Reforming the Electoral College – Proportional Representation



Photo Credit: Matt Wade via Flickr Creative Commons


By Matthew A. McIntosh / 11.15.2016
Brewminate Editor-in-Chief

The Electoral College in the United States is the system by which we elect our president.  There have been elections – including Gore v. Bush and most recently Clinton v. Trump – in which the losing candidate won the popular vote while the victor took the Electoral College.  This has led to many calling for an end to this system of voting in preference of the popular vote.  The problem with this is that the system is actually very good and does not need to be replaced.  It simply needs to be reformed.

From the United States Office of the Federal Register:

What are the qualifications to be an Elector?

The U.S. Constitution contains very few provisions relating to the qualifications of Electors. Article II, section 1, clause 2 provides that no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. As a historical matter, the 14th Amendment provides that state officials who have engaged in insurrection or rebellion against the United States or given aid and comfort to its enemies are disqualified from serving as Electors. This prohibition relates to the post-Civil War era.

Each state’s Certificates of Ascertainment confirms the names of its appointed electors. A state’s certification of its electors is generally sufficient to establish the qualifications of electors.

Who selects the Electors?

Choosing each state’s Electors is a two-part process. First, the political parties in each state choose slates of potential Electors sometime before the general election. Second, on Election Day, the voters in each state select their state’s Electors by casting their ballots for President.

The first part of the process is controlled by the political parties in each state and varies from state to state. Generally, the parties either nominate slates of potential Electors at their state party conventions or they chose them by a vote of the party’s central committee. This happens in each state for each party by whatever rules the state party and (sometimes) the national party have for the process. This first part of the process results in each Presidential candidate having their own unique slate of potential Electors.

Political parties often choose Electors for the slate to recognize their service and dedication to that political party. They may be state elected officials, state party leaders, or people in the state who have a personal or political affiliation with their party’s Presidential candidate. (For specific information about how slates of potential Electors are chosen, contact the political parties in each state.)

The second part of the process happens on Election Day. When the voters in each state cast votes for the Presidential candidate of their choice they are voting to select their state’s Electors. The potential Electors’ names may or may not appear on the ballot below the name of the Presidential candidates, depending on election procedures and ballot formats in each state.

The winning Presidential candidate’s slate of potential Electors are appointed as the state’s Electors—except in Nebraska and Maine, which have proportional distribution of the Electors. In Nebraska and Maine, the state winner receives two Electors and the winner of each congressional district (who may be the same as the overall winner or a different candidate) receives one Elector. This system permits the Electors from Nebraska and Maine to be awarded to more than one candidate.

Are there restrictions on who the Electors can vote for?

There is no Constitutional provision or Federal law that requires Electors to vote according to the results of the popular vote in their states. Some states, however, require Electors to cast their votes according to the popular vote. These pledges fall into two categories—Electors bound by state law and those bound by pledges to political parties.

The U.S. Supreme Court has held that the Constitution does not require that Electors be completely free to act as they choose and therefore, political parties may extract pledges from electors to vote for the parties’ nominees. Some state laws provide that so-called “faithless Electors” may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute elector. The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No Elector has ever been prosecuted for failing to vote as pledged.

Today, it is rare for Electors to disregard the popular vote by casting their electoral vote for someone other than their party’s candidate. Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party. Throughout our history as a nation, more than 99 percent of Electors have voted as pledged.

List of State Laws and Requirements Regarding the Electors

verified as of March 1, 2016

The Office of the Federal Register presents this material for informational purposes only, in response to numerous public inquiries. The list has no legal significance. It is based on information compiled by the Congressional Research Service. For more comprehensive information, refer to the U.S. Constitution and applicable Federal laws.

Legal Requirements or Pledges
Electors in these States are bound by State Law or by pledges to cast their vote for a specific candidate:

ALABAMA – Party Pledge / State Law – § 17-19-2
ALASKA – Party Pledge / State Law – § 15.30.040; 15.30.070
CALIFORNIA – State Law – Elections Code § 6906
COLORADO – State Law – § 1-4-304
CONNECTICUT – State Law – § 9-175
DISTRICT OF COLUMBIA – DC Pledge / DC Law – § 1-1001.08(g)
FLORIDA – Party Pledge / State Law – § 103.021(1)
HAWAII – State Law – §§ 14-26 to 14-28
MAINE – State Law – § 805
MARYLAND – State Law – § 8-505
MASSACHUSETTS – Party Pledge / State Law – Ch. 53, § 8, Supp.
MICHIGAN – State Law – §168.47 (Violation cancels vote and Elector is replaced.)
MISSISSIPPI – Party Pledge / State Law – §23-15-785(3)
MONTANA – State Law – § 13-25-304
NEBRASKA – State Law – § 32-714
NEW MEXICO – State Law – § 1-15-5 to 1-15-9 (Violation is a fourth degree felony.)
NORTH CAROLINA – State Law – § 163-212 (Violation cancels vote; elector is replaced and is subject to $500 fine.)
OHIO – State Law – § 3505.40
OKLAHOMA – State Pledge / State Law – 26, §§ 10-102; 10-109 (Violation of oath is a misdemeanor, carrying a fine of up to $1000.)
OREGON – State Pledge / State Law – § 248.355
SOUTH CAROLINA – State Pledge / State Law – § 7-19-80 (Replacement and criminal sanctions for violation.)
VERMONT – State Law – title 17, § 2732
VIRGINIA – State Law – § 24.2-202
WASHINGTON – Party Pledge / State Law – §§ 29.71.020, 29.71.040, Supp. ($1000 fine.)
WISCONSIN – State Law – § 7.75
WYOMING – State Law – §§ 22-19-106; 22-19-108

Given the above information from the Federal Register and explanation of the Electoral College, how can this be made more fair?

All states, except Nebraska and Maine, award all of their electoral votes to the candidate who wins the state’s popular vote.  The two exceptions are divided into two congressional districts, and their votes may be split.

The Electoral College allows for states with smaller, rural populations to be equally represented against those with more urban, larger populations.  This is intended to prevent disenfranchising those rural voters.  But awarding all of the state’s votes to the candidate winning the popular vote has the opposite effect in that state as those in urban areas may well become disenfranchised by a candidate being chosen in collectively larger rural areas.

To present an accurate picture of what each candidate won in each state, all states should be divided into congressional districts for purposes of the Electoral College.

Let us examine Texas, which has 38 Electoral votes.  In the 2012 election between Romney and Obama, Romney won the state and hence all 38 Electoral votes.   President Obama won eleven of the districts.  A fair representation of the state would have been 27 Electoral votes for Romney and 11 for Obama.

In that case, the rural areas combined to outvote urban areas and Romney would have gained all of that with the majority of the votes while Obama would have received the votes from those districts supporting him.

Allowing all of the votes in the state has the opposite effect of that intended by the current national Electoral College as the urban areas then become disenfranchised.

One could make the argument that this opens up even more fights with gerrymandering and district redrawing, but even if only the cities themselves were taken into account the result would have been roughly the same with 27 to Romney and 11 to Obama.

An accurate depiction of the country would have no state being “blue” or “red”.  They will still likely be more of one than the other, but this has a “purpling” effect on all.

In addition, instead of having a “270 to win” scenario, we simply award the election to the candidate winning most Electoral votes.

Now, consider the 2016 election between Clinton and Trump under this scenario using averaged results from different computational methods (such as Hare Quota, Webster/Saint-Lague, etc.).  The results would have been:

Clinton:  263
Trump:  260
Johnson:  11
Stein:  1
McMullin:  1

Under this scenario, Hillary Clinton would have been the next president.  It would have been very close, and both rural and urban areas are equally represented in the vote.  This takes the battle down to the district and even county level.

In 2000, though winning the popular vote, Gore still would have lost the election under this proportional system.  As you can see, third party candidates are also able to make the board and have a demonstrable effect.

If we’re interested in fairness and accurate representation, proportionally dividing states’ Electoral votes goes a long way to accomplishing that.  If we’re just interested in continued division, then the status quo suffices.