This post originally appeared in GOVERNING.
With new threats of ‘faithless legislatures’ ignoring the popular vote, reform is more urgent than ever. Allocating electoral votes proportionately would avoid election disasters and could have bipartisan appeal.
Happily, there was no drama when the nation’s presidential electors met on Monday to elect Joe Biden and Kamala Harris. Thanks in part to the Supreme Court, “faithless electors” did not threaten Biden’s substantial lead, and no legislature ignored its state’s popular vote to appoint a competing slate of electors. Some may conclude that the evils of the Electoral College have been tamed, that we can live with this creaky institution.
We can’t. The Electoral College as it currently functions is a disaster waiting to happen and a source of daily distortion to our democracy. Doing away with the institution entirely might seem desirable to many, but a constitutional amendment for direct election of the president and vice president has almost no chance of passing Congress and three-fourths of the states. As difficult as the challenge is, we must find a more broadly supported path to reform, focused on the Electoral College’s most dangerous flaws. There is one route that could find bipartisan appeal.
The urgent need for change could not be clearer. After this norm-shattering year, we are probably one close election away from national breakdown. For the first time, a sitting president and his supporters have urged state legislatures to name electors contrary to the popular vote. State laws make clear that they can do so if an election dispute lasts long enough. There were no “faithless legislatures” this year, in part because state vote totals weren’t very close. We won’t always be so lucky in the future.
We are also fortunate this year that the popular-vote winner also won the Electoral College. With a swing of only about 22,000 votes, the second-place candidate would be heading to the White House for the third time in six elections. We can expect the Electoral College to remain competitive, and Democrats seem likely to retain the popular-vote majority. It is thus only a matter of time until the basic principle that the candidate with the most popular votes should win is violated again.
The worst problem with the Electoral College is not the issue most people talk about, that small-state voters have more weight in the choice of a president. Other countries convey greater voting impact to less-populated regions. In the United Kingdom, for example, the smallest parliamentary district has one-fifth the number of voters — and thus five times the impact on who becomes prime minister — as the largest. And in this country, despite popular perceptions, Republicans do not dominate small states: The 16 smallest states have divided eight-to-eight in each of the last four presidential elections.
The much more significant problem is that the logic of the Electoral College has compelled all but two states to allocate their electors on a winner-take-all basis. Winner-take-all math is the reason swing states dominate presidential campaigns and the reason second-place popular-vote finishers can win if they eke out victories in enough states. For the Republican Party, winner-take-all has enabled dependence on a narrow base and intensified motivation to reduce turnout, both of which distort our democracy on a daily basis. Winner-take-all is not in the Constitution, nor was it in the Founders’ intent.
The idea for reforming the Electoral College that has advanced the furthest is the National Popular Vote Interstate Compact, which commits states to give their electoral votes to the national popular-vote winner and goes into effect once enough states sign on to provide the winning 270 electoral-vote total. So far, 15 blue states and the District of Columbia have passed the agreement. If the compact is adopted by several Republican-controlled legislatures, survives the Supreme Court and is not overturned in member states, it could be the solution the country needs. But those “ifs” are big enough to make clear we need a Plan B.
Two states, Nebraska and Maine, allocate some of their electors by congressional district. But that approach, if adopted nationally, would give a big role to gerrymandered districts and would not have prevented Donald Trump’s win from second place in the popular vote in 2016.
The best solution needs the permanence of a constitutional amendment, which means offering something for both sides. Republicans want to keep the small-state advantage and the state-based, rather than national, calculation of results. Democrats want results that reflect the popular vote. How to satisfy both?
The Supreme Court provided part of the answer with its unanimous decision that electors don’t need discretion — making clear that we don’t need electors. A constitutional amendment should replace human electors with electoral votes that can be expressed fractionally, in decimal form. An amendment should also end winner-take-all — and the risk of faithless legislatures — by requiring states to allocate their electoral votes proportionally, ideally to the state’s top two vote-getters. To illustrate, in Missouri a popular-vote outcome of 55 percent to 45 percent would result in the state’s 10 electoral votes being awarded 5.5 to 4.5.
An amendment with those two provisions makes a second-place president extremely unlikely and creates incentives for candidates to campaign in every state, creating a truly national election at last. This approach would also drastically reduce the “spoiler” problem: A few percentage points to a Libertarian or Green Party candidate would no longer potentially swing all of a state’s electoral votes.
It may sound crazy to propose a broad-based national agreement when one side still won’t acknowledge this year’s results. But this idea already passed the Senate once, by a vote of 64-27, in 1950 in the form of the Lodge Gossett amendment. And it’s supported by a growing list of national leaders, including 2020 Democratic presidential candidate Andrew Yang, Harvard law professor Lawrence Lessig and Nobel Prize-winning economist Peter Diamond.
Party officials outside of swing states would likely support a change that can bring presidential campaigns to their states to help with down-ballot races. Moderates of both parties should welcome an alternative to the current options of status quo or a National Popular Vote Interstate Compact.
The risks and distortions of the Electoral College intensified significantly this year. It is irresponsible of us not to find a path to fix it.