely to appeal to all sides. The approach is called “top-two proportional allocation.”
In this system, states allocate their electoral votes proportionally to the top two vote-getters in the state, and the calculation is carried out to the right of the decimal point. It’s simpler than it sounds. Imagine an election in Nebraska resulting in 60% support for the Republican candidate, 30% for the Democrat, and 10% split among others. Nebraska’s five electoral votes would be divided in the same proportion as the top two: 3.33 electoral votes for the Republican and 1.67 for the Democrat.
The system could work without electors, or could keep them and require they vote according to the state results. In this example, three Republican electors and one Democrat elector would each cast one vote for their candidate and an official, such as the secretary of state, could cast the fractions.
Either way, with portions of electoral votes available in every state, candidates would have an incentive to campaign everywhere. Republican candidates would finally return to California and Democrats would seek approval in Kentucky or North Dakota. The result? Better candidates tailoring their campaigns to suit all of the American people—not just a handful of swing states. And with winner-take-all out of the picture, a second-place candidate would have a very slim chance of winning.
The proportional approach protects against a huge weakness of the existing system, the vulnerability to “spoiler” candidates. In 2016, one percent of the vote in Michigan going to Jill Stein may have swung 16 electoral votes. With Top Two Proportional, that swing would be roughly .16 percent of a single electoral vote.
This state-based approach does not require uniform election rules across the nation and adapts easily to individual states implementing innovations, like ranked choice voting (RCV). By contrast, for any national popular vote system to benefit from RCV, RCV would most likely need to be in place in every state. With RCV incorporating 2nd and 3rd preferences, more voters would count in the determination of the top two.
Since this system easily enables RCV, and significantly reduces spoiler risk, it would be much more encouraging to qualified candidates from outside the two leading parties, candidates who now don’t run because they know they can’t win under the current rules.
What this reform does not do is realize the principled, but politically difficult, objective of making every vote equal, which requires ending the constitutional advantage for small states. We should be willing to compromise on that principle for a solution both sides can accept, particularly because small states are currently evenly divided politically.
This top-two proportional approach improves on a precedent, the Lodge-Gossett Amendment, which passed the Senate 64-27 in 1950. Lodge-Gossett called for proportional allocation to all candidates, which has the defect of causing many elections to be thrown to the House.
While we’re under the hood, so to speak, we can fix other black swan problems, by giving states more time to resolve disputes and changing the voting rules for elections thrown to the House.
It is often said that hundreds of attempts at fixing our presidential election system via a Constitutional amendment have failed, so we should give up hoping it can be done. By taking on the faithless elector question, the Supreme Court may have changed that equation. Faithless electors may be the one additional risk that galvanizes us finally to put our electoral house in order.