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The Supreme Court's ruling on faithless electors could pave the way to removing the human component of the Electoral College.
Bloc voting is a bigger problem than electors going rogue. Here's a fix.
Johnson is executive director of Election Reformers Network, a nonprofit founded by international election specialists to promote electoral improvements in the United States.
<p>The Supreme Court has disarmed one time bomb ticking away in our presidential election system — the risk of "faithless" electors throwing an election to an undeserving candidate. Other critical problems remain, which the decision can play a part in helping us address. </p><p><a data-linked-post="2646350700" href="https://thefulcrum.us/voting/faithless-elector-2646350700" target="_blank">The court's conclusion this week</a> that the Constitution does not "establish that electors must have discretion" should end the claim that electors play an important role in our system of checks and balances. The electors have never checked or balanced anything, and we wouldn't want them to. </p><p>Debates about the role of electors usually include conservatives citing our founding compromise between small and large states and the resulting electoral advantage for the smaller ones — which many Republicans perceive as critical protection against tyranny of the majority. But "Why electors?" is a separate question from "Why an electoral advantage for small states?" </p><p>Nothing is gained and no party benefits from keeping human electors, as compared to states' simply reporting their electoral votes. Monday's unanimous decision, supported by all five of the conservative justices, should help establish consensus on this point. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>We should also be able to build consensus that most remaining problems with our presidential system stem from the winner-take-all electoral votes rules of 48 states, not the Electoral College advantage for small states. </p><p>Some facts help demonstrate why. </p><p>First, the United States is not exceptional internationally in having votes from different regions carry different weight. Every constitution addresses both citizens and territory, and in that balance many convey greater voting impact to less populated regions. In Britain, the smallest parliamentary district has one-sixth the voting population — and thus six times the impact on who becomes prime minister — as the largest.</p><p>Second, polls consistently show roughly two-thirds of Republicans oppose electing the president by national popular vote, the mechanism often proposed to end the advantage for sparsely populated states. </p><p>This is the context that makes amending the Constitution to switch to a direct popular vote effectively impossible. It also should shape our thinking about the viability of the National Popular Vote Compact, under which states agree to award their electors to the national popular vote winner once states with a combined 270 votes (a majority) sign on.</p><p>Lastly, contrary to conventional wisdom on the left, Republican nominees do not now gain a major advantage from the distribution of electoral votes. </p><p>Small-state voters certainly have more impact, but in 2016 the impact of the average red state voter was almost exactly the same as her blue state counterpart. Similarly, Donald Trump did not become president because of small states: The 16 least populous split, eight to eight. Instead, Trump won from second place because he carried states with smaller margins of victory than Hillary Clinton did. </p><p>Winner-take-all is the reason our elections effectively sideline two-thirds of the states, making voting largely meaningless in most of the country. Presidents in office respond to this odd incentive, often prioritizing swing states over the nation as a whole.</p><p>Either party can end up on the short end of margin-of-victory math. Republicans were in 1960 and could easily be again, particularly if Texas transitions to thin margins for Democrats. And, at the state level, neither party likes that both tickets ignore all but a handful of battlegrounds. </p><p>So it ought to be possible to build support for replacing winner-take-all with a new system that nonetheless maintains an advantage for small states.</p><p>Winner-take-all is nowhere in the Constitution, but became entrenched through competition among states to maximize their impact. The Founders quickly regretted this, and most advocated for amendments to prevent states' using winner-take-all. </p><p>The best known alternative is what's used by Maine and Nebraska: two electoral votes for the statewide winner and one for carrying each House district. But that injects gerrymandering into presidential elections and, applied nationwide, would still have yielded a Trump victory in 2016. </p><p>Far better for states to allocate their electoral votes proportionally to the candidates, with the proportional calculation carried to the right of the decimal point to reduce rounding.</p><p>Seventy years ago, senators voted 64-27 to amend the Constitution with exactly the features discussed here: replacing human electors with electoral votes, replacing winner-take-all with proportional allocation, and retaining the advantage for small states. </p><p>The version electoral reformers are pushing now is an improvement, because it would limit the proportional allocation to the top two vote-getters nationwide. </p><p>Here are four reasons this is a good idea: </p><p>1. The president would nearly always be the popular vote winner.</p><p>2. With shares of electoral votes available in every state, candidates would have incentive to campaign nationwide — because every state would matter. </p><p>3. The "spoiler" problem would largely be fixed. (The 1 percent in Michigan for the Green Party's Jill Stein probably swung 16 electoral votes to Trump four years ago; with top-two, her impact would have been .05 of an electoral vote.)</p><p>4. Our state results would finally reflect our true preferences, replacing the image of warring red and blue with just different shades of purple. </p><p>In the Supreme Court's decision this week, it's possible to see the justices' concern over a problem that was not even mentioned: the exceptionally high hurdles to altering the Constitution. </p><p>In less polarized and less chaotic times, maybe the court would have treated the textual questions more strictly, with the amendment path cited as an available remedy to the risk of electors permitted to be "faithless" with their votes. </p><div></div><p>If there are such doubts on the court about the prospects for amending the Constitution, we should not share them; there is no future for a country that cannot update its founding document. The outlines of a viable amendment to fix our presidential system are in plain sight. It's time to start transforming them into reality. </p>
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Kameleon007/Getty Images
Elector faithlessness is the least of the college's problems
LaRue is former deputy director of the Eisenhower Institute and of the American Society of International Law. This piece is adapted from his article for a forthcoming issue of the University of Idaho Law Review.
<p>Listening last month, as Supreme Court proceedings were broadcast live for the first time, was a treat. In the "faithless electors" case, however, the novelty contrasted with the likelihood that the court's decision this month won't change much about how we select the president.</p><p>Whether states can punish electors for changing their pledged votes is a minor issue in the plethora of Electoral College problems. </p><p>The court is addressing it because lower courts rendered contradictory verdicts for cases from Colorado and Washington. Yes, the original idea of the Founders is that the electors would act as a sort of board of trustees in choosing the president. But practice quickly evolved toward the current system, voters selecting electors. And we now have more than 200 years worth of experience with their service as our delegates, instead of trustees.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Even if the court decides electors can change their votes without consequence, that would not unleash the warned-of chaos of rogue electors conspiring or being bribed to change their votes — and with them the election's outcome. </p><p>Faithless electors are already rare and inconsequential. Of more than 23,000 votes cast since 1804, fewer than 100 can be considered faithless. Some peg the number at just 16. They will become even more rare, regardless of the court's decision or any state attempts to tighten laws binding them to vote the will of the electorate. Each political party will simply undertake deeper vetting to ensure its electors support its nominee.</p><p>The Electoral College's insidious erosion of democracy in each election and its capacity to cause dramatic chaos should concern us more. </p><p>Every four years it violates political equality by weighing each vote differently, based only on the state in which a citizen lives. Then, 10 percent of the time it delivers a misfire election, in which the winner of the most popular votes loses the election. This has occurred in five of the 49 elections since 1824, when the popular vote was first recorded.</p><p>Perhaps most damningly, the Electoral College disincentivizes voting. Too many states — red and blue, populous or not — are considered "safe" for one of the parties, which depresses turnout. Republicans and Democrats alike in such states too often can think "My vote actually won't make a difference" and stay home. In 2012, turnout in non-swing states was 11 percent below that in the battleground states. That only a handful are perceived to matter was demonstrated when Democrats Hillary Clinton and Tim Kaine campaigned in just 14 states four years ago.</p><p>Finally, the Electoral College was not the result of Founders' wisdom — but of their desire to finish and go home. It was a poorly conceived, last-minute transactional compromise. Its initial format failed outright after just four elections, and it has remained a thorn in democracy's side since being slightly tweaked with the 12th Amendment in 1803. It does not merit repair now.</p><p>Replacing it with "just" the popular vote is not viable, either, because we use winner-take-all plurality voting. In 19 elections in the last two centuries — two out of every five — a majority has voted for the losing candidates. Our leaky two-party system has meant two modern presidents have been elected with just 43 percent support, Richard Nixon in 1968 and Bill Clinton in 1992. </p><p>The Electoral College also minimizes the impact of third parties; if it is removed, more independent candidates would stay in the race through Election Day and the country would experience continued and even smaller plurality winners. The resulting destabilization would require yet another fix.</p><p>Majority rule — "the fundamental principle of free government," according to James Madison — should be our goal. Painfully and ironically, though, we do not pursue that when voting for president. Achieving it would require using some form of runoff, whether a second round for the top two vote-getters or, more plausibly, a version of <a href="http://thefulcrum.us/ranked-choice-voting" target="_self">ranked-choice voting</a>. </p><p>The National Popular Vote Interstate Compact, which would have states award their electors to the national popular vote winner, does not get us there. I applaud its aspirations, but it is destined to fail — and not because it has a partisan cast (only blue states are participating so far), permits plurality winners and is potentially unconstitutional. </p><p>Its inherent instability would be its fatal flaw.</p><p>First, by retaining the Electoral College structure, the compact signals to voters their state identity still matters — contradicting the compact's primary message. Then, if a participating state's voters support the loser of the nationwide vote, strong dissonance will occur when their electoral votes are awarded to the winner. States will respond by withdrawing from the compact, maybe dropping it below the 270 electoral votes required for activation.</p><p>This flaw will get closer scrutiny should the compact get closer to adoption. It is embraced now by 16 states plus D.C., representing196 votes. If the number reaches the 240s, say, the final states to get over the top will never materialize — and some participating now will likely drop out.</p><p>The Electoral College's ongoing damage to our democracy needs to be stopped. We need an election system that elects a president with majority popular vote support. And since we cannot go around the Constitution to correct a constitutional problem, this means pursuing an amendment, arduous as it appears today.</p><p>Getting such an amendment through Congress with two-thirds majorities, then ratified by 38 states, is likely to require a kick in the constitutional pants — from more frequent misfire elections where the Electoral College winner and popular vote winner don't match (most likely), an election decided by the House after no candidate secures 270 votes (less likely) or, if the Supreme Court allows it in coming days, enough electors changing their votes to change the outcome (least likely). </p><p>This could take many years to play out. But the sooner we give future generations the opportunity to celebrate the closing of the Electoral College, the better.</p>
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Tristiaña Hinton/The Fulcrum
And the winner of the first Democracy Madness is ...
The Democracy Madness champion has been crowned: Ranked-choice voting bested the Cinderella story of the tournament, a National Popular Vote Interstate Compact, to win our reader-driven challenge.
The winner, with 56 percent support, emerged over the weekend with the biggest burst of balloting since our contest started two months ago. That's when we asked you to start deciding which of 64 ideas for fixing the system would be the most transformative at ending the dysfunction and putting voters back at the center of things.
<p>
Ranked-choice voting is an alternative to the system used for most American elections throughout history — voters picking one candidate and the one with the most votes (even if it's only a plurality) winning.</p><p>Under RCV, voters list candidates in order of preference. If no one wins by securing a majority of first-place ballots, the candidate with the fewest No. 1 votes is eliminated and that person's ballots are redistributed based on their No. 2 rankings. These instantaneous runoffs repeat until one candidate emerges with majority backing.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><div class="rm-embed embed-media"><script src="https://app.credspark.com/assessments/should-elections-be-ranked/embed_script.js" type="text/javascript"></script><div class="credsparkQuiz" data-quiz-id="should-elections-be-ranked"></div></div><p><br></p><p>The main benefit, proponents say, is to reward candidates who can capture the broadest coalition of support. Opponents fear RCV holds a high potential to incubate voter fraud.<br></p><p>
The irony was not lost on some folks that RCV was fighting for the top prize in a single-vote contest.</p><div id="839e9" class="rm-shortcode" data-rm-shortcode-id="b7ab8a1510f31868142f59a993023e42"><blockquote class="twitter-tweet twitter-custom-tweet" data-twitter-tweet-id="1268234078962286593" data-partner="rebelmouse"><div style="margin:1em 0">@fulcrum_us @leedrutman Ranked choice voting has risen to the top in a tournament that successively pits two altern… https://t.co/GK7vPRbaB5</div> — Austin Bussing (@Austin Bussing)<a href="https://twitter.com/abussing5/statuses/1268234078962286593">1591205541.0</a></blockquote></div><p>The popular vote co<strong></strong>mpact, which focuses on getting states to promise their electoral votes to the winner of the national popular vote (not their own), had edged out a pair of No. 1 seeds to make it to the final round of the Democracy Madness tournament, but couldn't conquer RCV.</p>
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Tristiaña Hinton/The Fulcrum
Democracy Madness final pits ranked-choice vs. presidential voting
There are officially no No. 1 seeds left in Democracy Madness, our reader-driven contest to pick the fan favorite proposal for fixing what's broken in our political system.
The Cinderella story of the 64-idea tournament, the eleventh seeded National Popular Vote Compact, takes on a second seed, ranked-choice voting, in the championship round.
<div><p>The idea of getting states to pledge their electoral votes to the national (not their own) winner of the presidential popular vote defeated one of the top seeds in the tournament, conducting all elections with paper ballots. To this point, it had already knocked out ideas like creating independent commissions to draw legislative districts, which had been the biggest upset of the tournament — until now.</p><p>RCV, where voters list candidates in order of preference and instant runoffs produce the consensus choice, has continued its coast to the championship round, most recently besting the repeal of the Supreme Court's Citizens United decision. That is the second No. 1 seed RCV has taken down, after toppling the call for a new Voting Rights Act to win the banner in the Voting region.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Now it's time for you to decide which idea will be the champion of Democracy Madness. Can the National Popular Vote Compact continue its Cinderella story and become the belle of the ball? Or will RCV knock it out without a fight like all its other competitors?</p><p>Cast your vote now. The winner will be crowned Monday.</p></div>
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