Commentary: A modest tweak to reform the Electoral College

APTOPIX Hillary Clinton
Hillary Clinton became the fifth presidential candidate to win the popular vote but lose the election.

By Colin Hanna

and Cleta Mitchell

For the fifth time in our national history, a candidate for president won the necessary number of votes from the Electoral College while losing the popular vote.

This has given rise to a new round of calls to abolish the Electoral College, with the presidency going to whichever candidate amasses the greatest raw vote total. The counterargument most often raised is simply that our system doesn't work that way.

We offer a better argument against the popular vote, and then propose a reform that we believe would not only preserve the Framers' original intent for the Electoral College but also improve the presidential election process in the media-rich 21st century.

The Framers of our Constitution understood the threat of tyranny better than we do today. The English system of government was a monarchy, with all power derived from the sovereign monarch. Power was concentrated, and concentration of power led to abuse of power. The Framers devised a system in which power was diffused among the several states, rather than concentrated in a single central government. The central government was limited to certain enumerated powers, rather than possessing all power. That's Federalism.

Even within the very limited federal government, power was further diffused into three equal branches of government. The principle of diffusing power was carried out in the presidential election process through the creation of an Electoral College in which each state had a set of votes based upon population, with each state retaining the right to determine for itself how those votes were to be allocated following an election. Thus, diffusing power was a structural check on tyranny, in this case not the tyranny of the English monarch, but rather the tyranny of which both James Madison and Alexander Hamilton wrote, the tyranny of the majority.

Abandoning the Electoral College in favor of a national raw vote winner would abandon this check against tyranny. The benefits of federalism should be preserved, not demolished.

We have become so accustomed to a two-party system that we easily ignore another substantial flaw in a popular vote system. If four roughly equal-size parties were to emerge instead of the current two large parties, then a president could be elected with a little more than one quarter of the total vote. Electing a president opposed by nearly three-quarters of those voting would be the opposite of the fairness the proponents of the popular vote say they want.

A third flaw in a popular vote is cultural. It would lead to the selection of a president by the large cities whose media dominance would run roughshod over more rural and agricultural areas to the point that citizens in those areas could easily conclude that they had been left out of the process altogether. This would soon lead to insoluble cultural divisions that would make the recent campaign for president look like an exercise in national unity by comparison.

The current system has its own flaws, however, one of the worst of which is the disproportionate influence of so-called swing states. Eleven states were determined to be swing states this year, relegating 39 states to near insignificance. California, New York, Massachusetts, and Texas were largely ignored because they were presumed to be so solidly in either the Trump or Clinton camp as to not be worth either candidate's time to campaign in them. How is it in the interest of fairness and national unity to ignore our largest states?

The reform that we propose would retain the Electoral College, but do away with its winner-take-all-by-state awarding of electoral votes. We propose instead nationalizing the system used in Nebraska and Maine, where one electoral vote is awarded to the winner of each congressional district, with two additional electoral votes awarded to the overall winner of that state. Every congressional district would thus have the same weight.

Winning a district in Iowa or Wyoming would be just as valuable as winning a district in Philadelphia. Democrats in Austin, Dallas, and Houston could produce district majorities that would give them electoral votes, just as Republicans would probably win electoral votes in certain parts of California, Massachusetts, and Illinois. This system would preserve the Framers' checks against the tyranny of the majority in large urban areas, while also nationalizing the national election. Candidates would then campaign in states they never have to visit now.

Would this system have made a difference in the last several presidential elections? In 2000, George W. Bush would still have won, but with 288 electoral votes vs. 250 for Al Gore, compared with the 271-266 count by which he was elected. The past three presidential elections would have sorted out this way:

Instead of winning 286 to 251 in 2004, Bush would have won more decisively, beating John Kerry 321-217. In 2008, Barack Obama would've won 301-237 (the real count that year was 365-173). The only race that would have had a different result under our system was 2012, with Mitt Romney winning 276-262, instead of losing to Obama 332-206. In retrospect, perhaps that result would have prevented the pent-up anger at the unfairness of the system that the American people expressed on Nov. 8.

The Electoral College is a brilliant gift from our Founding Fathers that can be made more fair by tweaking the allocation, rather than abolishing it altogether. A truly national campaign would result, one where every state and all votes and voters matter.

That seems like fairness to us.

Colin Hanna is president of Let Freedom Ring and a former Chester County commissioner. colin@lfrusa.com

Cleta Mitchell is an elections and political law partner in the Washington office of Foley & Lardner, LLP. cmitchell@foley.com

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