Chapter Twelve: Why Your Vote Doesn't Always Count

Coping With A Constitutional Relic: The Problem Presented By The Electoral College

Source: https://founders.archives.gov/documents/Jefferson/98-01-02-3707

The most severe shortcoming of the American political system is the manner by which Presidents are selected. The Electoral College presents a major barrier to a system which must be founded on the principle that all votes should be equal. The Presidency and the Vice-Presidency are the only two positions in our government which the whole nation votes for. If you do not believe that every vote should be equal to every other vote, the Electoral College will not bother you. In fact, the inequality of votes is the only argument in its favor.

For example, a political scientist at Harvard, Danielle Allen, has written, “Massachusetts, where I live, is a small state. It is likely to get smaller still, relative to the rest of the country. I think it’s good that small states get a smidgen of additional protection, but I think it should just be a smidgen, not the hefty dollop that has developed over time.”¹ This is an odd assertion. Massachusetts is not a small state. With a population according to the 2020 census of 7,029,917, Massachusetts ranks 16th. With 11 electoral votes, it is tied with three other states for the 14th largest electoral delegation. Probably most people in neighboring New York, who pay the same federal taxes as those in Massachusetts, would not agree that Professor Allen’s vote should count more than theirs. Not even a “smidgen” more.

Not only is electing a national office through the Electoral College inherently unfair, but the dilemma of what happens if no candidate gets a majority of electoral votes, that is, 270, is dreadful. If no one reaches 270, we have a contingent election. The President would be selected by states whose delegations would each cast one vote in the House of Representatives. Since the populations of states vary widely from California with 39,538,223 according to the 2020 census to Wyoming with 576,851, the idea that each of these states should have one vote in choosing the President is abhorrent. This could very well happen if a third-party candidate launches a robust bid for the Presidency.

The Electoral College not only enshrines inequality in the quadrennial presidential elections, it also distorts the political system in countless other ways. Because of the Electoral College, only seven of the 50 states plus the District of Columbia matter in this election. According to one calculation, the Electoral College “rendered more than 72 percent of the votes for president in 2020 irrelevant.”² The seven swing states receive a disproportionate share of attention in terms of federal investment not just in election years but every year.

For the good of our country and for the integrity of our elections, getting rid of this incubus is a goal devoutly to be wished. But how is that goal to be achieved?

The Electoral College was established by Article 2, Section 1 of the Constitution. One would think that the best way to get rid of it would be to amend the Constitution and establish that the President, as the only national political figure, would be elected by the national popular vote. Unfortunately, the odds of such an amendment being ratified in the foreseeable future are very small.

More than 800 amendments have been introduced to change the way our nation elects its President. Alexander Keyssar, a professor at the Harvard Kennedy School of Government and the expert on this subject, reports that “roughly 10% of all amendments introduced into Congress have been aimed at the presidential election system.”³ None of these attempts have succeeded in establishing the national popular vote.

The United States Constitution has become almost impossible to amend. A total of 27 amendments have been ratified since 1787. The 27th amendment, which established that changes in the salaries of members of Congress can only take affect after the the following election of the House of Representatives, was ratified on May 7, 1992. Don’t take heart, though. It was introduced on September 25, 1789. Ratification took 202 years and 223 days. Indeed, it was all but forgotten until a college student happened upon it in 1982 and crusaded to get it ratified.⁴

Prior to that, the 26th amendment, which lowered the voting age from 21 to 18, was ratified on July 1, 1971. Pressure for this amendment arose from the Vietnam War. The thinking was that if you were old enough to be sent thousands of miles away to wander around a rice paddy getting shot at, you were old enough to vote for or against the people who sent you there.

An amendment to the Constitution must be approved by two-thirds of both the House of Representatives and the Senate and then approved by three-fourths of the state legislatures. Given the profound fissures in our nation today, this need not be discussed further.

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Source: https://founders.archives.gov/documents/Madison/04-03-02-0109

All options other than amending the Constitution are workarounds. Let us take a quick look at the one that has received the most attention, the National Popular Vote Interstate Compact (NPVIC).

The NPVIC is an agreement among a group of states (plus the District of Columbia which has three electoral votes) to award all their electoral votes to the candidate who wins the national popular vote. The Compact is triggered when states accounting for 270 electoral votes, which is a majority, have agreed to it. This proposal was introduced in 2006, and it has been adopted by 17 states plus DC. These states account for 209 electoral votes.

It is doubtful that the Compact will ever be put into effect. Red state and swing states are unlikely to sign on. The swing states benefit from the advantages the Electoral College provides to them, and the Republican Party is not in favor of a change in the Electoral College because Republicans feel it favors them. The Republican point of view is not without foundation. Republicans have won two of the last six elections, 2000 and 2016, because their candidates won the majority of electoral votes while losing the popular vote.

However, it is true that the Electoral College can work against Republicans and came very close to doing so in 2004. That year, George W. Bush, the Republican nominee, carried Ohio by 118,601 votes out of 5,627,908 cast. If Bush’s Democratic opponent, John Kerry, had received 59,301 more votes in Ohio than he did, he would have won the state’s 20 electoral votes; and he would have won the election in 2004 despite winning fewer popular votes than did Bush.⁵ If the votes cast for seats in the House of Representatives in 2022 had been cast for President, the Republicans would have won the popular vote and the Democrats would have won the electoral vote.⁶ So this fate can befall Republicans even though it has not yet done so.

Even in the unlikely event that the Compact reached 270, it would be subject to endless legal challenges, and it is unclear what its future would be. Could a state opt out once it has opted in? Would the Compact hold for every election in the future without states re-committing to it? There are a long list of such questions which lead one to believe that this Rube Goldberg contraption will never work.

A drawing by Rube Goldberg, who specialized in comically complex solutions to simple tasks.

Another possible workaround is increasing the size of the House of Representatives. By doing so, the size of the Electoral College would automatically be increased as well. This would not require a Constitutional amendment. It would require an act of Congress.

There are compelling reasons to expand the House which deal with the number of constituents per representative.⁷ This issue need not concern us here. Suffice it to say that in 1790, there were 105 Representatives in the House with an average of 34,436 constituents per district. The number of Representatives increased steadily until 1910 when it reached 435. At that time, the average constituents per representative was 212,020. The Reapportionment Act of 1929 froze the number of Representatives at 435. For more than a century, from 1910 to 2020, the number of Representatives has remained constant while the nation’s population has grown almost four-fold, from 92,228,496 to 331,449,281.

What would happen if the House tripled in size, as the population has more than tripled in size. In that case, the number of Representatives would increase from 435 to 1,305. The number of Senators would remain stable at 100 and the District of Columbia would account for nine electoral votes, because by the terms of the 23rd amendment, DC receives the same number of electoral votes as the smallest state in the union. The result would be a total of 1,414 electoral votes. Such an increase would make the Electoral College more reflective of the popular vote.

Let us see what would happen to California in this new regime. California has 54 electoral votes. Subtract two for the Senate, and 52 of its electoral votes are accounted for by its delegation in the House of Representatives. Tripling that yields 156. Adding back the two votes for its Senators, and California would have 158 electoral votes.

In this new world, there would be a total of 1,414 electoral votes. A candidate would need 50% plus one of 1,414, or 708 electoral votes to become President.

With today’s numbers, California accounts for 10.04% of the electoral vote. It accounts for 11.93% of the nation’s population, so it is under-represented in the Electoral College. If the size of the house were tripled, California would account for 11.17% of the electoral vote. That may not sound like a big difference, but elections have been won with razor thin margins. Rutherford B. Hayes won the disputed election of 1876 by one electoral vote. George W. Bush won the disputed election of 2000 by two electoral votes.

One might complain that such a number would be unwieldy and that as a practical matter there is not nearly enough office space for all these representatives. But we should never allow structure to determine strategy. In 1790, there were 105 members of the House. That number has more than tripled to 435. Probably no one in 1790, the year of the first census after the ratification of the Constitution, thought that the present size of the House was possible. For the survival of our government, dramatic moves such as this deserve consideration. Tripling the size of the House of Representatives should be on the agenda.

To review, a Constitutional amendment is the best solution to the disaster that is the Electoral College, but such an amendment will only be ratified in the far distant future if at all. The National Popular Vote Interstate Compact might solve the problem, but it is probably not going to happen soon either. Tripling the size of the House of Representatives is a good idea; but given the state of the nation now, it is hard to believe that such legislation could find its way through Congress and be signed by whoever the President is. Not in the foreseeable future.

I would like to advance another idea. Let us explore the possibility that one state puts a measure on the ballot which instructs its legislature that its electoral votes should be awarded to the winner of the national popular vote.

Restricting a national popular vote measure to one state avoids the Constitutional challenge that would probably be mounted if two or more states acted in concert. This path, therefore does not demand a Constitutional amendment. It does not demand a compact among states, nor does it demand an act of Congress. One state can do this by itself.

I live in the Commonwealth of Massachusetts, and let us use that as an example. Massachusetts has 11 electoral votes. What would be the result if the legislature directed that those votes be awarded to the winner of the national popular vote?

First let us deal with an obvious question. Would the voters of Massachusetts be outraged if a majority cast their ballots for a Democrat but its electors were pledged to a Republican, presuming a Republican won the national popular vote?

The answer is no for the following reasons. First, the voters of the Commonwealth would have already directed by a ballot measure that this should be the outcome of their election. They would have voted that the contest for the only national office in the American political system should be decided by the national popular vote. Second, Massachusetts has already signed onto the National Popular Vote Interstate Compact. That took place on August 4, 2010. I doubt that one person in a hundred thousand in the Commonwealth knows of this agreement. In the unlikely event that the Compact achieved its goal of 270 electoral votes, there would be a great deal of unhappiness in Massachusetts if it voted for a Democrat but its electors were allocated to a Republican because of the Compact.

By contrast, if voters had a ballot measure on a simple proposition that they could vote up or down, they might accept the result because they would have voted for it and because the choice that they were making would have been as clear as the compact is confusing.

The next question is: Why would a state as solidly Democratic as Massachusetts put its electoral votes in play in this manner? The immediate response is that this is the right thing to do. However, we are discussing politics in America; and that is not reason enough. If this ballot measure were approved, suddenly both political parties would have to pay real attention to the national popular vote. If the Republicans prevailed, they would win the 11 electoral votes in Massachusetts which otherwise they would not have had a chance of winning. The Democrats would also have to devote newfound attention to the national popular vote because they would not be able to afford to lose the 11 electoral votes of Massachusetts.

The advantage of this idea is twofold. First, compared to anything else, it is easy to implement. Second, this approach uses the most basic fact of American politics today – the country is sharply and bitterly divided – as the very lever to move forward into the sunlit uplands of the national popular vote.

To see how vital a single electoral vote can be, behold Omaha, Nebraska. Nebraska and Maine are the only two states that split their electoral votes. Nebraska is a deep red state, but the electoral vote in Omaha will more likely than not go to the Democrats. This is so vitally important that the Republican Party including especially Donald Trump himself applied a great deal of pressure to the Nebraska legislature to get rid of the Omaha electoral vote. Note this headline in the Washington Post: “Trump ramps up push for Nebraska to change electoral vote allocation.”⁸ One state Senator, Mike McDonnell, refused to buckle to the pressure.

To repeat the previous observation, consider how closely divided our nation is. If the Democratic nominee, Kamala Harris, takes the blue wall states of Wisconsin, Michigan, and Pennsylvania and the one electoral vote in Omaha, she will win the election with 270 electoral votes. If Nebraska had reinstituted the winner-take-all allocation which it had operated with until the 1992 election, Harris in this scenario would have 269 electoral votes, the election would become contingent and therefore decided in the House of Representatives, and she would lose.

If one electoral vote is this important, think of the prize that the 11 electoral votes of Massachusetts represents. Let us say that the ballot measure being proposed here had passed two years ago. Both the Republicans and the Democrats would have had to compete nationally for votes. If the Republicans won the national popular vote, they would win the 11 Massachusetts votes which were previously completely out of reach. Trump could afford to lose Arizona, which he did in 2020, with its 11 electoral votes. He could afford to lose Wisconsin with its 10 electoral votes or Nevada with its six electoral votes.

Moreover, it is conceivable that if Massachusetts approved this ballot measure, other states might follow. Imagine how vigorously both Republicans and Democrats would compete for the national popular vote if California with its 54 electoral votes were suddenly in play. If Trump won the national popular vote and received California’s electoral votes as a result, he could lose all seven swing states – Arizona, Nevada, Wisconsin, Michigan, Pennsylvania, North Carolina, and Georgia – as well as Omaha’s lonely electoral vote and still win the election.

Will anything approaching this ever happen? Under the following circumstances it is not only possible, it is likely. If the Democrats once again win the popular vote but lose the election because they lose the electoral vote, that will mean that for three times in seven straight elections, they won what ought to matter but doesn’t but lost because they lost what ought not to matter but does. In that case, it is hard to believe the Democrats would be averse to, as Steve Jobs so often put it, “think different.”

This speculation depends on whether or not we have any more elections if Trump wins. On July 27, Trump said in an address to Turning Point Action, "Christians, get out and vote, just this time. You won't have to do it anymore. Four more years, you know what, it will be fixed, it will be fine, you won't have to vote anymore, my beautiful Christians."⁹ It is incumbent upon every American to take Trump seriously and literally.

1. Danielle Allen, “Our democracy is menaced by two dragons. Here’s how to slay them,” Washington Post, July 20, 2023.

2. Lawrence Lessig and Matthew Seligman, How To Steal A Presidential Election (New Haven: Yale University Press, 2024) p. 154.

3. Alexander Keyssar, Why Do We Still Have The Electoral College? (Cambridge, MA: Harvard University Press, 2020) p. 5.

4. Zachary S. Elkins, “Underestimated but Undeterred: The 27th Amendment and the Power of Tenacious Citizenship,” https://www.cambridge.org/core/journals/ps-political-science-and-politics/article/underestimated-but-undeterred-the-27th-amendment-and-the-power-of-tenacious-citizenship/1912F2DC90242C6A484D340B83437E4B

5. Keyssar, College, p. 311.

6. Lessig and Seligman, Election, p. 24. But according to one authority, this may not be as revealing as it seems. “Democrats don't compete in most House seats. They compete only in contested seats.” Confidential communication.

7. The authoritative source on this subject is: Lee Drutman, Jonathan D. Cohen,Yuval Levin, and Norman J. Ornstein, “The Case for Enlarging the House of Representatives,” https://www.amacad.org/ourcommonpurpose/enlarging-the-house

8. https://www.washingtonpost.com/politics/2024/09/20/nebraska-electoral-college-trump-omaha/

9. https://www.reuters.com/world/us/trump-tells-christians-they-wont-have-vote-after-this-election-2024-07-27/