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Electoral College, a Threat to the Constitutional ‘Blessings of Liberty’?

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Robert Fagin, Richard dela Menardiere and Robert Doyle
October 3, 2022

The Preamble to the United States Constitution states, “… in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity do ordain and establish this Constitution for the United States of America.…” Paramount among these “blessings” is the concept of “one person, one vote”!

U.S. citizens have seen fit to amend the constitution 27 times. The electoral college (EC) was formulated at a time when literacy was lower, information technology nascent and the nation’s comfort with and confidence in an elected government still in flux. There are anomalies in the EC that are a result of the framers’ discomfort in the Constitution to work with direct democracy in an emerging nation—a check on runaway fervor for “one person, one vote” and a new notion of what the country was. Two hundred and thirty-three years later, changes are needed.

The EC was designed to provide two benefits: Some redress for smaller states vs. their larger neighbors, and to make it more difficult for the majority to tyrannize the minority. This was built on the compromise from the Constitutional Convention that provided each state with two Senators, regardless of population, to serve as a senior body of legislators who would have longer terms and give a form of equal footing in that chamber. Over time, the nation’s growth has produced 50 states. The U.S. population in 1776 was 2.5 million; it is more than 130 times larger today at 330 million.

Throughout our country’s history, there have been at least 700 proposed amendments to modify or abolish the EC, more than any other Constitutional reform. Meanwhile, we continue to see non-Constitutional processes (such as gerrymandering and Senatorial filibustering) impede legislation to address electoral vulnerabilities that are distorting and undermining the process and representative democracy. It is time to propose some changes: The turmoil of recent presidential elections has made fixing the EC a vital priority; the more divided we are, the more paramount resolving the issue of direct popular vote for the office of President of the United States becomes; and the selection of the highest office in the land should give the highest priority to the popular vote and not an artifice of bygone compromises. 

There are three recommendations:

First, the automatic plan: A Constitutional amendment. In Chiafalo v. Washington, the U.S. Supreme Court unanimously ruled that states have the power to require presidential electors to vote for their party’s candidate for president, making the need for electors themselves anomalous. In short, the purposes for which the EC was created (small states vs. large states and the impact of slavery on the census with the resultant impact on the distribution of electoral votes) no longer exists. A constitutional amendment could replace human electors with electoral votes that can be expressed fractionally, in decimal form.

It also would end the winner-take-all approach and the risk of faithless legislators by requiring states to allocate their electoral votes proportionally, ideally to the state’s top two candidates.

So far, the plan for reforming the EC that has advanced the furthest is the National Popular Vote Interstate Compact, which commits states to give their electoral votes to the national popular-vote winner and goes into effect once enough states approve it. So far, 15 Democratic states and the District of Columbia have passed the agreement. If the compact is adopted by several Republican-controlled legislatures, survives the Supreme Court and is not overturned in member states, it could be the solution the country needs. (This plan already passed the U.S. Senate once in 1950, by a vote of 64-27, as the Lodge Gossett amendment.) An alternative is that states could decide to award two EC votes to national popular vote winner and the remainder to the state winner, meaning the national winner would begin with 102 EC votes. This should prevent the popular vote loser from becoming president in most cases.

The second recommendation, the district plan (currently adopted in Maine and Nebraska), would award one electoral vote to the winning ticket in each congressional district. If adopted nationally, this would provide an outsized role to gerrymandered districts. (A variation would be to award two EC votes from each state to the winner of the national popular vote and award the remaining electors to the winner of each congressional district.)

Our third recommendation is a proportional plan, awarding electoral votes in each state in proportion to the percentage of the popular vote gained by each ticket.

In conclusion, the EC is undemocratic. It permits the election of a candidate who does not win the most votes and its winner-takes-all approach in 48 states cancels the votes of the losing candidates in each state. The EC increases the potential for rule by the minority due to the disproportionate distribution of prospective votes. Inevitably, tyranny of the minority is the result. Democracy’s fragile hold on equal protection mechanisms is put at risk during every election cycle. This forced drama does not strengthen the values at the core of our system. Instead, it opens the door for the devious and unscrupulous, as the 2020 election showed. We must take steps to intervene to increase the sense of fairness that a democracy demands to succeed.

Author: Robert F. Fagin is a retired federal Senior Executive Service (SES). He received his BA from the  University of Virginia and his MPA from American University. His service included U.S. government Senior Executive Service (SES), Administrative Management; vice president, finance and administration, University of North Florida (UNF); treasurer, UNF Foundation; executive director, chief financial officer for Palm Beach County, Florida. He can be reached at [email protected].

Author: Richard E. delaMenardiere received his BS from the University of South Florida and his MS in management systems from American University. His service included Lieutenant Colonel in the U.S. Air Force, Systems Acquisition and U.S. government Senior Executive Service (SES) manager of procurement, grants and facilities. He can be reached at [email protected].

Author: Robert E. Doyle, Jr., received his BA from College of the Holy Cross and his MPA from Southern Methodist University. His service included U.S. government Senior Executive Service (SES) manager, chief operating officer, director of finance and management and senior advisor of major federal agencies. He can be reached at [email protected].

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