Stephen Cohen Donald Trump, elections, Hillary Clinton, politics

A Modest Proposal for the Electoral College

It has often been pointed out that in the 2016 presidential election, Hillary Clinton won the popular vote (65.85mil to 62.98 mil votes), even though Donald Trump won the presidency through the vote of the electoral college (304 to 227).  This wasn’t the first time that a president has been elected with a minority of the popular vote.[1]

Many argue that the Electoral College should simply be abandoned, while others insist that it’s fine just the way it is.

Those who want to keep the electoral college argue that smaller states would be disregarded if the presidential contest were nothing but a popular election (overall majority of those voting determines the winner).  And a common thread in such arguments nearly always involves reference to avoiding a “tyranny of the majority”.  That is, if it is nothing but a purely democratic popular vote, then it would be possible for a majority of the population to tyrannize a minority.  A candidate would need to focus on only the most populous states, securing a winning percentage of the voters there, and paying little or no attention to the less populous states.

By design, the electoral college was to be a deliberative body, to function as a corrective of or watchdog over or reasoned consideration of the (mere) popular vote.  The idea is that the electoral college should function as a check on unbridled, ill-considered, perhaps irresponsible and oppressive, popular numbers.  As Alexander Hamilton urged, it was to protect against an ill-equipped, unqualified candidate ascending to the highest office in the land.[2]  As such, it was to function as a guard against a tyranny of the majority.

If the electoral college ever did serve this function, it has not done more than merely mechanistically assign numbers for a very long time.  Electors are chosen by political parties, basically as a reward for loyal service to the party, and almost all of them are “pledged” to vote for their parties’ nominees.  They are hardly a group of wise, independent, clear-thinking individuals who have at the forefront of their minds their task of assuring “that the office of President will never fall to [anyone] who is not in an eminent degree endowed with the requisite qualifications.”[3]  They are, rather, party loyalists, and nothing more. 

And yet, people continue to argue that the electoral college guards against a tyranny of the majority:

“If it’s simply a democratic, majority-win election, then candidates will need to work on only five or six states – it would give those states all the power.  Having an electoral college makes it the case that all states are players.”

This point, which, I believe, has been central in talk about maintaining the electoral college, is just silly!  Let’s suppose (for the sake of argument) that a majority of the population of the entire US lives in only one state, New York.[4]  This point would suggest that therefore, if it were a matter of simply a democratic vote, a candidate would need to focus only on New York.  This would assume, however, that the candidate’s focusing on New York would be for the purpose of every voter in that state (or at least a really overwhelming majority) voting for this candidate.  Whereas, if you look at the 2016 election, an election which did, in fact, polarise people (and in some cases, states), a really big win in a state was 60%.  Discounting Washington, DC (which has a small population, which voted 90.4% for Clinton and 4.1% for Trump), the largest winning percentage was 68.5% of the voters in West Virginia, who voted for Trump. 

In all, the winning voting percentage in only 14 states was 60% or higher.  In 23 states, the percentage was in the range of 50% to 59%.  And in 13 states, the winning voting percentage was between 40% and 49%.  Even in the most run-away percentage victory, it was a very far cry from unanimity or even overwhelming majority.  So, the idea that in a popular election, focusing on only the most populous states would be a good strategy—and, therefore, a matter for serious concern—seems absolutely misguided.

Aside from that, the idea that an electoral college eliminates – or even mitigates – the possibility of a tyranny of a majority is equally wrong.  Rather, there is at least the same worry in an electoral setup: focus on winning only the states with the largest numbers of electoral votes, and you’ll win.  Two hundred seventy electoral votes is the number needed for victory.  Focus on only 6 states, and you will be looking at 189 electoral votes.  Paying attention to the next 5 states in terms of their electoral numbers, and you’ll be up to 268 votes.  That’s only 11 states (out of 50 states plus the District of Columbia), and you’re only 2 electoral votes short of having the election in your pocket.  

Moreover, unlike the actual voting numbers, in almost all states, no matter by how small a margin you win a state, you get all its electoral votes.  So one should worry more about a tyranny of the majority under the current system (keep in mind that the number of electoral votes that any state has is a function of the size of its population[5]).  You won’t need to get an overwhelming victory anywhere.  You’ll only need to scrape in, and the prize of all that state’s electoral votes will be yours.

There is no national law that stipulates how states must exercise their Electoral College votes.  As I mentioned, almost every state devotes the entirety of its electoral votes to the one candidate who secures the majority (or plurality) of votes in that state – it is a winner-take-all situation.[6]  But this is not mandated by any federal legislation.  It is here, I believe, that a reasonable and significant change could occur. 

Suppose, rather than abandoning the Electoral College, we thought about a desirable alteration.  How about this:  rather than all of a state’s electoral votes being allocated to one candidate, as is currently nearly universally the case, the electoral votes are awarded on a proportional basis.  For example, if one candidate gets 60% of the popular vote, then that candidate would receive 60% of that state’s electoral votes.  If we were to keep the electoral college system, then what could be the objection to this change?  Could there still be the (misguided) worry that the result would fail to protect against the possibility of a tyranny of the majority?  I’ll return to questions like these a bit later.

In the following table, I’ve shown the following for the 2016 election:

  • The percentage of popular votes that each of the two main candidates received in each state.  I have rounded the percentages:  ‘xx.5%’ is rounded up to the next whole percentage; ‘xx.4%’ is rounded down.
  • The distribution of electoral votes as they were actually awarded in the 2016 election.
  • What it would look like if the electoral votes were distributed proportionally, according to the popular vote percentage.  (Here, too, ‘xx.5%’ is rounded up to the next electoral number, and ‘xx.4%’ is rounded down.)
    • This has left a total of 24 electoral votes that would not immediately be awarded to either candidate.  There is a question about what to do with these votes, or if they should be distributed at all.
    • Those 24 votes (or at least a portion of them) are important in this election, in that neither candidate would have initially received the required majority (270).

There is, of course, a Constitutional answer to what to do if no candidate receives a majority of the electoral votes.  The US Constitution allows that in the distribution of electoral votes (however the states have individually seen fit to distribute them), if no candidate has a majority of the votes, then there should be a vote in the House of Representatives, where each state (regardless of its population) gets one vote.  (And here, the District of Columbia doesn’t get a vote.)

Similarly and independently, the Senate chooses a vice-president.

And then there’s more detail, about if there’s a tie, and so forth.  But that doesn’t matter here.  What matters here is only whether those who think the electoral college should be preserved (for whatever reason) would think that a state-by-state proportional awarding of electoral votes is a fairer way of distribution of electoral votes.

Maybe it wouldn’t get as far as having to decide what to do with the electoral votes cast for “other,” i.e., those outstanding electoral votes (ones not immediately awarded to either of the top two candidates) – either because there were no outstanding votes (unlikely) or because one candidate already has a majority of electoral votes without them.  And, maybe a state would decide that, say,

  • Rounding can be more fine-grained than I have done for the following table, and/or
  • outstanding electoral votes will be all given to the candidate who otherwise has the more electoral votes from that state, or
  • outstanding electoral votes will be equally distributed between the two top electoral vote-getting candidates (with, say, any leftover vote going to the candidate with the most electoral votes), or
  • any other candidates who have received any of those votes (because the percentage of the popular vote that they received was enough to garner for them at least one electoral vote) can have nominated their preference for where their electoral votes will go,. or
  • …(there are plenty of possibilities)

These are important matters, but not insurmountable difficulties.

The following table shows how things were and how they would have been for the 2016 election.

The problems of how to handle the electoral percentages and how, exactly, to deal with the outlying 24 electoral votes in this case are not insurmountable.  They certainly aren’t ones that should, by themselves, constitute a reason for not supporting a proportional electoral college voting system.  On the face of it, it seems to me that concerns about tyranny of the majority (as well as concerns about general fairness) have no force here.  (I do admit, however, that I believe that those concerns have been almost entirely misguided anyway.)

My remarks here are not intended to be particularly in support of a proportional electoral college system – any more than doing away with the electoral college altogether.  The points are, rather, to show that a central argument in support of the electoral college system (protection against tyranny of the majority) is not a good argument at all (it is, in fact, a terrible argument), and to suggest that even if an electoral college is maintained, there is at least a fairer way to do it (viz. a proportional electoral college system).

Practical Matters

Doing away with the Electoral College would, of course, be a big deal – and it would be hard to do.  It would require a joint resolution agreed to by a two-thirds majority in both the House of Representatives and the Senate.  From there it would have to go to the state legislatures, where a three-quarters approval would be necessary.  Constitutional amendments are a really big deal.

I mentioned above that there is no federal direction about how states’ electoral voters must vote.  In “How Do Different States Allocate Their Electoral Votes?”, Cherie Braden discusses state-to-state differences.[7]  The differences are interesting, as is her account of whether and how electors are, in fact, bound to cast their ballots for the candidate who won the popular vote (how there can be “faithless” electors).  It is also interesting (and surprising) to learn of the difficulties involved in tracking down exactly where, in the states’ statutes the different states have stipulated their requirements.  For my purposes, however, it is important to know only that it is up to each state to set out these requirements however they decide.  Getting all the states to change to a proportional system would also be a big deal.  I don’t know if it is as big a deal as a constitutional amendment.

So, which would be preferable: 

  • a constitutional amendment doing away with the electoral college in favor of a popular vote, or
  • a constitutional amendment stipulating how states’ electors must vote, or
  • a push to get all states separately to change their statutes regarding the duties of electors, so that they vote proportionally to the popular vote.  There would, of course, be a problem here of how to determine which particular elector is instructed to cast his/her vote for which candidate.  But, if the voting procedure/requirements became purely mechanical (determined by arithmetic alone), then there would not have to be actual hands raised in the air, or ticks placed on voting papers.  But mainly, like the problems noted above, these problems do not seem to be insurmountable, although they would have to be resolved.

In the context of so much talk about the electoral process, I simply raise these points as ones that seem important to consider.

A Word about NPVIC

“The National Popular Vote Interstate Compact (NPVIC) is an agreement among a group of U.S. states and the District of Columbia to award all their electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia.  The compact is designed to ensure that the candidate who receives the most votes nationwide is elected president, and it would come into effect only when it would guarantee that outcome.  As of July, 2019, it has been adopted by fifteen states and the District of Columbia.  Together, they have 196 electoral votes, which is 36.4% of the Electoral College and 72.6% of the 270 votes needed to give the compact legal force.”[8]

The proposal was initially suggested in 2001, and by 2007, NPVIC legislation had been introduced in 42 states.  Five of the 15 states that have adopted the NPVIC have done so subsequent to the 2016 presidential election.

There are questions about whether such a compact is legal or, in fact, violates the Constitution.  The point here, however, is that the NPVIC is yet another alternative to leaving the Electoral College to function the way that it currently does.  One way to see this alternative is as an agreement among states to subvert the Electoral College, without the difficulties associated with trying to pass an Amendment to do away with it in favor of having the presidential election decided straightforwardly by the popular vote.  As with my suggestion about states agreeing to proportional apportioning of their Electoral Votes, this suggestion requires cooperation among the states.  With the NPVIC, however, cooperation is required among only enough states to control the majority of the Electoral Votes.  But, as I mentioned, there are serious questions about whether the NPVIC is Constitutional.

Stephen Cohen is Associate Professor of Philosophy at the University of New South Wales, Sydney, Australia.  His published books and essays are in the areas of moral reasoning, practical ethics, philosophy of law, and business and professional ethics.  He also consults with businesses, professional bodies, and the public sector about moral reasoning, organizational values, and professional ethics.

References

[1] Thanks to Damian Grace and to Chris Maden for their comments on and encouragement about my initial thoughts on the matters covered here.  And thanks to Alex Cummings for his suggestions about how to make the discussion better.

[2]  The Federalist Papers, No. 68:  “The Mode of Electing the President”

[3]  Hamilton, The Federalist Papers, No. 68.

[4]  In fact, this isn’t far from the truth of the situation of population in the earliest days of the US Constitution.

[5]  The number of a state’s electoral votes equals the combined total number of its senators and congressional representatives.

[6] In the 2016 election, the winning percentage in 13 states was a plurality (not a majority); and some were really close.  In Michigan, Trump received 47.5% of the popular vote, to 47.27% for Clinton; and Trump received all 16 electoral votes.  In New Hampshire, it was 46.98% for Clinton, and 46.61% for Trump; and Clinton received all 4 votes.  In Pennsylvania, Trump received 48.18%, while Clinton received 47.46%, and Trump got all 20 electoral votes.  And in Wisconsin, Trump received 47.22% of the popular vote to Clinton’s 46.45%, and Trump won all 10 electoral votes.

[7] Cherie Braden, “How Do Different States Allocate Their Electoral Votes?” Tropics of Meta, September 16, 2013. 

[8] The fifteen states are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington; and also the District of Columbia.