Scott Gant, an attorney practicing constitutional law in Washington, DC and Bruce Peabody, Professor of Government and Politics at Fairleigh Dickinson University propose their alternative to the electoral collage...
The Electoral College has to go. Our convoluted system under which voters indirectly select Presidents is needlessly cumbersome, alienates voters, and undermines our democracy. Whatever virtues it may have once had, are a distant memory.
We are saddled with the Electoral College because it is in the United States Constitution. Getting rid of it will require a constitutional amendment. That is daunting, especially given that our system for choosing Presidents currently advantages voters in less populated states. Since constitutional amendments require final approval by three-fourths of the states, some of these “smaller” states will need to be onboard.
But we may have arrived at a moment in our history where widespread discontent with our Presidential election process finally offers a path to change.
In two of our last seven Presidential elections (2000 and 2016), the Electoral College elected a President who received fewer total votes than the runner-up. While in both cases this dynamic worked to the advantage of Republicans, it could easily operate in the other direction. In 2004, John Kerry came within 118,775 votes in Ohio from winning the presidency over George W. Bush, who received millions more votes than Kerry across the country.
The potential divergence between who the Electoral College designates as the Presidential winner and the expressed will of a majority of voters is not the only problem. Whether they realize it or not, on election day voters pick electors not Presidents, and electors are the ones actually selecting the President. Relying on these delegates needlessly complicates our election and gives rise to claims of unfairness by voters whose preferred candidate loses.
The role of electors also generates legal disputes. As recently as July 2020, the Supreme Court had to resolve disputes about the states’ ability to sanction their so-called “faithless” electors who voted for a candidate not picked by the voters. And, of course, this past election then-President Trump and his supporters filed over sixty lawsuits challenging the election procedures and results in states the president lost, including Arizona, Georgia, and Pennsylvania. Subsequently, most Republican members of the House of Representatives and eight U.S. Senators voted against certifying the votes of the Electoral College.
As long as we retain the complex and archaic Electoral College system we invite future electoral obstruction, delay, and mischief.
Discontent with the Electoral College isn’t new. After all, the Twelfth Amendment, which requires electors to cast “distinct ballots” for President and Vice President, was added to the Constitution in 1804, following the contentious and protracted presidential election of 1800. Since then, hundreds of proposals to reform or abolish the system have been introduced in Congress, although, to date, none of them have passed through the required steps (successful proposal and then ratification by the states) to become part of our Constitution.
Numerous past and current proposals advocate for replacing the Electoral College with some form of direct popular election in which all votes across jurisdictions are added up, and the winner is the person with the most total votes. While simple enough, we view that approach as politically unrealistic because, as noted, less populous states are likely to object and their support would be required for a constitutional amendment.
We propose instead a system that builds on the bones of the Electoral College but gives it a major facelift. Our alternative is designed with a few basic principles in mind. The new system should: have a realistic prospect of being adopted; promote voter engagement; give each voter more of a chance to shape the outcome of the election; and be easy to understand and relatively straightforward to administer.
Right now, each state gets as many electors as it has members of Congress. For example, North Carolina has thirteen House members and two senators, and therefore gets fifteen electors. We’d eliminate electors, but retain the basic math that small states favor as a way to protect their interests.
Under our approach, each congressional district would get a point, 435 in all. These points would be awarded to the Presidential candidate who won the most votes in that district, regardless of the margin of victory and regardless of who wins the total number of votes cast across the state. This is similar to the Congressional District Method already in place in Maine and Nebraska (although again, they rely on electors, which we would abolish).
Presidential candidates could also earn two additional points in each state by winning the statewide vote decisively. But in a close race, we’d divide the two points evenly between the top two candidates. We propose defining such a close race as one in which the second place finisher was within 3% of the first place finisher. In the just past Presidential election, for example, Trump and Biden would have split the two state points in places like North Carolina (where Trump won by less than 1.5% of the total state vote) and Pennsylvania, Arizona, and Georgia.
As with the Electoral College, the District of Columbia would also get three points given to whoever won a majority of votes in the District. And whoever secured at least 270 points would win, becoming the president.
Why is this new system an improvement over the Electoral College? Under our proposal, presidential candidates would focus not just on a small number of competitive states as they do now, but on a larger number of competitive districts across numerous states. This would motivate candidates to broaden their appeal.
In the 2020 Presidential Election, both parties gave lots of attention to voters in Nebraska’s Second Congressional District, since that state allows candidates to obtain an elector for each congressional district they win. Joe Biden won the Second District (securing an elector) even though Trump decisively won the rest of the state (earning its other four Electoral College votes).
We would extend this basic idea across the country, bringing Republican candidates to compete strategically in historically “blue” (Democratic) states like California and New York, and Democrats into red ones like Kansas and Oklahoma.
The proposal would also encourage more voters to become politically active and cast ballots because races in dozens of congressional districts would be competitive. Meanwhile, the possibility of earning a statewide point would induce candidates to court new voters and compete for votes in new regions. In their hunt for statewide points, they would campaign across districts, even in those states where they are unlikely to finish in first place.
While stimulating wider political engagement, the new system would also have the virtue of familiarity. It tracks the basic structure of the legislative branch devised by the Founders, in which states each have the same number of Senators regardless of population while House seats are distributed by population. People are accustomed to voting in congressional districts and statewide elections. The Electoral College, in contrast, bears no resemblance to any other constitutional process or institution.
As with many compromises, our proposed system would leave some people unhappy and present legitimate concerns. For example, it’s built in part on existing congressional districts, some of which are the product of gerrymandering intended to advantage one party in Congress at the expense of the other. Of course, lawmakers might reconsider some of this strategy if it disadvantaged their party’s presidential candidates. With the prize of the White House in mind, and each Congressional District up for grabs under our new point system, it might make sense to draw electoral maps with more rather than fewer competitive districts.
In any event, our approach is pragmatic, recognizing that in order to secure a constitutional amendment we’ll need broad consensus—across the two major parties, large and small states, and urban and rural areas. By aiming for genuine reform, while still acknowledging political realities, we can strive to make sure that the 2020 presidential election marks the end of the Electoral College.
Scott Gant is an attorney practicing constitutional law in Washington, DC.
Bruce Peabody is a Professor of Government and Politics at Fairleigh Dickinson University.
Suggested citation: Scott Gant and Bruce Peabody, A Realistic Alternative to the Electoral College, JURIST – Academic Commentary, February 11, 2021, https://www.jurist.org/commentary/2021/02/scott-gant-bruce-peabody-electoral-collage/.
This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at firstname.lastname@example.org
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