The experiences of the past twelve years underscore the need for election reform. The electoral college is a relic, one which can deny election to a candidate who has won a majority of the popular vote. There is too much inconsistency in the administration of elections from state to state and county to county. Congressional districts are subject to partisan gerrymandering, leading this year to a House of Representatives dominated by a party which drew far fewer total votes than the opposition. 1 States enact laws designed to interfere with voting. Pressure groups have opportunities to harass and intimidate voters. There is no federal right to vote in presidential elections. All of this needs to change. The only solution is to federalize federal elections, at least in the sense of setting enforceable standards and procedures.
The electoral college has survived despite being anti-democratic. Three times a candidate who had the most popular votes lost the election by losing in the electoral college. In 1888, Harrison was the clear winner in the electoral college despite losing the popular vote to Cleveland, so we elected the country’s second choice, but at least the system operated as designed. On the other two occasions, electoral votes were contested, but the Constitution provides no mechanism for resolving such disputes. In 1876 (Hayes v. Tilden), the outcome was decided by a commission appointed by Congress, in 2000 (Bush v. Gore) by the Supreme Court.2 Neither decision can sustain scrutiny, and both elections illustrate the vulnerability of the system to abuse.
The electoral college supposedly was adopted in part because it would produce a choice between obviously qualified candidates by leading citizens.3 That illusion was dispelled early. In fact, the electoral college has a disreputable history. It was devised by the founders as part of the compromise which accommodated slavery. Allocation to the states of seats in the House of Representatives was based on population but, as an inducement to the southern states, each slave was counted as three-fifths of a person, even though slaves could not vote. Therefore the votes of southern whites were multiplied. The electoral college allocated to each state a number of electors equal to its number of representatives plus two for its senators, so again slave states were favored. That history alone should disqualify the continued use of the electoral system.
There are, admittedly, two problems with a popular-vote system. Vote counting is much faster now than in the past, but except in blowout elections, the result might not be known for some time. Also, in numerous elections, where there have been multiple candidates, the winner of the electoral vote did not win a majority of popular votes, although winning a plurality.4 We could simply declare the winner of a plurality of votes elected, or conduct a runoff election. The latter would be more decisive but would leave the outcome in doubt for longer than probably is wise. An "instant runoff," in which voters pick first and second choices, would be better.
As one scholar has pointed out, a majority of the amendments to the Constitution adopted since the first ten (the Bill of Rights, ratified in 1791) have dealt with elections or terms of office.5 The original system having been so thoroughly modified, there is no reason to preserve the anachronism of the electoral college.
Abolishing the electoral college would require a constitutional amendment, but it could be neutralized by a device known as the National Popular Vote (NPV). Here is a summary by a supporter:
The concept is simple: individual state legislatures pledge that they’ll assign all of their electoral votes to whichever candidate wins the national popular vote — conditional on enough other states following suit. Once a majority of the nation’s electoral votes rest in states that have passed NPV measures, the laws go into effect and winning the popular vote becomes the only way to win.
(According to the NPV web site, nine states with 132 electoral votes (of 270 required) have passed such legislation). However, there is this problem:
This elegantly exploits one of the perversities of our current system—there’s no individual, federal right to have your ballot counted—and turns it against the system itself.6
Establishing a federal right to vote for president should be one of our goals.
Even more important than changing the method of election is to set and enforce federal standards for the conduct of elections. Such matters as eligibility, registration, identification requirements, early voting, polling place availability and hours, and protection of voters from interference by "observers," must be standardized, and so must congressional redistricting. Apart from the last, improved technology may be the answer, by creating some sort of computerized voting, which might also solve the slow-count problem. Voting by mail would solve some of the problems, but it exacerbates the delay in counting, especially if, as in Washington, votes are not counted as they come in, but are held until the close of the voting period. Redistricting must be removed from the partisan whims of state legislatures.
Most of the reforms apparently could be accomplished by legislation. Article I, Section 4 of the Constitution provides:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
(The provision regarding senators was rendered moot by the Seventeenth Amendment). Congressional districting might be considered an exception, but the matter already is subject to federal control; a federal statute requires that states be divided into Congressional districts, that Representatives be elected only from those districts, and that no district may elect more than one Representative. 7 Setting standards for, or even administering, redistricting would not be a conceptual or constitutional leap.
Eliminating or modifying the presidential electoral system, and creating a federal right to vote for president, will require a Constitutional Amendment. Until there is enough support for that, the NPV scheme may be the best choice.
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1.Democrats drew 1,362,351 more votes than Republicans in November, according to a count final as to 49 states. See http://en.wikipedia.org/wiki/United_States_House_of_Representativeselections,_2012 or http://thinkprogress.org/justice/2013/01/02/1382471/thanks-to-gerrymandering-democrats-would-need-to-win-the-popular-vote-by-over-7-percent-to-take-back-the-house/
2. However, only Tilden had a majority of the popular vote, 51%; Cleveland had 48.63%, Gore 48.4%.
3. See Federalist No. 68.
4. These include Polk (1844), Taylor (1848), Buchanan (1856), Lincoln (1860), Garfield (1880), Cleveland (1884 and 1892), Wilson (1912 and 1916), Truman (1948), Kennedy (1960), Nixon (1968), Clinton (1992 and 1996). See http://presidentelect.org/e1976.html .
5. Michael Dorf, "We Need a Constitutional Right to Vote in Presidential Elections," http://writ.news.findlaw.com/dorf/20001213.html. The list includes Amendments 12, 14, 15, 17, 19, 20, 22, 23, 24 and 26.
6. Quotes from Katrina vanden Heuvel "It’s Time to End the Electoral College," 11/7/12: http://www.thenation.com/blog/171115/its-time-end-electoral-college#. The NPV solution treats a plurality of popular votes as the test for election. See http://www.nationalpopularvote.com/ .
7. See US Code §2, which also specifies the time of election, and provides: "All votes for Representatives in Congress must be by written or printed ballot, or voting machine the use of which has been duly authorized by the State law. . . ." Those rules apply Article I, Section 4 as to time and manner of holding elections.
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