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January 08, 2005

Real electoral college reform

DavidNYC over at Kos has resurrected an idea to reform the electoral college that was first floated here in 2001 by law profs Akhil Reed Amar and Vikram David Amar.  The idea is to shift to a system in which the winner of the popular vote wins the election, but without amending the Constitution.  The mechanism sounds a little weird at first, but it actually makes all kinds of sense.

This is a longish post, but I hope you'll read it -- this is a big issue and the Amar proposal is the best one I've seen that might (a) work, and (b) have a realistic chance of becoming a reality, if enough people get interested.  More below.

Let's first lay some groundwork.  Under the Constitution, a group of people called "electors" -- not the people at large -- elect the President and Vice President.  Each state gets a number of electors equal to the state's total number of senators and representatives in Congress (e.g., for MA: 10 reps + 2 senators = 12 electors), and each state gets to decide how to choose their electors.  Most states have opted for the familiar "winner take all" system whereby the candidate who gets the most votes in that state gets all of the state's electoral votes (two states, Maine and Nebraska, have different systems).  This system has at least two large, and at this point familiar, problems: (1) the winner of the popular vote may not be elected President; and (2) at least in recent years, the election has tended to be conducted entirely in a small number of "swing states," because states like, say, Mass. and Texas are considered "safe" for one candidate or the other, so campaigning there would be more or less a waste of time.

The obvious solution: change the system so that the winner of the popular vote wins the election -- like every other election in the United States.  The problem with the obvious solution: it requires a constitutional amendment, which is a cumbersome and time-consuming process.

The Amar proposal gets around that problem in a very clever way.  The idea is simple enough to state: states would cast their electoral votes for whichever candidate wins the national popular vote.  Since states are free to allocate their electoral votes however they want, no constitutional amendment is required.  What would be required is enough states passing laws that would say, essentially, "the electors of this state shall support the candidate that wins the national popular vote."

Now, here is where some of the weirdness comes in.  Let's use 2004 as an example: Bush won the national popular vote, but Kerry won Massachusetts.  Under the existing rule, of course, MA's electoral votes were cast for Kerry.  But under the Amar plan, they would have been cast for Bush, because Bush won the popular vote.

Outrageous?  Disenfranchises MA's voters?  Some of the folks posting comments at Kos seem to think so.  But they're wrong -- they don't quite grasp the idea.  The purpose of the Amar plan is to make state-by-state tallies completely irrelevant to who wins the presidency.  The point is that the candidate who wins the national popular vote should be President.  We still have to use the electoral college's state-by-state system as the means to that end, because that's the mechanism that the Constitution sets up.  But the Amar plan simply discards the notion that a state's electors should support the candidate favored by that state's voters.  Instead, what the Amar plan does is turn every voter into a national voter.  And for the presidential election, that seems appropriate.

Implementation is another somewhat tricky issue.  It would be stupid for one state to change to a "national vote" system on its own -- obviously, if MA were the only state to have done that in 2004, MA voters would be the only ones in the country on the "national vote" system, so MA voters really would have been disenfranchised.  Fortunately, there's an easy answer to this.  Each state's new "national vote" law would take effect only if enough other states had adopted a similar law such that the electoral votes of those states were enough to win the election.  So each state's law would say something like "This law shall take effect if, and only if, states whose electors constitute a majority of the electoral college have passed a similar law." 

As the Amars point out, this could be accomplished if as few as eleven states (the largest ones) enacted "national vote" laws.  As long as a majority of the electoral votes are guaranteed to be cast for the candidate who wins the national popular vote, then the national popular vote is all that matters, and candidates would campaign very differently from the way they do now.

Like I said earlier, the Amar plan is the best one I've seen on electoral college reform.  It would transform our current absurd system into a truly national election for President, it would do it without a constitutional amendment, and it would require legislative action in a relatively small number of states.

So, you might ask, how can we make this happen?  More on that soon.

Posted by David at 01:24 PM in Law and Lawyers, National | Permalink


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After almost every presidential election the idea of reforming the Electoral College--or outright abolishing it--gets kicked around. These ideas go nowhere fast for the simple reason that there are more small states that are advantaged by the current system than there are large states that are disadvantaged by it. Thus, a constitutional amendment will never pass the US Senate by a two-thirds majority, and even if it did, it would never be ratified by three-fourths of the state legislatures (see my op-ed in the Dec. 29, 2004 Santa Rosa Press Democrat (can't post URLs here, but you can find it online). Another avenue of reform that is often discussed is changing the allocation of individual states' electors by state legislation, but this presents a massive collection problem that is equally hopeless, and it still doesn't address the problem of the small states having disproportional electoral power.

The path of least resistance would be enacting reform by federal statute, which only requires a simple majority in the House and the Senate. But would such a statute be constitutional? Either I have found a loophole in the Constitution that would permit a reformulation of the Electoral College in order to bring it much closer to the principle of "one person, one vote" (see "Electoral College Math 201") or my argument is based on a specious word game.

By definition, all of us on this blog are political junkies. (My name is Tom, and I'm a political junkie!) However, are there any other political scientists or some constitutional lawyers in the audience who could give this issue an authoritative critique?

Posted by: tgangale | Jan 14, 2005 10:23:19 PM

Tom: I read your article, and while it's certainly a creative solution, its constitutionality strikes me as dubious at best. Also, although it does deal with the problem that small states are overrepresented in the electoral college, it does not address the two problems that I think are worse: the winner-take-all / swing state problem (that candidates only campaign in states where the race is close), and the problem that the popular vote winner may lose the election. The Amar proposal solves both of those problems, and in so doing makes the overrepresentation problem go away by making the whole election turn on the popular vote. And while I agree that it would not be easy to get the necessary state laws passed, the fact that only 11 large states (or any other combination constituting a majority of the electoral college) would need to act makes the collective action problem much less severe than other state-level proposals that I've seen, most of which need close to 50 states to work. I'm not so sure that getting 11 states to act would be any harder than getting a law of dubious constitutionality passed by the Congress, signed by the President, and approved by the Supreme Court (where it would undoubtedly end up).

Posted by: David | Jan 15, 2005 3:42:23 PM

Thank you all for enlightening me on this subject. Here in Texas, my vote for president has less value than a three legged man in a Texas two-step competition. I wonder if ya'll might have any info on specific groups and bills in states, especially Texas?

Posted by: James | Jan 28, 2005 7:21:58 PM

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