February 13, 2008
Getting Rid of the Electoral College by Keeping It
By Alexander Belenky
A new approach to making the nationwide popular vote a decisive factor in deciding the outcomes of U.S. presidential elections. The approach allows all the states to gain more attention in presidential campaigns while preserving all they have under the Electoral College. It encourages the nation to elect a President with a mandate from both the nation and the individual states as equal members of the Union.
As the 2008 election nears, many Americans express concerns about the rules of presidential elections.
The Founding Fathers devised the Electoral College as an "intermediate, independent Congress" to be appointed every four years to choose a President.
Yet, this election mechanism has transformed into an outlandish mathematical scheme, weirdly aggregating American votes, not cast for presidential candidates but determining which of these candidates wins.
Citizens from each state and DC vote only for competing slates of presidential electors. Though each elector from the winning slate is supposed to favor the presidential candidate heading the slate, it's not a must, attesting to the deliberative nature of the Electoral College's initial design.
This makes the election outcome dangerously dependent on the voting behavior of electors and leaves the country with two puzzling alternatives.
First, if, constitutionally, electors can favor whomever they want, then after 220 years, 538 state and DC electors still can substitute their own will for that of almost 200 million American voters.
Second, if all the electors from each slate had to follow the will of the state, then the states (and DC) rather than a college of electors would elect a President, and the states would have different numbers of electoral votes, reflecting the state’s population size.
But the Constitution allows the states to elect a President only in the House of Representatives, only according to the “one state, one vote” principle—guaranteeing the equal suffrage of states in electing a President in Congress (and in amending the Constitution)—and only if the Electoral College fails to elect a President.
The "winner-take-all" rule of awarding electoral votes makes many states "safe" for either major party candidate. This rule contributes to narrowing election campaigns to a "battleground minority" of the states and to keeping almost 45 percent of the electorate not interested in voting in presidential elections. A popular vote loser can win the Presidency by winning in a minority of the states, and a third-party candidate can affect the outcome without winning a single electoral vote.
Under the existing election rules, voting even for state electors isn’t constitutionally guaranteed to Americans, remaining, in fact, a privilege at any time revocable by the state legislature, as the Supreme Court reaffirmed in 2000.
Yet, the Electoral College was no more than part of a compromise, keeping states of free settlers together as a nation. The sense and the circumstances of the compromise suggest that the Founding Fathers might have expected new generations of Americans to propose a better election system or at least a better compromise in electing a President.
Today, appreciating the federal structure of the country, many voters consider themselves Americans first and citizens of their respective states second. This may signal that presidential election rules should better reflect this feeling than they currently do.
Under any direct popular election, small states—with five electoral votes and fewer—and currently "battleground" medium-size states lose their Electoral College benefits while gaining nothing in exchange. These states are unlikely to support either proposal.
But these states may support introducing the nationwide popular vote in presidential elections in a manner allowing the states to gain more attention in presidential campaigns while preserving all they have under the Electoral College.
Let a recipient of a majority of the nationwide popular vote and popular vote majorities in at least 26 states (or in at least 25 states and DC) be the next President—even if another presidential candidate wins the Electoral College—should more than 50 percent of all eligible voters vote. Only if no such recipient exists, should the winner of at least 270 electoral votes—automatically awarded by the states and DC in a manner in which they award electoral votes—become the next President. If there is no such electoral vote recipient either, let the House of Representatives choose a President, as the Twelfth Amendment directs.
Any state may decide that winning a plurality of state votes is sufficient to carry the state, and each state should retain the right to appoint electors under a too small state voter turnout.
To clarify the idea underlying the proposed election rules, let’s call a “President of the people” a presidential candidate who wins a majority of the nationwide popular vote (provided that more than 50 percent of all eligible voters voted in the election). Let’s call a “President of the states” a presidential candidate who is the choice of a majority of voting voters in each of at least 26 states or 25 states and DC (provided that more than 50 percent of all eligible state (DC) voters voted in each of such 26 states or in each of such 25 states and DC).
If a presidential candidate is both a “President of the people” and a “President of the states,” this candidate becomes the next President, even if another candidate wins the Electoral College.
If there is no candidate who is both a “President of the people” and a “President of the states,” or if less than 50 percent of all eligible voters vote, then either the Electoral College winner becomes the next President, or the House of Representatives elects a President.
Unlike other rules introducing the nationwide popular vote in presidential elections, the proposed rules build on the existing election system rather than call for abolishing it. These rules encourage the nation to elect a President with a mandate from both the nation and the individual states as equal members of the Union, which may be a better choice for America than just the Electoral College winner.
Under these rules, Americans vote directly for President, and their votes count both statewide and nationwide. The rules follow the spirit of the "one state, one vote" federalist principle in electing a President by states and keep the Electoral College mechanism as a back-up.
The proposed rules encourage both major party candidates to compete in large states to win a nationwide popular majority and in small and medium-size states to seek to win in at least 26 states, especially in currently "battlegrounds," since the Electoral College still may finally decide the election outcome.
These rules motivate voters to vote in presidential elections if they wish to elect a President both as a nation and a federation directly, since the existing system takes over if less than 50 percent of all eligible voters vote.
Since the Electoral College remains a back-up, a loser of the nationwide popular vote majority still may win the Presidency even if the winner of such a majority exists in the election. But the likelihood of this outcome is smaller than under the existing election system.
Introducing these rules by a constitutional amendment may receive support from enough states, since nobody loses. Moreover, the amendment will give Americans the constitutionally guaranteed right to vote for President, making the state popular will superior to the state legislatures' right to appoint state electors in a manner they want.
Such an amendment would also provide constitutional grounds for automatically awarding electoral votes by the states (and DC) in electing a President by states with different numbers of electoral votes, reflecting the state’s population size.
A shorter version of this article, entitled “Belenky: Counting the Votes for President,” was published by Milford Daily News, MA on February 10, 2008 click here
Alexander S. Belenky is the author of the books "Extreme
Outcomes of US Presidential Elections" (2003), "Winning the US Presidency: Rules
of the Game and Playing by the Rules" (2004), and "How America Chooses Its
Presidents" (2007). He is Guest Editor of the forthcoming special issue of
Mathematical and Computer Modelling entitled "Mathematical Modeling of Voting
Systems and Elections: Theory and Applications."
A visiting scholar at the MIT Center for Engineering Systems Fundamentals,
Belenky holds a Ph.D. in systems analysis and mathematics and D.Sc. in
applications of mathematical methods. His authored opinion pieces on the
Electoral College have appeared in the Baltimore Sun, the Michigan Law Review,
the New York Press, the Metro Daily News, and his co-authored opinion pieces
about voting systems have appeared in the Boston Globe, the Boston Herald, the
Christian Science Monitor, and the New York Times. He was an invited guest on
radio and TV talk shows throughout the country in the course of the 2004