Why Splitting Electoral Votes Proportionally Is Not the Answer

In another post, we discussed the problems with dividing a state’s electoral votes by congressional district (in a word: gerrymandering).  Another proposed solution to the winner-take-all problem is allocating electors proportionally based on the votes of the state at large.  Simply put, if a candidate won 70%-30% in a state with 10 electoral votes, 7 votes would go to the winner and 3 to the runner-up. 

The upsides of this proposal are that more votes would matter, turnout would increase, and candidates would have incentives to go to more places. But proportional representation is unlikely to create a national campaign, nor would it make every vote truly equal.  Indeed, a proportional system may lead to an even more undemocratic result than is likely under our current system.

While there would be fewer wasted votes under a proportional system, it would not make every vote count. Absent a constitutional amendment, the votes would have to be rounded to the nearest whole elector.  So there would still be wasted surplus votes and votes for the runner up that do not count in the final tally.  In close elections, this could lead to the winner of the national popular vote still losing the presidency.

There is also a feasibility problem. Unless all or almost all states signed on, the campaigns would still not be truly national—and many states will be unwilling to split their votes for fear of losing political influence. 

Splitting up a state’s electoral votes makes sense for a few small states—like Maine and Nebraska—that are perpetually ignored.  But most states adopted a winner-take-all system in order to increase their political heft. They wanted candidates to campaign in their states in hopes of winning a large number of electoral votes at once.  Therefore, states will be unlikely to unilaterally split their votes for fear of losing that clout. 

Safe states would hesitate to give up any of their votes to the other party, and swing states would hesitate to lose their special status. And as long as just a few big swing states kept the winner-take-all system, candidates would have a strong incentive to focus their campaigns on those states alone rather than battling it out for the one or two swing electoral votes in most other states.

So in order for proportional representation to work, there would have to be an interstate agreement similar to the National Popular Vote Interstate Compact. But unlike the Compact, which only needs states with 270 total electoral votes to go into effect and guarantee a truly national campaign (and has 196 votes committed from 16 jurisdictions now), a proportional system would require nearly all the states to participate to be effective.



Youth must be served

As this article explains, voter turnout among youths can be decisive in elections.

But the electoral college system in this century is biased against young voters. Why? Swing states such as Florida, Pennsylvania, Michigan, and Wisconsin, have some of the highest median ages in the country:

The key swing states Florida and Pennsylvania have the first and second highest percentage of residents over the age of 65. Voters in these older states decide the election and the young people everywhere else are taken for granted. 



The electoral college frustrates the majority

This is from a recent poll:

“Overall, the top issues for Americans as the 2020 election nears are the economy, health care and immigration. Foreign policy, gun violence, taxes, issues of special concern to women and abortion follow behind. Climate change trails the others — but still over half say it’s at least ‘very important.’”

On all these topics the majority of Americans have a strong desire for reform. But they can’t get what they want from presidential candidates who focus on fomenting divisiveness in a few swing states.



Former Romney Strategist: The National Popular Vote is Better for America and Republicans

Republican strategist Stuart Stevens explains that the perceived advantage that the Electoral College gives to Republicans will not last, and that we would be better off with a system in which every vote counts equally:

The argument that abolishing the Electoral College would result in campaigns only targeting large urban areas simply doesn’t make sense. In America’s largest states like California and Florida, candidates campaign all over the state. The benefits of campaign appearances are far more about driving a message than the acquisition of votes in that particular market. In a recent race for the U.S. Senate, Democrat Beto O’Rourke campaigned in each of the 254 counties in Texas despite the fact that 84% of Texans live in urban areas. The idea that suddenly, presidential nominees would run campaigns like mayoral races in big cities is a fanciful excuse to justify an outdated system of electing a president.

The Electoral College has never performed as intended, with electors acting as a deliberative check on the whims of a national election. In practice, its only function is to allow for the possibility that the choice of a plurality of American voters will be thwarted and subject America to minority rule.



It’s the system

The point is that the Electoral College system motivates the candidates from the major parties not to move to the center of the country. Instead, they should and must focus only on what drives turn out in a handful of states that are not necessarily representative of the rest of the nation.

Here a New York Times columnist plumps for anyone but the incumbent, but misses the point of what the system causes to happen:

“A majority of the American electorate — liberals, moderates and even some conservatives — want a greater government role in health care, a higher minimum wage, higher taxes on the rich and less punitive border policies. If Trump isn’t going to move to the center, then their only choice should be the party that, no matter its nominee, backs each item on that list.”



The electoral college encourages racism

Everyone knows the electoral college was originally designed in large part to win support from the constitution from slave states. But not everyone realizes it is still doing its work of dividing the country on the basis of race. As this article shows, the Trump presidency has relied on racial division to attract a base of supporters. 

But completely left out of this article (as is typical for all political reporting) is the fact that racism can be the key to winning the presidency only because of the electoral college. Inciting racism would doom any candidate who would need to win the national popular vote. Where is the NAACP on this topic?



Who cares what most people want?

It never even crosses the mind of the CBS reporter or the Trump campaign manager that most people in the country disapprove of the president.

In America’s screwy system, that doesn’t matter. Donald Trump only needs to win Florida to be in the re-election catbird seat. That’s why he kicks off his campaign there. No one comments about that either.  It is taken for granted that the president should be reelected or not based on whether he gains a narrow plurality from people in Florida and a couple other swing states. 

Then his campaign manager talks about a “landslide” consisting of winning by a few votes a couple of very tiny states that Trump did not carry in 2016. This is a landslide composed of a couple of pebbles. 

Donald Trump currently holds the record for consistent disapproval. No matter. Unless a few states change the way the electors are picked, most Americans don’t matter in picking the president. This is the reason why it was dreadful that the governor of Nevada vetoed the National Popular Vote Interstate Compact. He could’ve been part of the most important reform in the political process. He could have been somebody. 



Who do they fear?

The Supreme Court embraces distortions of democracy. Normally people endorse an outcome out of fear of the alternative. If the Supreme Court had stood up for democracy and given people a fair representation in the House, what did the five fearful right wingers think would happen?

Obviously they assumed the House would be more likely to be controlled by the Democratic Party if everyone’s votes were fairly districted and of course one unifying theme among the Bush-Trump five is their disdain for Democrats.

Several of them in particular recall their bitter confirmation hearings and most people can remember that the last justice confirmed clashed in an ugly way with Democratic senators (three of whom are now running for president).

The short answer is that the majority on the Supreme Court does have a lot to worry about if the Democratic Party benefits from democracy. They might be subject to ethical standards which would be a shock for them. They might find the court was expanded from nine to a more reasonable number and their majority voting block would be diluted.

The block only exists after all because the loser in the national popular vote became president anyhow and packed the court with anti-Democrat ideologues. (Look at their personal histories if you doubt this. These are partisan warriors.) This block is the epitome of minority rule and anything that supports majority rule is a threat to its hegemony.

The block of five cares immensely about maintaining power. The notion that they respect some abstract set of legal principles, history, or a code of ethics is a juvenile fantasy. Gerrymandering obviously violates the fundamental principle of the United States Constitution which is that power comes from the people. In the actual lived experience of the five people who control the majority of the Supreme Court (and make the law be what they want it to be) power comes from a minority of the people and that’s the way they want to keep things.

I went to law school with two of these justices. I can testify that they always regarded themselves as at odds with the wishes of the majority of Americans. Nothing new here. They have not changed a bit. They’ve become more rigid over time. And dangerously more powerful.

Under these circumstances the only way to restore the Supreme Court to its right role as the defender of liberty and champion of democracy is to get a president chosen by the plurality of the country who then vindicates the wishes of the voters in picking members of the Supreme Court.

If about 23 or 24 states decide that their electors will vote for the national popular vote winner then the candidates will have to compete to win the national vote. Then the elected president will stand up for the people against the current Supreme Court, which is obviously not the friend of the people. Under those circumstances only a switch in time could save the nine and that is the situation the right wing block needs to face. This is all about power and not one bit about a reasonable interpretation of law.



Nationally women can win

This article starts with the assumption that the American electorate is somehow biased against women candidates. In fact it is the electoral college system that is biased. If the president were elected by the national vote then women candidates would usually be competitive and of course one already would have won.

The American people are not biased against women. The system is. The shame is that feminists regardless of gender are not more vigorously rallying against the electoral college system.

The reason the system is biased against women is that by chance in the swing states a large fraction of women are evangelicals. They do not support much of the agenda that commands the adherence of a large majority of women nationally. So this minority fraction of women frustrates what most women want. This is a failure of democracy.

Now that the Supreme Court has opted out of its historic role of promoting democracy, it is even more important for women at large to change the electoral system. Feminists can’t count on the Supreme Court, and especially not on the five male conservative members, to help them out.



Electoral college reform matters more than ever

The Supreme Court’s decision to bar the federal judiciary from addressing partisan gerrymandering lets state legislatures deprive blocks of voters from congressional representation — subject only to review by state courts whose members are confirmed by the same legislatures or possibly elected through the same gerrymandering. 

Republicans in Maryland or African Americans in North Carolina are just two examples of the victimized groups. 

This ruling opens the door for states to adopt a district system for choosing electors that would gerrymander picking the president.  

While the Supreme Court continues to make its negative contributions to the survival of the American republic, it is even more important that every American voter counts and counts equally in electing the president of the United States. Then a future president, one who wins the national plurality, might appoint justices who are committed to promoting democracy. 

Politicians, donors, and voters really have to get on board the national popular vote train. The country is in a bad fix. 

It’s a shame that the Democratic legislatures just frustrated reform in Maine and the governor of Nevada vetoed the reform bill. Dems be woke please. 



The Supreme Court Will Not Stop Partisan Gerrymandering, Leaving State Legislatures to Police Themselves

In a much-anticipated ruling, the Supreme Court ruled in a 5-4 decision that “Partisan gerrymandering claims present political questions beyond the reach of the federal courts.”  That means that the courts will not intervene to stop state legislatures from drawing bizarrely shaped and unfair districts designed to dilute many people’s votes in order to gain a political advantage, no matter how egregious. 

Partisan gerrymandering means that through clever drawing of district boundaries, a state legislature can minimize the impact of political opponents’ votes, and can win a majority of seats despite winning fewer votes:

In the case before the Supreme Court, the North Carolina representative in charge of drawing the state’s congressional map proposed an explicitly partisan gerrymander, saying “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”   The plan worked.  In 2016, Republicans won 50.3% of the votes for Congress but won 10 congressional seats.  In 2010, before the hyper-partisan map was in place, Republicans won 54% of congressional votes and six out of 13 seats.  Today’s decision also addressed a congressional map from Maryland designed to benefit Democrats in that state.  

The majority opinion, written by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh, did not deny that partisan gerrymandering could be used to effectively disenfranchise many voters, or even that it was “incompatible with democratic principles.”  Nevertheless, the majority found that the claims were non-justiciable.  In other words, the Court decided that because it could not come up with a standard to determine which gerrymanders went too far, the judiciary would not intervene in these claims at all. 

Instead, the Court left it to the states to police themselves.  The majority stated that one way states are addressing this problem is “by placing power to draw electoral districts in the hands of independent commissions.” 

It is true that in 2018, voters in Colorado, Missouri, and Michigan overwhelmingly voted to approve constitutional amendments creating commissions tasked with drawing fair congressional and state legislative districts.   

However, that does not mean that the people’s desire for fairness will be respected.  In Missouri, the state legislature is doing all it can to thwart the will of the people and keep the power to draw their own districts for themselves. Lawmakers tried to reverse many of the ballot measure’s protections, and vowed to try again next year before the changes go into effect in 2020. 

 There is, of course, every incentive for legislatures to fight to keep the power to draw their own districts in the most favorable way possible in order to maintain their power.  If they do not give it up willingly, today’s decision means that the people cannot turn to federal courts to preserve their rights to vote in fair elections.



Why Allocating Electoral Votes by Congressional District is Not The Answer

The problems with the way we choose our president are numerous and severe, including:

  • disproportionate attention to swing states (both during and after elections);

  • effective disenfranchisement of citizens who live in “safe” states for one party but prefer another party, leading to low turnout;

  • threats to our national security due the small number of states a foreign hacker can target to change the outcome of the election;

  • the fact that the winner of the election may not be the person who got the most votes—an outcome that we will see more and more.

Some people, recognizing the seriousness of the problems with our system, have suggested an alternative: allocating electoral votes by congressional districts instead of giving all of state’s votes to the plurality winner. 

Each state has a number of electors equal to its representation in Congress—two votes for the Senate, and a number that varies based on the state’s population for the House.  Under this proposed system, each state would allocate two votes at large for the overall winner of the state and the rest of the electors would go to the candidate that wins each of the congressional districts.  This is how Maine and Nebraska allocate their electoral votes.

Proponents of this system argue that it would be more fair, and that it would be less likely to result in a candidate winning the national popular vote while losing the Electoral College.  However, this is not true for one simple reason: gerrymandering.

Gerrymandering is a serious problem with our representative system. For example, in 2016 and 2018, Republican congressional candidates in North Carolina won about 50% of the congressional votes in that state, but claimed victory in 10 out of the states 13 districts (the Ninth District will have to vote again following election fraud in 2018).

Under this map, a Democratic candidate could get a plurality of votes in North Carolina (as Obama did in 2008) but still only be awarded only 5 out of the state’s 13 electoral votes (winning in 3 districts plus the 2 at-large votes). 

Because of gerrymandering, allocating electors by congressional district will actually be more likely to result in popular vote losers becoming president than the current system.  If the 2012 election had been decided based on congressional districts, Mitt Romney would have defeated Barack Obama in the Electoral College 274-264, despite losing the popular vote by nearly five million votes.  Donald Trump also would have won under this system in 2016 despite losing the popular vote. The incentive to gerrymander would increase exponentially if congressional districts determined control of the White House as well as control of the House, making the problem even worse than it is now.

As candidates adjusted their strategy to focus on the 16% of districts that are “swing” districts, a split between the popular vote and the electoral college will be even more likely.

The vast majority of voters would live in “safe” districts, meaning that most people still would have little incentive to turn out to vote and their concerns and issues will be ignored as they lose out on federal funding to swing districts. The swing districts will become the new target for election meddlers.

Proponents of district-based electoral allocation recognize that gerrymandering would have to be addressed before the system would be fair. However, the Supreme Court has refused to address partisan gerrymandering, no matter how egregious.

Accordingly, allocation of electors based on congressional districts would only make elections more unfair and would not solve the problems with our current system.



Elizabeth Warren has a Plan to Make it Easier to Vote—But It Won’t Make Most Votes for President Count

Senator Elizabeth Warren has released her detailed plan aimed at making voting easier and elections more secure. Her plan includes modern voting machines with paper ballot trails, mandatory automatic and same-day registration, early voting, vote-by-mail, and making Election Day a federal holiday.  All of these ideas would make it easier to vote, but a bigger problem would remain: most people’s votes for president still would not count.

Right now, the candidates make no effort to win the votes of most Americans.  In all but two states, all votes for the runner-up candidate and all excess votes for the winning candidate are systematically disregarded.

Warren’s plan calls for a bonus in federal funding for states that achieve high voter turnout rates.  But she doesn’t mention the reason that voter turnout in many states is so low: people rightly understand that their votes for president do not matter.  It should come as no surprise that voter turnout is generally much higher in states that were contested in recent elections than in safe states.  If the votes in every state mattered as much as they do in swing states, we could expect turnout to increase by tens of millions of votes.

Warren also notes that our current elections pose a national security vulnerability.  However, she doesn’t mention the fact that part of the reason we are so vulnerable to foreign interference is that our elections are decided by just a few states.  This quirk of our electoral system makes it easier and cheaper to target the places that matter.  Under a national election, it would be much harder to skew the results because every vote everywhere would count, not just the votes in a handful of swing states. 

Fortunately, making a national popular vote a reality is not up to presidential candidates.  It is up to the states to decide how to allocate their electoral votes.  If enough states agree to pledge their electoral votes to the winner of the national popular vote, turnout will drastically increase, elections will be more secure, and, most importantly, the vote that every person casts will be counted in the final tally.



Electoral college doesn’t like health care

The electoral system is the reason why these red states get away with not expanding Medicare. Why? Because candidates in both parties don’t campaign there. The pluralities are foregone conclusions. Those who suffer don’t count because rural poor are outvoted by suburban voters, and they aren’t permitted by the system to vote with similarly affected people in other states.



"A Very Plausible 2020 Scenario"

A split between the Electoral College and the popular vote is very likely to happen again in the next election, with an even popular bigger margin for the candidate who loses the Electoral College.


Impossible

If the national popular vote chose the president, it would be impossible for a president seeking a second term to block the printing of the following:

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Such a move would cost too many votes. 

Under the current system, most of the aggrieved, those who are meant to be recognized by this image commissioned by the Obama Administration, are in states where they are outvoted by a majority of a different race, and so they have no weight in the calculus of winning the general election for president.