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Can the Electoral College be Fixed?

*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.


If you read yesterday's blog post, you have a good idea of what the Electoral College is and why it is a significantly flawed means of selecting our president. But let's give a quick refresher for those of you who didn't, before we delve into whether this system can be reformed.





The Electoral College consists of 538 representatives who each cast a vote to determine the next president. In the US, we are a republic not a direct democracy; this means we have representatives who make decisions on our behalf instead. Our electoral college means that a president can win the presidency without winning the popular vote, which is infuriating. Presidents win state by state for the most part, sweeping all electoral votes, even in states where the population might have been very divided in opinion. It just overall is an inefficient method that allows for minority rule and reduces the impact of votes. It also actually gives less populated, conservative states an advantage.


So now that you have the short version of why the Electoral College system is deeply flawed, this begs the question, what can actually be done about it? Can it be reformed or abolished?


Though many argue, with good reason, that total abolishment of it in favor of a direct vote is the only fair solution, the reality is it would be very difficult to abolish it entirely. The reason this would be so hard is because this system is specifically outlined and mandated in our constitution, in Article 2, Section 1, Clause 2. As you may know, it is very difficult, even close to impossible, to change something written into the constitution. It would require the passing of a constitutional amendment.


The authority to amend the constitution derives from Article 5 in it. An amendment can be proposed by Congress with a two/thirds vote in both the House of Representatives and in the Senate. Or alternatively, it can be proposed by a constitutional convention called for by two/thirds of state legislatures. As you are probably aware of how bipartisan the US is, and how the conservative party currently benefits from the electoral system, you can imagine that achieving a two/thirds majority in favor of amending this system would be difficult. Even though 61% of Americans reportedly support departing from this system.


The difficulty of amending the constitution might make it seem like it is a lost cause, but there are other alternatives. We have ways of reforming the Electoral College system even if we cannot abolish it. There lies an opportunity in the fact that the Constitution and Courts give states the freedom to choose how they select representatives, and on some of the guidelines/laws they must follow.


Electoral representatives are chosen through political party processes in their given state. However, there is a glaring issue with something called “faithless electors”. These are representatives who go against the wishes of the constituents who voted for their desired candidate. Because although some states have laws requiring that these electors vote in favor of the party that chose them or vote the same as the popular vote in their region, not all do. In 2016 alone there were 7 faithless electors who voted for Trump, against the desires of the people they represent.


Therefore one major reform change that could help across the board would be passing legislation that requires all electors to vote aligned with the people they represent. They should not get to just decide to ignore their wishes and make their own decision; we are supposed to care about democratic principles.


The next helpful reform would be to change how we draw district lines. Currently gerrymandering is rampant and districts are often drawn in such a way to split up minorities so that when they vote in their own best interest, the vote is split as well. We need to make sure districts are drawn fairly and non-partisanly. And we also need to make sure there is a better ratio of electors to population. In Wyoming, there are 193,000 people to one electoral vote, while in California there is 718,000 people per vote. Everyone's votes should have the same proportional weight.


We could also move away from the winner take all approaches for states. In Nebraska and Maine, electoral votes are cast on a district by district basis. So if the majorities in different districts choose different candidates, that can be counted instead of drowned out by the overall state.


These are a few ways we can reform this broken system.


Sources:

https://www.archives.gov/federal-register/constitution

https://www.americanbar.org/news/abanews/publications/youraba/2019/october-2019/q--the-electoral-college--is-it-open-for-interpretation-by-the-c/

https://www.jacobinmag.com/2020/11/abolish-electoral-college-election-trump-biden

https://www.ncsl.org/research/elections-and-campaigns/the-electoral-college.aspx

https://www.ncsl.org/research/elections-and-campaigns/the-electoral-college.aspx (image)