The Electoral College: A Surprisingly Easy Fix

As attention shifts toward the general election, media pundits will tout which "swing" states matter most for a Presidential candidate to reach the magic number of 270 electors. We'll be reminded that it is possible for a nominee to win the election despite gaining only a modest plurality of the popular vote, as Abraham Lincoln did in 1860, and Woodrow Wilson in 1916, running against divided opposition.

Even more bitter are recent memories of 2000, when Al Gore was the clear plurality winner, garnering substantially more votes from American citizens, yet lost the White House by one elector, because four states swung toward his opponent in squeaker tie-finishes.[A bitterness exacerbated by the 2016 election results.]

What actually caused the ructions of 2000? Despite all the attention paid to "hanging chads" and questionable or biased election management in Florida, these were not key reasons for such a profound imbalance between the popular and Electoral College tallies. Far more telling was the effect of Ralph Nader's insurgent third party candidacy, drawing off more than enough votes from the left wing to deny Al Gore victory in several states. George W. Bush is unlikely to have been the Naderites' second choice. Yet, such is the system.

Let's face it. The U.S. Presidential system has always had trouble dealing with more than two candidates at a time. Many nations resolve the same dilemma by holding run-off elections. Or those with parliamentary systems allow parties to pool votes and form coalitions. There is even the impressive preferential ballot system used in Australia, which enables voters to rank order their choices, offering sophistication worthy of the Twenty-First Century.

Unfortunately, implementing any of these solutions in the U.S. — even simple run-off elections — would require tinkering with the Constitution, which Americans seem instinctively loathe to do.

And yet, what else can be done? Every four years we we hear calls to replace the Electoral College with plurality popular voting (the worst of all possible alternatives). But nothing happens. Nor will it soon, because one party — the Republican — benefits from the status quo.

So is the situation hopeless? Not really. It turns out that the Electoral College, per se, is not what distorts the system so badly. It is the winner-takes-all method of allocating each state's electors.

This tradition seems unfair on the face of it, effectively disenfranchising the dissenting minority in every state. It also guarantees that small discrepancies in a single state may have stunning repercussions nationwide, as we saw in 2000.

Until recently, both major parties benefited. Just as gerrymandered districts give many representatives safe districts, the "winner takes all" method of parceling each state's electors rewarded both Democrats and Republicans with solid home territories, where power and patronage were secure. So what if the result was effective disenfranchisement in presidential elections for every Republican living in Hawaii or every Democrat in Mississipi? We've grown used to the grotesque unfairness. We think it is inherent. Unavoidable.

Now here comes the irony. There is no provision for winner-takes-all in the Constitution.

This system is far from natural or required. In nearly every state, electors are awarded all-or-nothing because state legislatures — generally controlled by one party — have forced unanimity onto their state's dissenting minorities. They have done this simply because they can.

There are exceptions. In 1972, Maine became the first state in recent memory to break with winner-takes-all. (Perot almost won an elector there in '92.) In 1991, Nebraska also decided that three electors would be chosen in congressional districts, and the remaining two at-large.

If all states did this, the chance of an outrageous mismatch between electoral and popular results would be reduced. Large dissenting minorities might no longer feel quite as disenfranchised, and confidence in our system would improve.

can we break the winner-takes-all habit?

There is precedent. Decades ago, both parties allocated delegates to their national nominating conventions by winner-takes-all, until this blatant unfairness was challenged, then eliminated. So why not take the next step by dropping it from the process of choosing electors? Again, this would require no tinkering with the Constitution, though changing applicable state laws might entail a fight.

Alas, no large state can afford to be the first to abandon winner-takes-all. Major party candidates would react by spending their campaign war chests elsewhere, hoping for big prizes.

Perhaps "trades" might be arranged — Utah vs. Hawaii, for instance — so that neither party feels disadvantaged.

Or else, somebody — perhaps a public interest foundation or third party — might file a lawsuit petitioning to end this archaic practice under the doctrine of "one person, one vote." There are ample precedents, clear enough even for this Supreme Court.

Yes, proportional allocation of electors might increase the likelihood that minor parties will win a few, lending increased credibility to the Libertarian and Green Parties, for example. So? This need not be unfair or disruptive. Certainly no more than we saw in 2000. More voices might even turn the Electoral College into something rather interesting, representing the diverse opinions of real Americans... perhaps even something befitting the name that the Founders gave it.

Instead of an embarrassing appendix, distorting the peoples' will, it could become an institution that fairly reflects our beliefs, worthy of the Constitution that created it.

THE END