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Mark Makela/Getty Images
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.
Jul 10 2020
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>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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Tristiaña Hinton/The Fulcrum
During the outbreak, an election timetable change both parties can support
Apr 14 2020
Johnson is executive director of Election Reformers Network, a nonprofit founded by international election specialists now supporting reform in the United States.
Regrettably, the bipartisan cooperation that enabled last month's $2.2 trillion economic stimulus package fell short when it came to addressing concerns about coronavirus and elections.
Congress did allocate $400 million for state election preparation, but proposals to require more voting by mail and early in-person voting met with partisan rancor. And President Trump has now acknowledged the underlying political calculus: Republicans win more often when fewer people vote.
Last week's footage of Wisconsinites risking virus exposure to go to the polls dramatically illustrated the impact of that strategy, and those images perhaps will nudge the GOP position. Trump seems to have moderated somewhat, tweeting that absentee voting "is a great way to vote for seniors, military, and others who can't get to the polls."
Finding common ground on these processes that public health officials uniformly recommend would be a great sign that our leaders can rise above politics in a time of crisis.
<p>But even without such leadership, vote-by-mail and absentee balloting will likely increase significantly for November, with much of that increase coming in states unaccustomed to handing these processes at scale. Election administrators across the country are gearing up for that challenge.</p><p>One way Congress can help that shouldn't be divisive is to give the states more time on the backend, for the stages that happen after elections. </p><p>As many have commented, we should not countenance a postponement of Election Day, which is Nov. 3 this year. But we tend to forget important dates after Election Day that have been set by antiquated federal law, not the Constitution, and that Congress can change for the better. </p><p>The first important date marks the end of "safe harbor," the period established by federal law during which states are ensured their reported results will not be challenged in Congress. This year that deadline is set as Dec. 8. Six days later, Dec. 14, is when all 538 electors meet in their state capitals to vote. Those votes are not officially tallied by Congress for another three weeks, on Jan. 6, and the inauguration follows Jan. 20</p><p>That means 77 days pass between election and inaugural, but states have only 35 of them to process all the ballots and resolve all disputes and recounts — or 41 days if they choose to forgo their safe harbor protections. </p><p>What happened in Florida in 2000 made clear that this is too little time in a contested election. That contested presidential result is often thought of as a story about the Supreme Court, but a key factor in the court's decision was limited time. On Dec. 12 that year, the justices ordered an end to recounting in Florida and effectively awarded the election to George W. Bush, the majority concluding a recount that treated all ballots equally could not be completed before the electors met, just six days later. </p><p>Had there been more time, that argument would not have held sway, the recount could have continued — and the country would have had far more confidence about who won. </p><p>After Florida, election scholars like Ohio State's Dan Tokaji proposed pushing back the safe harbor date and elector meeting date, but the idea did not gain traction. Coronavirus and an upcoming election of great uncertainty give us good reason to revive that proposal. </p><p>One prominent organization backing the idea is the <a href="http://thefulcrum.us/brennan-center-for-justice" target="_self">Brennan Center for Justice</a>, which proposed pushing both dates back in its comprehensive recent report, "<a href="https://www.brennancenter.org/our-work/policy-solutions/how-protect-2020-vote-coronavirus" target="_blank">How to Protect the 2020 Elections from Coronavirus</a>."</p><p>The specific calendar should be established by Congress, but a schedule that could work well would be for the electors to meet Jan. 2 after a safe harbor deadline on New Year's Eve. </p><p>Both parties arguably have equal odds of being on the short end of a closely contested election, so both could benefit from such an extended calendar. Transition preparations would not have to be delayed, and both would-be presidents could begin planning in the case of an uncertain outcome, so there should be no impact on the preparedness of the winner to start governing. </p><p>And the extra time would be very helpful to states in managing the substantial increase in vote-by-mail and absentee ballot envelopes — with or without additional spending or mandates from Washington.</p><p>Mailed ballots require signature verification, which with enough time and funding can be automated, but this November it will likely be done by hand in many places. States will need new processes, equipment and training to meet these challenges, all of which increases the likelihood of unexpected problems and delay. Signature verification also requires a process for notifying voters whose handwriting is challenged and allowing them time to respond. </p><div></div><p>It would be a disaster if the outcome of the 2020 election turned on an incomplete recount in a state struggling with unprecedented challenges and a coronavirus-created version of the hanging chad. Congress has at least this one way to avoid that outcome, and it ought to enjoy bipartisan support. </p>
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Voting
True
Anthony Devlin, Getty Images Europe
A Labour canvasser and a British voter at a polling station near Manchester in December.
Revamp House's election method? Consider the last Parliament vote.
Jan 30 2020
Johnson is executive director of Election Reformers Network, a nonprofit founded by international election specialists now supporting reform in the United States.
Our historical cousins in the United Kingdom vote much like we do — in single-member districts, under simple plurality rules — so their elections are worth paying attention to. This is particularly true now that "the duopoly," the dominance of two parties characteristic of single-member-district systems, has become such a source of concern here in the United States.
The recent elections in the U.K. illustrate just how dominant a duopoly can be, even in a country with well-established third parties. More importantly, the elections illustrate that a new form of elections gaining prominence here, ranked-choice voting, will likely have only limited impact on reducing duopoly power, and that more significant reform means changing the single-member-district system itself, to the multimember approach called for in a bill before Congress dubbed the Fair Representation Act.
<p>Single-member districts make life difficult for alternative parties, even those with reasonable support nationwide. A party with, say, an environment-first agenda, or a moderate-centrist platform, could poll relatively well nationally but not have enough supporters in any given district to win elections.</p><p>This pattern is clear in the track record of Britain's Liberal Democratic Party, which is the kind of centrist alternative often wished for in the United States. The Lib Dems have fielded candidates in most districts — or "constituencies" — for several decades and in 2010 entered government in coalition with the Conservative Party. What the Lib Dems have not been able to do is translate voter support efficiently into seats in Parliament. In the eight general elections since 1992, the Liberal Democrats' 15 percent aggregate vote share has won only 5 percent of seats. </p><p>By contrast, in the same time period the two dominant parties have claimed more seats than their aggregate share of ballots: The Conservatives have taken 37 percent of the vote but won 42 percent of the seats, while Labor, with 36 percent of the vote, has gained 46 percent of the seats.</p><p>In the elections in December, the pattern intensified: The Lib Dems gained only 2 percent of seats despite receiving nearly 12 percent of the vote, and the Conservatives, with 44 percent of the vote, won an absolute majority of 55 percent in Parliament.</p><p>Here in America we don't have the same range of parties — in part because our Congress is undersized, with only one-seventh the number of representatives per citizen as Britain. But we do have political groupings that have trouble gaining representation in proportion to their share of the population. This is true of course of ethnic minorities, and it's also true of categories like rural populations, Republicans in New England, Democrats in the Great Plains and many others. Our country is a dense patchwork quilt of significant minorities covered over by the all-too-familiar swaths of red and blue, monochromatic blocks that fundamentally are rounding errors.</p><p>Isn't this the problem that ranked-choice voting is designed to fix? Not exactly. RCV can mean different things, but in its well-known form today, it gives voters the opportunity to rank their preferences within single-member-district elections, and thus has limited impact on underrepresentation across a nation of single-member districts.</p><p>We can judge whether RCV would have changed the most recent outcome in the UK from exit polls that ask voters for second and third choices. As the chart below illustrates, RCV would give Liberal Democrats more seats on average, but it would not fundamentally address the underrepresentation relative to their share of the vote.</p><p class="shortcode-media shortcode-media-rebelmouse-image">
<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yMjYzNjU4My9vcmlnaW4ucG5nIiwiZXhwaXJlc19hdCI6MTYyODc1NTYyMX0.CFgIRqRKPPQZbB39_AxIkhaxcaDx0eG3JoaE0HS-gEA/img.png?width=980" id="6cd53" class="rm-shortcode" data-rm-shortcode-id="738001cbb285d0cba06b7efdf1e83012" data-rm-shortcode-name="rebelmouse-image" alt="" />
<small class="image-media media-caption" placeholder="Add Photo Caption...">2019 estimate by Election Reformers Network</small><small class="image-media media-photo-credit" placeholder="Add Photo Credit...">Source: Electoral Reform Society</small></p><p><br/></p><p>To be clear, ranked-choice voting has a lot to offer to American voters and political parties, and is particularly needed as we experience a major increase in multicandidate elections. RCV almost always ensures the most supported candidate wins and gives voters the freedom to support longshot candidates without "spoiling" the results. <a href="https://electionreformers.org/research-finds-links-rules-partisanship/" target="_blank">Our research</a> has found greater extremism among House members who get to Congress after a low-plurality primary win in a district that's "safe" for their party — an outcome RCV would prevent. RCV tends to encourage cooperation and reduce negative campaigning.<br/></p><p>What RCV can't do, however, and although some hope it could, is transform our duopolistic politics by significantly expanding representation. For that, we need a system that gives seats to candidates who have strong but not majority support. And that means moving away from single-member districts.</p><p>For Congress, the best alternative is the Fair Representation Act, through which we would elect three to five House members from each district using a form of RCV called single transferable vote. This approach is favored by leading organizations in the U.K. including the prestigious Electoral Reform Society. <a href="https://www.electoral-reform.org.uk/" target="_blank">Analyses show</a> it would have made for much closer correlation between the share of votes and share of seats in prior U.K. elections.</p><p>In this country, the proposed Fair Representation Act has the significant added benefit of addressing gerrymandering, both because it calls for district lines to be drawn by independent commissions and because it would entail many fewer districts. </p><p>With multimember districts, the country's alternative parties would gain new life. The nature of politics between our dominant parties would change, as a candidate from the minority party would likely gain at least one seat in most districts, revealing the true patchwork quilt hiding behind those blocks of red and blue. And the system would boost diversity, bringing more women and people of color to the Capitol.</p><p>Still, the idea has not yet gained the attention it deserves among reform organizations. The relative simplicity and hip appeal of RCV may account for this in part, along with the preference among reform groups for nearer-term achievability.</p><p>The Fair Representation Act will not be an easy win. It will require a majority in Congress willing to change a system from which they have benefitted. But the place is dangerously broken and impossible to fix without such a change. </p>
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