A Proposal for Improved Electoral Representation

A case for the 28th amendment

The Problem

Today we are witnessing the decay of one our most treasured rights: the vote. To say that we have free and fair elections in America would be a half-truth — free, but far from fair. During presidential elections, we are inundated with headlines describing the irrelevance of “safe states” in political campaigns, the weakening of voters’ importance, calls for the abolishment of the Electoral College, accelerating hyper-partisanship, and meager reassurances that “every vote counts.” Unless you happen to reside in a competitive swing state, your vote has become irrelevant.[i] More importantly, candidates will almost certainly rely on your irrelevancy and avoid campaigning for your particular voice, opting instead to gain the approval of a small cohort of competitive voters.

The basis for the imbalance lies in the inherent structure of the Electoral College. Scholars have pointed out the above problems for decades and pollsters have published the effects. Even so, no viable alternative has surfaced to restore the power of the vote. To be fair, an alternative election process would require a Constitutional amendment, and frankly, the status quo is easy. However, a disturbing flaw within the Electoral College has recently been exposed that has the potential to upend our elections and discredit the presidential office. In their 2011 book The Dictator’s Handbook, Alastair Smith and Bruce Bueno de Mesquita first indicated how a candidate can leverage the inherent structure of the Electoral College to their extreme advantage. Later publications demonstrated precisely how an individual may be elected to the presidency with support from less than 10% of the population. Were this flaw to be fully leveraged, the very nature of our republic would crumble.

Now more than at any other time in our nation’s history, we are in need of an election system that upholds the relevancy of each individual voice. We cannot afford to sit idle while the essence of our democracy dissipates into history. This essay proposes a solution. By building upon the Electoral College and drawing inspiration from alternative election methods, we may construct a new system that restores the power of the vote. The key lies in focusing on a single, novel idea: allocating electoral votes to the national popular vote winner, thereby giving value and importance to the national population at large. In doing so, we may create a democratic republic that better captures the will of the American people.

The Background

The 1787 Constitutional Convention brought together some of young America’s brightest minds for the singular goal of drafting the Constitution. All topics of government were to be addressed, from taxation to representation, in order to transform 13 colonies into the Unites States of America. Through raucous discourse and heated debate, the Constitution gradually took shape. Early drafts sparked fervent discussion and exposed rifts within the budding democracy, but no topic brought about more deliberation than the process of electing the President.

The election process was paramount for the development of the nation. Alone it had the power to determine the strength and legacy of the American Experiment, and for a time no one agreed on how to structure it. Disputes over direct representation, conflicts between northerners and southerners, and disagreements over democratic values threatened the success of the nation. Finally, James Wilson put forth the proposal that would become the Electoral College. Architected by James Madison, the Electoral College attempted to resolve three issues that arose from various proposals:

Separation of Powers: The early Virginia Plan­ outlined the first formal process of presidential selection whereby the assembled body of Congress would select the president. The Founders determined that the process allocated an excessive degree of power to the Legislative branch over the Executive branch and eventually discarded the proposal. The alternative Electoral College provided a means to stifle overreaching congressional power but did not initially address critical issues of population and direct representation in its earliest form. However, subsequent iterations and later amendments continued to incorporate the important theme of checks and balances. Discrepancies in State Populations: By providing for electors based on a state’s representation in both houses of Congress, small states would not have their influence entirely overridden by large, populous states. Each state (and later, the District of Columbia) was to have a minimum of three electors — two electors for the state-wide senatorial offices and one or more electors for the population-based, district-wide Representative office. Under this allocation, northern colonies drew a significant majority of electoral college votes and met heavy criticism from the southern colonies. Eventually, the parties came to a fateful compromise on the basis of slave populations. Party or Foreign Influence: Alexander Hamilton expressed concerns over the potential for foreign governments or political parties to exercise undue influence over a permanent nominating body. Hamilton wrote that in the Electoral College, a body of electors were to be chosen only at the time of election, only for the purpose of presidential selection, and only by “the great body of the people,” thus preventing external powers from directly dictating or purchasing the outcome of the election.¹ Furthermore, no elector may be the holder of a federal office in order to prevent control by party or president and to maintain separation of powers. With the transient nature of the electors, Hamilton felt confident that the presidential selection could be made safely in the hands of competent, independent men.

Although intended to protect against foreign interests, Hamilton and Madison argued fervently for the system of electors in order to establish the United States as a republic. A republic, they contended, provided a means for intelligent citizens to act decisively where the moral conscience of the nation failed. When, in an apparent desire for a more democratic style of governance, states quickly began a tradition of allocating 100% of their electoral votes to the state’s popular vote winner, Hamilton and Madison were outraged and derided the practice. They feared that without a functioning republic, America would be prone to demagoguery. Despite Hamilton’s and Madison’s misgivings, states continued the tradition until the republic grew a facade of a direct democracy. Madison acknowledged that although the Electoral College process had imperfections, it exhibited the least controversy at the time.

The Arguments Against

Despite the benefits laid out by the Founding Fathers in support of the Electoral College, significant flaws have become clear in the 232 years since its inception. While some issues were evident from the beginning, others have become more apparent and relevant in recent decades.

As the influence of political parties and organizations has strengthened and states have carved out political identities, the Electoral College has encouraged an intense focus on swing states and an exclusion of entrenched states during the election process. Such behavior makes sense from a campaign strategy perspective, i.e. states with a large number of electoral college votes with no clear political leaning are expected to receive disproportionate amounts of candidates’ time in order to garner the most influential votes. In the 2016 presidential election, both Hillary Clinton and Donald Trump spent significantly more time in a handful of the largest battleground states. During the 2004 presidential election cycle, the 11 states with the closest voting margins (pdf link), comprising 27% of the nation’s population, accounted for 92% of candidate showings and 96% of TV ad expenditures. In contrast, states with majority support for one party are viewed as a waste of limited campaign funds.

Additionally, as the one of the most contentious and hotly debated aspects, the Electoral College does not prescribe any weight to the nation’s popular vote. Critics argue that by failing to acknowledge the national popular vote we fail to build a true democracy and retain a faulty republic; voices are heard partially and citizens are not equal.

To see this clearly, one may look to the extreme cases of how votes are apportioned in California and Wyoming. In 2016, the estimated populations of California and Wyoming were 39.210 million and 584,290, respectively.[ii] In the 2016 presidential election, California was allocated 55 electoral votes and Wyoming the minimum three, rounding out to 712,909 people per electoral vote in California but just 194,763 people per vote in Wyoming.

In other words, one person’s vote in Wyoming has nearly four times the strength as a vote cast in California. The unsettling nature of vote-strength imbalance has noticeable manifestations. In the history of the United States, there have been four definitive cases where the elected presidential candidate did not win the nation’s popular vote, yet clinched victory through a majority of Electoral College votes. Two of these instances have occurred within the last five election cycles — in 2000 and 2016. In the latter instance, the victor lost the popular vote by nearly 3 million votes. Furthermore, a presidential candidate may already secure the highest office by winning a plurality in merely the 11 most populous states. Only the dispersive nature of political preferences has prevented such an imbalanced election, but no intentional mechanism prevents a cunning candidate from performing such a feat.

Finally, the framers of the Constitution designed the Electoral College with features that are now antiquated and unethical. The Three-Fifths Compromise represented the most glaring application of these features by providing slave-owning states the ability to increase their proportional representation of electors without the need to increase their voting population. The Electoral College does not and did not explicitly support slavery, but rather had the reprehensible effect of enabling its persistence.

By leveraging the benefits of a large population with restricted voter participation, a modern flavor of the original injuriousness proliferated in the aftermath of abolition. Today, these restrictions take the form of strict voter ID laws and flagrant gerrymandering that at worst silence and at best diminish the influence of marginalized communities. North Carolina and Georgia, among others, continue to see multiple State and Federal court cases regarding racial gerrymandering practices of the incumbent party. These practices typically suppress minority voter influence in one of two ways — by grouping minority voters into a single bloc, thereby diminishing their voice to a single electoral vote, or by dividing minority voters into multiple districts so as to effectively silence their opinions.² Gerrymandering of any form, racial, partisan or otherwise, can only exist in a district-based electoral system such as the Electoral College. Without the option to group voters into representative blocs, the ability to skew elections on the basis of district representation disintegrates.

Hamilton argued in Federalist No. 68 that the Electoral College created a necessary buffer against corrupt activities among the states; however, today that buffer leads to a failure to acknowledge the very corruption it intended to protect against. Engaging in legal disenfranchisement can effectively reduce the voting population without decreasing electoral votes, thus providing a means for wrongful concentration of power to go largely unaddressed. While the Electoral College itself is not discriminatory or racist, nor is this an argument for its abolishment on the basis of injustice, its ability to provide cover for disenfranchisement does expose a severe flaw in need of remediation.

The Popular Vote

The national popular vote argument outlined above has driven some of the most fervent discussions of reforming the Electoral College. Calls for complete abolishment have arisen from state chambers and sitting politicians across the nation. Regrettably, many of these arousals appear to have a party-oriented tilt stemming from disgruntled voters’ sense of stolen victory. Evidence of this may be found in the sharp increase of Google searches for “Electoral College” and “popular vote” during election years:

Most obvious, the popular vote method does not preserve the influence of states as intended by the framers of the Constitution. While the popular vote argument calling for equal and equitable voting certainly remains valid, even desired, it ignores the importance of state-level views. As our nation has developed and constructed its identity, state boundaries have given rise to localized wants and needs. Contained within state borders lie unique cultural identities, economies, and communities that depend on each other for growth — alone the constituent microcosms of America, together the bond of our country. The West Virginian yearns for the preservation of wild rivers and serene hills; the Rhode Islander cannot afford to lose the blissful, crisp New England ocean; the Hawaiian aches for the loss of sacred ground that bred irreplaceable identities over hundreds of years; the Montanan finds a beauty and solace in breathtaking mountains that the North Dakotan may only find in endlessly expansive skies, yet all depend upon the inviolate nature of democracy.

The Electoral College does not achieve counting a Montanan’s vote differently than a New Yorker’s vote, or a West Virginian’s differently than a Floridian’s, but rather achieves a counting of all states’ votes. Under the present structure, every state, regardless of cultural or economic needs, maintains representation. We may realize this concretely by considering the structure of the Senate. Regardless of population, all states enjoy equal footing, ensuring no state or state-level need goes wholly without ear. The District of Columbia famously taunts “No Taxation without Representation” on every District license plate because residents do not enjoy congressional representation. State level voices matter; to silence these voices in our nation’s electoral process would be a scourge on democracy.

In this dilemma, proponents of the popular vote ought to feel a sense of distress over the Electoral College’s ability to truly give weight to the smaller states. We have, after all, already seen the controversy of the Electoral College. The counter argument generally follows that because the national popular vote method forces broader vote earning, it may lead to candidates focusing on the needs of small states even more than they presently do, citing the fact that America’s 50 largest cities account for only 15.3% of the total population.[iii] However, Figure 1 shows how a popular vote candidate could easily target a few counties in order to reach more than 50% of the population. By focusing on the most populous areas, presidential candidates could ignore enormous swaths of rural and suburban voters and avoid giving attention to some states entirely, yet still claim the presidency. If adopted, the increasing number of people migrating to urban centers would exacerbate this flaw of the popular vote until only the largest population centers decided the presidency.

A Call for Compromise

Most Americans over the past 60 years have supported an abolishment of the Electoral College in favor of a popular vote system. Large fluctuations fall in tandem with election cycles, but the majority opinion persists. The Electoral College lags behind our progressing culture, concentrates messaging to a few battleground states, suppresses voter participation, and carries the ugly scar of racist beginnings. Electoral systems should first and foremost capture the opinion of the people at a certain moment in time. Not a few people, not a select group of people, but the people. By this metric, both the Electoral College and the national popular vote fall short.

While reasons against the popular vote method have been outlined above, the Electoral College possesses one fault so severe that it must not continue without reform. In their analysis of how democratic democracies are, Alastair Smith and Bruce Bueno de Mesquita claim that a candidate can become President of United States by winning only a fifth of the voting population.[iv] In 2016, indirectly referencing Smith and Mesquita’s original claim, NPR published an article detailing how a candidate could pull off such a feat. The article presented the following data:

Table 1: Electoral Majority with the Least Populous States

The tactic here plays off of the unequal voting power favoring smaller states as described in The Arguments Against. Carrying that trend forward, amassing electoral votes in a stepwise fashion by winning just over half of the votes in each state, one could feasibly obtain one of the most powerful offices in the world with only 23.1% of the US’s electing body, a mere 9.51% of the US population. Such a process blatantly undermines fundamental definitions of democracy by hijacking free and fair elections. In alarmingly clear numbers, the data show just how fantastically the Electoral College can skew the outcome of the presidency.³

Although such an election remains unlikely, this disturbing attribute of the Electoral College has reared its ugly head before in American history. In 1860, Abraham Lincoln won the election with just 39.8% of the national popular vote, and in 1824 John Quincy Adams prevailed with only 30.8%.[v] Of course the political environment of the United States differed greatly 160 years ago, but in 1992 Bill Clinton secured the Oval Office with just 43% of the popular vote. Were a candidate to pursue a carefully crafted campaign exploiting weaknesses of the Electoral College, one could manipulate America’s election system to their ignoble advantage.

When pundits or politicians speak for or against our election process, the motives tend to lie in preserving only a piece of the people’s voice or in fostering self-interest. Sadly, these motives also tend to have ulterior political influences, designed to tease out the voices that benefit a particular party. These outcries point to a deeper issue. One way or another, someone’s voice will not be adequately elevated. But democracy does not exist for a singular voice. Democracy was not conceived of for the benefit of a few. We do not believe in democracy because it shutters our opinions; we believe in democracy because we are democracy. We are the People — governors of ourselves for ourselves. Unfortunately, reality does not match desire. Neither the Electoral College nor the popular vote properly adhere to the voice of the People. Given that the principles of democracy depend upon the integrity of the electoral process, our present dilemma demands a solution.

A Proposal

The ultimate downfall of both election systems lies in their vulnerability to malicious manipulation. The politician’s manipulation does not emerge directly from either electoral process, but rather exists due to a desire and ability to exploit a flawed system. A solution must then revoke the possibility of exploit and force a more balanced representation of all people. To this end, a more balanced system must meet several criteria in order to be a feasible solution. The system must be non-partisan, and require that candidates win more votes overall without skewing towards any party. The system must be sensible, and avoid monumentally altering outcomes of previous elections were it to be applied retrospectively. Lastly, the system must be neutral, and draw support from both state-level and federalist advocates. The proposal presented here attempts to reconcile these multiple facets through one pivotal change: the allocation of 51 electoral votes to the plurality winner of the popular vote.

To address the need to require more votes in order to secure a victory, let us again turn to the data presented in Table 1. Rather than 270 electoral college votes, a candidate must win 295 votes under the proposed system in order to obtain a majority.⁴ Below, Washington state has been added and the data continues in order of increasing state population until surpassing the 295 threshold⁵:

Table 2: Electoral Votes Needed to Win Under a Mixed System

For a candidate to cross the new 295 electoral vote threshold, one would need to eke out a win in Washington state and in North Carolina. Doing so gives the candidate a slight majority of 297 electoral votes and an improved minimum vote percentage of 26.0%. Using 2012 data, this amounts to an increase of 7,630,888 votes.

Regarding a sensible system, consider again that only four elections of 45 have been won by the popular vote loser.⁶ Under the proposed system, 41 election outcomes would have remained unaltered except for 51 additional electoral college votes attributed to the victor. Of the four elections where such a change might have mattered, only two would have been shifted under the proposed compromise — the elections of 2000, in which Al Gore would have won the presidency, and 1876, in which Samuel Tilden would have won the presidency. Note that in the political sphere of 2020, Al Gore would likely be considered liberal while Samuel Tilden would be considered conservative, despite both hailing from the same party name.⁷ In the remaining two elections, the results would be unchanged as the electoral margin was greater than 51; Benjamin Harrison and Donald Trump would still be named victors under the proposed system.

The system achieves neutrality by combining the brighter points of the Electoral College and the popular vote method. Given that the Electoral College structure persists under the proposal, all states, in particular less populous states, maintain their voices and importance in federal elections. However, the added weight given to the national popular vote bolsters the importance of all voters, without bias, and regardless of the resident state.

Readers may by now be wondering why the proposal calls for specifically 51 electoral college votes. The new electoral value must be as unbiased as possible, ideally rooted in a mathematical or fundamental basis. Initial considerations based the value on models that determined a number which might alter 50% of previous contested elections. However, the value of 50%, the measure of altering previous elections, and even the elections themselves were all arbitrary measures. It became evident that some degree of subjectivity would persist in a mathematical basis, and thus a more symbolic method arose. In an effort to provide a real-world basis for the figure while remaining practical, 51 became the final number for the following reasons:

51 represents each of the electoral vote-holding entities that exist today; that is, the 50 states and the District of Columbia. By choosing 51, there exists a means for the allocation of electoral votes to the popular vote to expand with the nation. Should Puerto Rico, Guam, or any other territory be incorporated into the United States, the number will increase by precisely the number of entities that join. Imperatively, 51 does not mean an allocation of one electoral vote per state (and D.C.) — it is simply a representation of the number of existing states/voting districts in America at any given time, thus also changing in accordance with fluctuations in population. The change this figure presents maintains feasibility where a more substantial change may not. Were it to be implemented retrospectively, 51 electoral votes given to the popular vote winner would not dramatically alter our electoral past. Intuitively, one may see how allocating a number far too large, for example 500 electoral college votes, would not assist the goal of amending our flawed but functional system, but rather would obliterate it. 51 does not introduce political bias — any political party could stand to benefit from such a change if different campaign tactics were to be implemented prudently. Recall that, of the two election outcomes this system would have altered, one would have shifted to a conservative party, while the other would have shifted to a liberal party. Deeper than parties and political ideals, this compromise broadens democracy and strengthens the voice of Americans. Every single American vote stands to increase in strength through the proposal.

Aside from the numerical value itself, the mixed-method proposal provides a number of benefits without introducing chaos or difficulty. By largely preserving the electoral college process as it stands and simply building on top of it, no adjustments or alterations need to be made to any existing legislation on state electoral processes. States maintain complete control over the selection of their electoral allocation method. Maine and Nebraska may continue to implement congressional representation and any others are free to join them.⁸ Furthermore, no new electors need to be established since the electoral votes under the mixed-method compromise are not state-allocated. Here, the electoral votes are not represented by any tangible body of people, but are themselves a representation of a statistic. If Hamilton and Madison had been presented with an elector-less electorate, they would most assuredly have disagreed; however, the modern American people may be pleased to avoid the possibility of dissenting or “faithless” electors.⁹

Notably, the mixed-method proposal has many implications for improved campaign practices and voter representation. In order to safely win an election, no political party could afford to ignore either aspect of the system — the existing Electoral College or the popular vote. Given the viability of targeting the popular vote as a successful strategy, candidates would need to adopt elements of both systems into their campaigns or risk defeat. Through a need to address both aspects of the system, shortcomings of each pure method fade while the benefits of each elevate.

For example, since receiving a portion of any state’s votes bolsters the odds of winning the 51 national electoral votes, the proposal has the ability to strip away battleground states’ ultra-competitive edge. As a result, candidates would no longer need to spend a disproportionate amount of time or resources attempting to narrowly break a state’s popular vote cusp. Balanced messaging and broad support would become viable strategies and result in political platforms that better reflect the needs of the national body.

Above all else, the proposal grants every American a stronger vote. No matter the district or county or state, every vote cast would have added value. Voters in dense, populous states would no longer be underrepresented as individuals, while those living in smaller states would be better able to project their voice to the national level. Under both scenarios the proposal incentivizes states to produce the highest possible turnout in order to contribute the greatest possible weight to the 51 national electoral votes. Voter suppression would inevitably persist, but deeper scrutiny of state turnout would likely increase as well, bringing greater awareness to disparaged communities and reducing ostracism. The mixed-method system emboldens the American voter without compromising state-level needs.

Regarding benefits of either system in pure form, none are lost in this proposed compromise. Elections continue to be protected from foreign influence and dogmatic party leadership, both through transitory assemblies of electors and an incorruptible, human-less statistic of 51. Congressional influence does not dictate the American leader, and thus no president becomes beholden to Capitol Hill. The raised threshold of victory necessitates a broader sampling of the American population but does not do so at the expense of small states or fewer urban voters.

The proposal finds its strength by balancing elections between state and federal values. Championing a solitary solution that neglects the needs of many Americans will never prevail; only with a carefully crafted compromise can we remedy our failing system. With the simple addition of 51 electoral college votes to the national popular vote, the mixed method proposal establishes exactly that by mitigating the shortcomings of the individual methods and maintaining and improving upon their benefits. Presidential candidates face a need to reach voters from all walks of American life, promoting a political era of reformed campaign strategy and a dampening of hyper-partisanship. For the first time in nearly 60 years, our electoral body would increase by Constitutional provision. As more voices are heard in presidential campaigns, our leaders would begin to better represent the people. The compromise, shaped for the people, forces the needle of our republic to redirect towards democracy. In reading this paper, continue the discourse; through discussion and compromise we will achieve the best possible outcome for each other. Only together may we work towards a more perfect Union.