If we needed any further convincing that the electoral college was a political institution that had outlived its usefulness, the focus of the 2012 presidential campaigns on mobilizing voters in a handful of counties in five battleground states should have done the trick. Notwithstanding dubious educations in the issues from a blizzard of campaign commercials and mass mailings, the voters in places like Hillsborough County, Florida and Hamilton County, Ohio shouldn’t have ended up effectively choosing the president for the rest of America. Rather than admit that the institution is antiquated and needs replacing at the national level, politicians at the state level want to tinker with the rusty machinery to extract a bit of partisan advantage when it is cranked it up again four years from now.
In the Pennsylvania State Senate, Republican Majority Leader Dominic Pileggi is pushing to allocate the state’s electoral college votes quasi-proportionally rather than under the current and traditional winner-take-all rule. If enacted, the 2016 GOP presidential nominee would receive some of those electoral college votes even after losing the popular vote. That sounds fair until the details are examined.
If his idea looks anything like the unsuccessful electoral reform bill that he introduced in 2011, the resulting allocation wouldn’t be all that proportional. Rather than solve the ‘wasted votes’ problem that now occurs at the state level under a winner-take-all rule, it would recreate it at the Congressional district level. Voters who cast their votes for the losing presidential nominee in the Congressional districts would still find their preferences ignored.
Pileggi also wants to include a provision for two supplementary electoral college votes awarded to the candidate winning the statewide popular vote. That would make for less proportionality and add complexity to a set of rules that most voters already struggle to understand.
Finally, and this is the kicker, Pileggi’s counterparts in non-battleground states are not rushing forward with similar proposals. Keeping the winner-take-all rule to waste the votes of those who would cast their vote for the Democratic presidential nominee in 2016 is fine and dandy with Republican state lawmakers in states like Georgia and Texas. As with partisan gerrymandering of legislative districts, the objective here is to maximize the effect of votes for candidates of the favored party and minimize the effect of votes for candidates of the opposing party.
So is a state by state patchwork of quasi-proportional and winner-take-all rules constitutional?
Under Article 2, Section 1 of the U.S. Constitution, state legislatures possess the authority to establish procedures for translating popular votes cast in their state into electoral college votes. Like much in that document, this provision was a more or less reasonable late 18th century political compromise, the sort of temporary measure that subsequent amendments should have but did not correct. Today it threatens to undermine democratic self-government.
The constitutional argument against this patently undemocratic and anti-Democratic scheme is that it would violate the Equal Protection Clause of the Fourteenth Amendment. Voters moving between states with winner-take-all and quasi-proportional rules would either lose or gain effective voting power in U.S. presidential elections arbitrarily.
The likely rejoinder to the equal protection argument is that a measure of unequal voting power among citizens of different states is built into the electoral college, because the small population states have disproportionally more Electors than the large population states owing to the constitutionally mandated malapportionment of the U.S. Senate. Creating a patchwork of winner-take-all and quasi-proportional rules, so the counterargument goes, thus further perfects the arbitrariness bequeathed to us by the Framers. Now there is an argument that only a reactionary could love!
If we needed another additional reason to get on with the task of junking the electoral college, that reminder of the original sin of unequal legislative representation wedged inextricably in the U.S. Constitution should be sufficient.
Other countries with presidential systems elect their presidents by popular vote. With every vote given equal weight in the election outcome, the resulting presidential campaigns would tend to focus on national issues rather than on only those issues popular in a subset of locales.
Given our history of spoiler candidacies and their likelihood in the future, the two-round runoff offers the best alternative. Under that system, voters select from among multiple candidates in a first round. If no candidate wins a majority of those votes, the two candidates with the most votes then compete in a run-off election. This system would permit voters to vote sincerely in the first round and delay any strategic voting (a.k.a. choosing between the lesser of two evils) for the run-off election. One positive consequence of that is that minor party presidential candidates and their policy ideas are more likely to get a hearing from the electorate. Another is that the candidates who must run in a runoff are typically forced to build broader coalitions by making appeals beyond their own party loyalists.
What we should expect is not the sort of thoroughgoing electoral reform that would make the national government more responsive and accountable to citizens, but instead electoral tinkering for partisan advantage. While Americans like to think of themselves as a young nation, the United States is actually the oldest liberal democratic regime on the planet. If we acted like the citizens of a younger nation then we could admit that some of our most important institutions are worn out. Whether we can muster the will to replace them before a crisis forces us to do so is a measure of how much spirit is left.