by Bruce Dunlavy

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When the Framers were putting the Constitution together, they were forging into a political wilderness. No country before had done anything that involved the process of writing a document whereby the nation and its people would be governed by a supreme law and not a supreme person or group of persons, and the leadership of the nation would change peacefully on a regular schedule.

Complicating the process was the need to unite a group of discrete states that differed in size, demographics, economic underpinnings, religious and political history, and – most importantly – views on slavery. In order to draw all thirteen of the former colonies under a single government, accommodations would have to be made to address the particular demands of the participants.

These accommodations ranged from the seemingly picayune (e.g., Article I, Section 9, Clause 6, included at the insistence of Maryland) to the massively intrusive, such as the first paragraph of Article I, Section 8, which allows Congress to collect revenue from the States. Having only the failures of the Articles of Confederation to work from, the Framers remained uncertain how this new form of government would play out. As a result, much of the Constitution is vague or ambiguous. I think the Framers wanted it that way, both to ensure that they could get as many States on board as possible and to allow kinks in the system to be worked out without having to continually propose and enact Constitutional amendments.

The most significant problem was how to arrange things so that the biggest States did not have power to craft everything to their own desires, especially considering that a large portion of the population of some southern States included persons who were not citizens, but property. As a result, the Framers had to work out compromises that were inherently undemocratic.

By including the Three-Fifths Compromise, the Framers were able to placate slave States enough to get them to buy in, but the issue of the influence of tiny States such as Delaware and Rhode Island was something that required giving those States disproportionate power. Of course, it was clear to all that there was no way to achieve a workable union if each State had equal representation in the national legislature. Relative sizes had to be included as well.

The solution was the Great Compromise, also known as the Connecticut Compromise, after its creator, Roger Sherman of that State. The Framers had already decided that the government of the United States would be modeled after that of England. There would be a single executive (though elected, not hereditary), a bicameral legislature, and an independent judiciary. Edmund Randolph of Virginia had proposed in early 1787 that both houses of the legislature be chosen according to the population of each State, a position supported by the very influential James Wilson of Pennsylvania (who also unsuccessfully proposed a popular election for the President). This caused the smaller States to threaten to – as Delaware’s Gunning Bedford, Jr., put it – “find some foreign ally of more honor and good faith.”

The most influential of the Framers, James Madison of Virginia, along with New York’s Alexander Hamilton, tried to assuage the small States’ fears by pointing out that a tyranny of the large States was improbable, as they had such varying interests that they would be unable to agree on much.

Eventually, Sherman’s plan was adopted, and the result was an upper house with two members appointed by each State legislature.  This equal representation was made permanent by Article V, which contains the guarantee that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

When Article Two created the method for choosing a president, each State legislature was given the right to appoint as many Electors as it had Representatives and Senators. This, too, gave disproportionate power to the smaller States. The Framers were prescient men, but they could not anticipate that in 2020 there would be a State with half a million people and another with forty million.

Since the Senate was to be a deliberative body of the wise and experienced, not directly elected by the fickle hand of the people (direct election of Senators was not mandated until the Seventeenth Amendment in 1913), it was given exclusive authority in certain areas. One of these is in the matter of Presidential appointments. The Senate alone has the power to accept or reject treaties and nominees for appointed offices, including members of the bench of Federal courts.

What emerged over time was a Senate that had potent authority despite its undemocratic makeup. It was noticed early that this could present a problem, and so it became customary to admit new States (and thus new Senators) in pairs. First, one slave State and one free State were admitted (e.g., Indiana, Mississippi, Illinois, and Alabama in successive years from 1816 to 1819), and then one Republican State and one Democratic State (such as Alaska and Hawaii in 1959).

That practice kept the Senate more or less balanced, with one notable exception in the late 1800s. The undemocratic makeup of the Senate, and by extension the Electoral College, has always allowed for the possibility that the candidate winning the Presidency could be one who did not receive the most votes from the citizens simply because his smaller vote total was fortuitously distributed among the different States.

Such a case did happen in 1888 (the minority-won elections of 1824 and 1876 were different issues altogether), when Benjamin Harrison was elected. He unseated the incumbent Grover Cleveland by amassing an Electoral vote margin of 233 – 168, despite Cleveland’s having won the popular vote by 48.6 percent to 47.8 percent.

Cleveland returned to oust Harrison four years later, but in the meantime the Harrison Administration  and a Republican Congress had admitted six new States.  North Dakota, South Dakota, Montana, and Washington were admitted during a ten-day period in 1889, and Wyoming and Idaho were admitted in July of 1890. From that time until now, a substantial majority of the Senators from those States have been Republicans, thus skewing the makeup of the Senate and the Electoral College in that direction.

The situation that prevailed in the 1888 Presidential election did not recur for the rest of that century and the next. However, in two of the last three elections, a Republican candidate has lost the popular vote but won the Presidency by gaining a majority of the Electoral Votes. As I write this there is a possibility, though a remote one, that it could be happening again in 2020.

One Republican president so elected was able during his four-year term to nominate three members to the Supreme Court, while the Republican-led Senate had refused to act on such an appointment by his Democratic predecessor. The Framers likely did not expect such open partisanship to affect the governing of the nation.

They also made it very hard to amend the Constitution, and it is even harder considering that amendments must be ratified by State legislatures, with a State as big as Texas (29 million) having no more influence than one the size of Vermont (625 thousand). Under those conditions, we have a serious problem that may become a Constitutional crisis.

A lot of very small States have disproportionate power in Electoral College (which chooses the President) and the Senate (which confirms presidential appointments).  The Republican Party, which has not maintained a popular majority in national voting for a very long time, nevertheless usually has nine or 10 or Senators and 16 electoral votes from the five smallest of the six States introduced during the Harrison Administration. These States have a combined population of just over five million. There are 23 other States that each have a population bigger than that.

While the majority Democrats have usually held the House of Representatives (where all revenue bills must start), they need concurrence of the Senate and the President to enact any laws, and they have no say in the confirmation of members of the Supreme Court and other Federal courts.

Thus a party that is a virtually permanent minority is able to control all three branches of government without consulting the majority party.

The Constitution does not allow for any changes in the makeup of the Senate, and an amendment to allow that is unattainable. Thus the only avenue available to correct the imbalance in government is to change the way Presidents are selected.

Image credit: washingtonpost.com

The Electoral College system has more problems than just being inherently undemocratic and allowing for a popular vote loser to win the presidency. It also does damage in other ways.

One salient example is that the Electoral Vote system effectively disenfranchises millions of voters. It is often said by opponents of a popular-vote-only Presidential election that it would mean candidates would campaign only in highly-populated regions, ignoring the voters and issues of small States. In fact, quite the opposite is true.

It is the Electoral Vote system that causes candidates to ignore huge numbers of voters and some entire States. Consider a State such as Wyoming. Presidential candidates don’t bother with it, because it is always reliably Republican. Democrats find no value in campaigning for Wyoming voters, and Republicans don’t need to.

The same thing happens in California, which is reliably Democratic. The Republican Presidential candidate doesn’t want to try hard to win there, and the Democratic candidate doesn’t need to. President Trump has repeatedly stated that he would not prioritize the needs or desires of California because it didn’t vote for him. Yet more Californians (over 5,400,000) voted for Trump than the combined total of Trump voters in Alaska, Arkansas, Kansas, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, Utah, and Wyoming – all States which Trump won. But those Californians’ votes meant nothing in the Electoral College, and it is those regularly red States that Trump has catered to.

If a presidential election process emphasized popular votes, candidates would have to go everywhere and appeal to all voters, because there would be no votes that don’t affect the outcome. Democratic candidates would be seen in, and listen to, the people of the Great Plains, and Republicans would do the same regarding urban areas.

Another, more far-reaching, effect of the Electoral Vote system is that it warps national policy. The issues of relatively small constituencies receive disproportionate emphasis depending on where they are located. I currently reside in Florida, a State that is always an electoral battleground. Since it has 29 Electoral Votes and is very narrowly divided, much emphasis is placed on a small group that is heavily influenced by one issue. The Cuban-American community in south Florida is so important in the fight to win a State with more than 10 percent of the Electoral Votes needed for a majority that they have effectively controlled American policy toward Cuba for 60 years. By extension, American foreign policy regarding all of Latin America is affected, and not in a realistic geopolitical way. Likewise, the exaggerated influence of small agricultural States has resulted in such things as the ubiquitous ethanol in gasoline.

Is there a way that the system can be reformed? There are some ideas out there. For example the National Popular Vote Interstate Compact (NPVIC) is an agreement in which States sign on to allocate their Electoral Votes to the winner of the nationwide popular vote, irrespective of which candidate got the most votes in that State. NPVIC is stipulated to go into effect when enough States have joined to account for enough Electoral Votes to win (270).

So far, the only States that have become members of NPVIC are Democratic or heading that way (Colorado voters gave approval last week), and the total of the Electoral Votes they represent is only 196. Getting to 270 is a real stretch, and one might assume that some States may drop out of NPVIC along the road. If you’re wondering if States can legally do what NPVIC calls for, the answer is yes. The opening paragraph of Article II of the Constitution says that the disposition of each State’s Electoral Votes is decided by that State’s legislature. You will look in vain for anything in the Constitution that guarantees that citizens get to vote for Presidential candidates.

Another relatively simple reform is to have proportional voting. If a candidate receives 60 percent of a State’s popular vote, that candidate receives 60 percent of the State’s Electoral Votes. Whether such votes would have to be rounded or fractions of votes awarded would be subject to court tests for Constitutionality.

In Ireland, the president is elected by ranked-choice voting. Each voter ranks his/her choices from top to bottom. If there are five candidates, each voter lists them from first choice through fifth choice. If one candidate receives a majority of first-rank votes, s/he is elected. If not, the lowest-ranked candidate is eliminated and his/her vote is assigned to the candidate ranked second on those ballots. This continues until enough candidates are eliminated to allow someone to exceed 50 percent.

Sri Lanka has a variation of this method, contingent voting. It operates the same way, except that voters rank-order only their top three preferences.

In France, if no candidate receives a majority, there is a runoff between the top two candidates. States such as Louisiana and Georgia employ this method in State elections, and this year there will be runoffs for both Senate seats in Georgia. Of course, this method often results in the need for two elections to be held to find one winner.

The Marquis de Condorcet, an Eighteenth Century French mathematician, proposed a voting method that uses ranked voting in another way. It compares the rankings of each candidate against each other in isolation. Every candidate is looked at in comparison with every other candidate as if it were a one-on-one contest. The candidate who defeats every other candidate head-to-head is the winner.

Since there is no way to eliminate the Electoral College entirely without amending the Constitution – which, as we have noted, is not a realistic possibility in today’s political world – any of the above methods of selection would have to be undertaken State by State, and each State’s Electoral Votes allocated accordingly. That still leaves the problem of disproportionate influence from smaller States.

Since these methods require each individual State to adopt them, it is hard to imagine a scenario in which any of them are adopted nationwide. The politics of each State guarantee otherwise.

There is yet one other method of improving the Electoral Vote system itself that I have not seen widely advocated, but which seems to me to be logical and not that difficult to achieve. It could be enacted by a vote of Congress. That would be to change the number of Electoral Votes.

The Constitution, in Article I, sets forth the composition of the House of Representatives as proportional to the population as determined in the decennial national census. Thus the number of Representatives for each State fluctuates a bit every ten years. States may be allocated more or fewer Representatives (and thus more or fewer Electoral Votes), but the total number of members of the House does not change. For each Representative (and Electoral Vote) gained by one State, another State must lose one.

For the first 130 years of the republic, after every census, the number of members of the House of Representatives increased as the nation’s population increased. The first Congress (1789-1791), started with 59 seats. By the time of the 1910 census, that number had risen to 435, as the population of the country had increased from four million to 92 million.

With the Permanent Apportionment Act of 1929, Congress fixed the number of Representatives at an unchanging number based on the census of 1910. That is where we got the 435-member House of Representatives we have now. Thus the permanent number of members of the House was codified when the population of the country was 92 million – about 28 percent of the population today. Members represent an average constituency of a bit less than 760,000 people. In 1911, that number was around 212,000 people.

If House members had as many constituents today as they had in 1911, we would need a chamber with more than 1550 members. Congress can pass a law setting the number of House members at almost any number they choose. Imagine if there were 1500. California would have 177 Representatives; Wyoming would have two. California would have 179 Electoral Votes; Wyoming would have four.

While still retaining an undemocratic bias toward rural, small-population States, the Electoral College would be transformed. The power of the Wyomings, the Montanas, and the Delawares would be diluted to something more equitable.

At the same time, the individual States could reform the way their Electoral Votes are distributed. It would be easier to do so proportionately without the issue of splitting votes making so much difference. Perhaps a State like California or Arizona, both of which have nonpartisan redistricting, would find that allocating one Electoral Vote for each Congressional district (as Nebraska and Maine do now) could yield a satisfactory result.

Whatever is determined, it would likely make the United States a more democratic republic than it is now.