Electoral College does not provide equal representation

VTDIGGER Nov 1 2020, 6:00 PM

Editor’s note: This commentary is by Rick Hubbard, who is a native Vermonter, retired attorney and former economic consultant, now living in South Burlington.

When adopted in 1788, our Constitution gave Americans a republic with representative democracy. Today, the underlying question about our representative democracy is: How well is it working? More narrowly, is our Electoral College providing proper representation?  

If you believe in equality of representation, the Electoral College fails miserably. By design, it ensures highly unequal representation. 

A first reason for this inequality

Since our U.S. Constitution provides every state with a minimum of two senators plus one representative (and therefore at least three electoral votes), each voter from a small state has more representation per electoral vote than each voter in larger states. This occurs in every election for president.

Each state gets its allotted number of electoral votes based on its number of senators and representatives. There are currently 538 electors, and in order to win, a candidate must get a majority of at least 270 electoral votes. 

The 538 electoral votes consist of the following: 100 senators – two from each of the 50 states — plus 438 representatives. 

These 438 representatives are calculated as follows: The first 50 relate to our Constitution’s requirement that each of our 50 states shall have at least one representative. The next 385 are divided among the 50 states, based on the most recent U.S. Census, which by law is updated every 10 years. The final three electors are from the District of Columbia, which is not a state, but for the Electoral College, is treated as if it were equal to the smallest states. 

In Vermont’s case, our 2010 population was 630,337, and we have one representative and two senators, so we may select three electors. Each electoral vote from Vermont represents about 210,112 Vermonters. 

Contrast this with one of the largest states, Texas. With a 2010 population of 25,268,418, Texas has 36 representatives plus two senators for a total of 38 electoral votes. Therefore, each electoral vote from Texas represents about 664,958 Texans. 

If we believe in the important democratic principle of one person, one vote, why should a vote from a Vermont voter be worth more than three times a vote from a voter from Texas in selecting our president? We’re all equally United States citizens, so shouldn’t we all have an equal voice in selecting our president? But we don’t. In two of the last five elections (G.W. Bush in 2000 and Donald Trump in 2016), the candidate that received the most votes nationwide did not become president.

A second reason for this inequality

In 48 out of 50 states — all except Maine and Nebraska — the votes for president from tens of millions of Americans are simply cast aside and not reflected in the Electoral College vote. 

This is because each of these 48 states allocates 100% of that state’s electoral votes to whichever candidate is the plurality winner. In Vermont’s 2016 vote for president, Hillary Clinton received 55.7% of the votes, Donald Trump received 29.8%, Bernie Sanders — despite losing the primary election — still received 5.7% through write-ins, and the remaining 8.8% were distributed among other candidates. Yet in the Electoral College, all those who voted for Trump, Sanders, and others – some 44.3% of all Vermont voters – had their votes for president completely ignored when Vermont’s Electoral College votes were cast 100% for Hillary Clinton.

In Texas in 2016, Donald Trump received 52.2% of the votes, Hillary Clinton received 43.2 % of the votes and the remaining 4.6% were spread among several other candidates. Voters for Clinton (some 3,877,868 votes) plus the votes of the other 4.6% had their votes for president completely ignored when Texas’s Electoral College votes were cast 100% for Trump.

Other problems

In every election, a majority of most states are largely ignored by campaigns since the voting outcome is fairly predictable. Thus, little money or time is spent in these so-called “safe” states. This unequally limits the opportunities of voters in the majority of “safe” states to learn about the candidates because of winner-take-all.

Sometimes, in the Electoral College vote, no candidate obtains a majority. Then the 12th Amendment of the Constitution mandates that the House of Representatives choose the president, but with each state having but one vote. If this doesn’t produce a majority there are further measures specified in the Constitution. This further undermines the equality of one person, one vote. Wyoming, with the smallest population, has as much voting power as California, with a population more than 65 times Wyoming’s.

When our Constitution was enacted, there were no political parties in existence, and much evidence suggests our Founders clearly expected electors would exercise their individual judgment in deciding who to vote for in the Electoral College. Yet, just this year, when this question about whether states could require that their electors not act independently, and even fine, remove, or replace them if they indicated they might, the U.S. Supreme Court overwhelmingly ruled against this “originalist – textualist” argument, and affirmed the right of states to do so. This raises further questions about the value of the Electoral College today.

There is also the matter of the Electoral College and its connection to slavery. Our country and its Constitution were created in the 18th century, when only white men were permitted to vote and slavery was well established. This gave more representation to slave-holding states. Although slavery was abolished in the 1860s, some think we should revisit the Electoral College because its origins were dubious.

Fixing this inequality

These examples of inequality, suggest our Electoral College is ripe for a rethink.
Some advocate replacing the Electoral College with a national popular vote which would do away with electors, electoral votes, and the Electoral College. Others advocate getting rid of winner-take-all allocation of electoral votes. Certain fixes require an amendment to our U.S. Constitution. Others can be accomplished by the states, or by Congress. Each comes with its own advantages and disadvantages. The question is: how can we best improve things?

A national effort is just beginning to grapple with all of this. It’s called Fix the College.It’s a project of the nonprofit Equal Citizens organization and its nonpartisan board, founded by Lawrence Lessig, a professor of law at Harvard.

Rather than start with one possible solution, or mix of solutions, Fix the College plans to begin with a process to carefully assemble the pros and cons of various solutions, and then to engage in vigorous debate and discussion.

It plans to launch a process committed to two principles: understanding, and conversation. It wants to identify fixes for the college that the vast majority of us could agree upon, and further, wants to find those fixes through conversations had by many, at different times, with different people. If you’d like to be part of this experiment, you can join it here.

Everything is on the table. Fix the College wants to discuss what you like and don’t like about the way we elect the president. It also wants to discuss existing reform options, including the National Popular Vote Compact, plus new ideas, and how they might help achieve a durable lasting reform that everyone can be proud of.

Massive evidence documents that our republic and its representative democracy is failing to provide representation that prioritizes serving the broad, public interests of American citizens. Necessary reforms involve fixing/repairing/strengthening many currently dysfunctional parts. If we want to unlock progress on climate change, health care, education, infrastructure, voting rights, financial protections, consumer protections, and much more, it’s time to get going. Fixing the College is one important part of this.