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A New Fix for the Electoral
College
By Alan B.
Morrison
January 3, 2003
The 2000 presidential
election focused the public’s attention on a number of serious flaws
in our election system that have gone uncorrected for a long time.
Congress has now passed legislation to deal with outdated voting
machines and other practices that prevented tens of thousands of
voters from having their ballots counted, but there remain three
major problems that should be fixed. First, every state except
Maine and Nebraska employs the winner-take-all method of allocating
electoral votes, which produced the situation in Florida where a few
hundred votes out of more than 6 million determined who won
Florida’s 25 electoral votes and became president. Second, in almost
every presidential election since 1980, there have been third party
candidates who received sufficient popular votes that, had they gone
exclusively or even largely to the eventual loser, could have
changed the outcome. The 2000 election made the role of third party
candidates more visible, but there is no reason to believe that
third parties will stop having a substantial impact on presidential
elections. And third, the 2000 election could have wound up in the
House of Representatives, where each state would have had a single
vote, even though California had 52 House members and 8 states had
only one. However one defines democracy, there is simply no defense
in the 21st century to picking a president on a “one-state,
one-vote” basis. It would be convenient if Congress could pass a
law solving these problems, but the Constitution makes that
impossible. The first two issues are entirely within the control of
the states, and unless all or a substantial majority reached a
consensus on a solution, we would have confusion that would be as
bad as the current situation. But even the states can’t fix the
problem when no one wins a majority of the electoral vote because
the Constitution mandates the current outcome. Since only a
constitutional amendment can deal with all three, we should think
big and decide what we want. The most obvious answer is to do what
every state does: elect the president by popular vote. If we were
starting from scratch, the idea would have great appeal, but we are
not. The Electoral College, despite its flaws, does reflect notions
of federalism that are the basis of our system of government and
would be hard to overturn. Because the Electoral College adds two
votes for each senator to the one for each member of the House, the
small states have more power than they would have under a strict
population-based system. Since 24 states in the new Congress will
have five or fewer House members, there is no chance that the
requisite three-fourths of the states (38) would agree to abolish
the Electoral College. Historian Arthur Schlesinger, writing in The
American Prospect [March 25, 2002, pp. 23-27] proposed a system
under which the winner of each congressional district would receive
one electoral vote, and the overall state winner would get two votes
(corresponding to the number of senators). This is the choice that
Maine and Nebraska have made, and the fact that no one else has
joined them suggests it does not have strong support. Moreover, to
make such a system work, it would have to be adopted nationally, and
only a constitutional amendment could do that. If we are going that
far, this kind of minimalist change seems hardly worth the effort.
The winner-take-all system should be changed not just because of
what happened in Florida, but because it produces what is
effectively a massive disenfranchisement of millions of voters who
cast their ballot for a candidate who did not finish first in their
state. For example, the more than 4.4 million Californians who voted
for George W. Bush, constituting nearly 42 percent of the state’s
electorate, might as well have stayed home since they produced not a
single electoral vote for their candidate. The same can be said for
the 8.3 million Bush supporters in Illinois, Michigan, New York, and
Pennsylvania and the 4.5 million people who voted for Al Gore in
Ohio and Texas. And in Florida, regardless of which candidate won,
there would have been more than 2.9 million voters whose ballots
might just as well have not been cast or counted. In these eight
states alone, the winner-take-all effect negated 20 million out of a
total of about 109 million votes cast nationwide. And, it seems
highly likely that a significant, if undeterminable, number of
voters in states where the race was not close simply did not go to
the polls since their vote would have no impact. Second, the
winner-take-all rule forces candidates to focus on the undecided
voter in the middle, and to do that, candidates often fudge their
positions so as not to offend anyone and thereby lose their support.
The blurring of distinctions among candidates, not to mention their
efforts to hide or at least soften their true views until after the
election, is bad for democracy. The more the candidates sound alike,
the less inclined the mildly apathetic voters -- or those looking to
shake up the status quo -- will be to go to the polls. Finally, and
most dramatically, the current system results in situations like
Florida where a swing of fewer than 2,000 votes out of 6 million
cast determined how all of Florida’s 25 electoral votes were
awarded. Given human errors and the inevitable failures of even the
most sophisticated equipment, having an election turn on so few
votes should be avoided whenever possible. The way to eliminate the
possibility that a Florida problem will repeat itself, and to
reinvigorate our presidential elections, is to institute a
proportionate allocation system under which each candidate would
receive the same percentage of a state’s electoral votes that he or
she received in popular votes. Assuming a race between just Gore and
Bush, Bush would have received 13 of Florida’s electoral votes, and
Gore 12, meaning that any post-election fight would only be over one
electoral vote, and would virtually eliminate the chance that any
court, let alone the Supreme Court, would be in a position to decide
the fate of the presidential election. Changing from a
winner-take-all system would also bring about significant changes in
the way that candidates allocate their appearances and their
expenditures, particularly for media. Once a state is seen as safe
for one side or the other, no candidate spends any significant time
or money there. But with proportionate voting, there is an incentive
to campaign everywhere because, even in the states with the fewest
electoral votes, it is relatively easy to pick up at least one of
them. It is impossible to predict precisely how presidential races
would change, but it is certain that they would not be the same,
which hopefully would mean more interesting races and greater
turnout. What would have happened if a system of allocating
electoral votes on a proportionate basis had been in place in 2000?
There can be no definitive answer because it requires an assumption
that both candidates would have conducted precisely the same
campaigns as they actually did, and that would almost certainly not
be the case. When the numbers were run using the actual votes cast,
another problem surfaced that initially appeared to be a
mathematical anomaly, but turned out to have far deeper
implications. Because there were more than two candidates who
received measurable amounts of votes – Bush and Gore each received
more than 48 percent while Ralph Nader had about 2.69 percent and
Patrick Buchanan had 0.44 percent -- under a proportionate
allocation system, neither Bush nor Gore would have received the
required 270-vote majority: Bush would have had 265 votes, Gore 263,
and Nader 10. This raises the much more fundamental issue of what to
do about third parties, but not just under a system of proportionate
allocation of electoral votes, but under winner-take-all as well.
One choice would be to disregard the popular vote given to third
parties and base the allocations solely on the votes of the two
major party candidates, as, in effect, is done in a disguised manner
under the current winner-take-all system. But that would not have
resolved the problem in 2000 because the result would have been a
flat tie at 269 electoral votes each, assuming no challenges or
recounts. Even if disregarding the 2.7 percent of the nationwide
votes cast for Nader might have produced an actual winner in 2000,
that approach would be a much more difficult sell in years like 1992
when Ross Perot had 19 percent of the popular vote and Bill Clinton
and George Bush had 43 percent and 38 percent, respectively. Under
the existing rules, Clinton garnered 370 electoral votes to Bush’s
168, but under a proportionate voting system, the totals would have
been Clinton 236, Bush 197, and Perot 105-- again no winner. Since
Perot actually finished second in Maine and Utah, and there were six
other states where he won more than 25 percent of the vote,
eliminating the votes cast for him would not be a legitimate option
under a proportionate allocation system. There are several ways to
resolve a presidential election in which there is a significant
level of support for a third party, but the fairest one, which would
be most reflective of the will of the voters, is called “preference”
or “instant run-off” voting and has recently been adopted by the
City of San Francisco for choosing its mayor, council members, and
other high-ranking officers. Each voter marks his or her first
choice and then indicates a second or backup choice – but only if
the voter chooses to do so -- which is counted only if no candidate
secures an absolute majority of the 538 electoral votes (using
proportionate voting). Had this two-prong system been in use in
2000, Nader and Buchanan voters who made a backup selection would
have added their votes to those whose first choice was Bush or Gore
to determine the eventual winner. In this way, voters would have
been able to express their true preferences without fear that their
vote might help elect the person they most strongly opposed. It
might also have meant that, at least on the second round, the
thousands of Floridians who mistakenly cast two votes for president
might have had their votes counted, as long as at least one of their
selections was Gore or Bush. There is another important by-product
of this inquiry: it requires us to think more deeply about the role
of third parties in presidential and perhaps other elections. The
instinctive reaction of the leaders of the two major parties (and
probably many of their members) will be to oppose anything that
gives third parties any degree of legitimacy. For them,
proportionate voting and instant runoffs will only encourage third
parties and thereby drain the strength and some of the money from
their own party. The real basis of that opposition is the
assumption is that if the present system is retained, third parties
will never again appear. But it is the current system that has
spawned them, even with all the barriers that the major parties have
placed in their way. Moreover, third parties are not a recent
arrival, but have been a significant factor in presidential
elections for well over a century, including the 1912 election when
Theodore Roosevelt won as a third party candidate. It is not well
known, but the Constitution neither enshrines the two-party system
nor implies that presidential elections must be between only two
candidates. Thus, both the original version of Article II, Section
1, clause three, and the changes to it made by the Twelfth Amendment
adopted in 1804, specifically contemplated that more than two people
will run for president. After requiring an absolute majority of the
electoral vote to elect the president, the Constitution directs the
House of Representatives to decide the election “from the persons
having the highest numbers [of electoral votes] not exceeding three
[originally five] on the list of those voted for as President.”
Although the Constitution may not mandate greater accommodations for
third parties in presidential races, it surely refutes the commonly
held notion that the two-party system is an essential part of our
democracy and that candidates who run against the major party
nominees are somehow “un-American.” But even if the major parties
could continue the pretense that third parties don’t exist and
therefore should be disregarded, they cannot hide from the fact that
third parties do influence elections. Ralph Nader has been accused
of being a spoiler who had no chance of winning, but took enough
votes from Al Gore in Florida (and several other states) to give the
election to George Bush. It is also true, though not widely known,
that if Gore had won Florida, the same “spoiler” charge could have
been leveled at Patrick Buchanan, even though he gained only 0.44
percent of the popular vote. If all of Buchanan’s supporters had
gone for Bush in Iowa (7 electoral votes), New Mexico (5), Oregon
(7), and Wisconsin (11), that would have added 29 electoral votes to
Bush’s column, and Bush would have become president even if Gore had
won Florida. Indeed, the spoiler effect is not limited to
presidential elections. As John J. Miller of the National Review
recently observed [New York Times, Nov 16, 2002, A27], the
Libertarian Party has quite likely cost the Republican Party a seat
in the Senate in each of the last three elections – this time in
South Dakota and previously in Nevada and Washington. Whatever
truth there may to the claim that either Nader or Buchanan was a
spoiler in the 2000 election, in some situations, there can be no
doubt that a third party candidate, who cannot win, may draw enough
votes from one of the other candidates to change the result, and
that is true under the current regime or one based on proportionate
allocation. But if that occurs, the blame should not be placed on
the third party, but on the system that creates the potential for a
spoiler effect. The proper question is not what we do about third
parties, but what we do about the system so that third parties that
will inevitably exist will play a constructive not a spoiler role.
And the way to deal with that problem is not to let the initial vote
be the final vote if no candidate obtains a majority, but to use
instant runoff voting so that there will no longer be speculation
about which way votes for a third party candidate would have gone.
Finally, it is time to change the way we decide presidential
elections if no one garners an absolute majority of the electoral
votes. Under the current system, if there is no winner, the election
goes to the newly elected House of Representatives with each state
having a single vote, regardless of the size of its House
delegation. This means that it is at least theoretically possible
that the 26 states with eight or fewer electoral votes could elect
the president, even though they have only 28 percent of the
electoral votes and their residents cast less than 18 percent of the
popular vote in 2000. If there were instant run-offs, there would
probably be no need for a backup system, but until such a change is
put in place, we should change the deadlock system to eliminate the
disproportionate role for small states, for example, by giving each
member of the House, instead of each State, one vote. Our system for electing a
president may not be completely broken, but it is in serious need of
repair. The winner-take-all outcome, the failure to account for the
inevitable third parties, and a thoroughly outmoded way of finally
resolving disputed elections should be changed. Let the debate
begin.
(Alan Morrison is currently the Irvine Visiting
Fellow at Stanford Law School. In late January, he will return to
the Public Citizen Litigation Group, which he founded with Ralph
Nader in 1972.)
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