Courts to Hear Legal Challenge to Electoral College
What can be done to improve the way we elect our president? The current system, where nearly every state gives all of its electoral votes to whatever candidate wins that state, is nonsensical. It throws out tens of millions of votes and forces candidates to focus on just a few swing states rather than the entire country.
To solve the problem, plaintiffs in four different states recently filed lawsuits contending that winner-take-all is unconstitutional and must be replaced by a system that complies with “one person, one vote.” Their plea is that, unless and until we move to a national popular vote system, states should allocate electors in proportion to the vote in the state: if a candidate wins 58% of the vote in a state, that candidate should get approximately 58% of the electors —not exactly 100%, as happens right now.
A frequent criticism of this system is that it would be too uncertain or complicated to implement and could lead to rounding errors. Massachusetts Secretary of State William Galvin, who is a defendant in one of the suits, has criticized the lawsuit because he claims that “no one has thought through the implications” of a change away from winner-take-all. He also claims that trying to split a state’s electoral votes would result in a complex “mathematical game.”
But Galvin’s comments fail to address how straightforward the plaintiffs’ proposed solution is. In fact, the plaintiffs’ proposed system is commonly used in the rest of the world, and the math behind it is simple to understand and to apply. Here is how it works.
Voters vote as they do now, for a single preferred presidential candidate. Then, the state divides the number of total votes by the number of electoral votes to determine how many votes are required to secure an elector. In Massachusetts in 2016, there were 3,378,801 popular votes cast in a state with 11 electoral votes, so 307,164 popular votes guarantees a candidate one electoral vote.
Using that threshold, Clinton would have been guaranteed 6 electoral votes and Trump 3. But wait: that’s only 9 electoral votes. That’s not a problem, though, because now we can just look at the remaining votes that haven’t yet been translated into electoral votes (remember remainders from your middle school math class?). After being assigned 3 electoral votes, Trump had 169,402 remaining votes; Clinton had 152,214 remaining after getting her 6; and the Libertarian ticket of Gary Johnson and former Governor William Weld — also a plaintiff in the lawsuit — had 138,018 total votes. Since there are two more electoral votes to assign, the first one goes to Trump and the second to Clinton, since they had the two largest remainders. The result in Massachusetts in 2016: Clinton 7, Trump 4.
This system of thresholds and remainders is among the most common and successful in the world, where it’s usually called “party-list voting.” It’s called that because in many places citizens actually vote for a political party, not for a specific candidate, and so the ballot contains a “list” of the names of the elected officials nominated by the party.
Here in America, though, states don’t print the names of the nominated presidential electors and instead prefer to put the name of the presidential candidate at the top of the ballot, along with the name of the political party. But that difference does not change the simple math behind the system.
Admittedly, there is one complication here, and that is how this system should treat minor parties, like the Libertarian or Green Party. In most of the rest of the world, if minor parties get a number of votes sufficient to secure a single seat, they just get that one seat. And, in an ideal world, it would work like that in the Electoral College too. But the problem is that assigning only a few electors to minor party candidates greatly increases the chance of chaos in the Electoral College, since a candidate there can’t becoming president by getting the most electoral votes, but instead has to get an actual majority of all the electoral votes.
Fortunately, this quirk of our system can be solved relatively easily and should not prevent courts from ordering states to implement a better allocation of electoral votes. For instance, states could award votes according to the basic math but permit minor party electors to vote for a major party candidate that is ideologically similar.
Or a state could implement ranked-choice or provisional voting, or even have a “vote threshold” that must be met before any candidate is awarded electoral votes. Any of these would balance the voters’ interest in casting an effective vote with the need to run a presidential election free from excessive uncertainty and distortion.
Another upside: unlike another possible system where electors are awarded by congressional district, this system gets around the fact that gerrymandered districts would tend to favor one party or the other in many states.
In the end, then, it’s true that allocating electors in a way that more closely mirrors the popular vote is marginally more complicated than the too-simple “winner-take-all” method we currently use. But the change would be more than worth the effort, because it translates many more popular votes into electoral votes, and it encourages candidates to campaign in every state, since every electoral vote would be up for grabs.
This would drastically decrease swing-state pandering, increase turnout, enthusiasm, and participation across the country, and improve our politics immensely. It’s worth doing just a little bit of simple math to achieve that result.
To get more information about the lawsuits filed, go here.
About the Author
Jason Harrow is chief counsel for Equal Citizens, where he litigates cases dedicated to Electoral College reform and political equality. He also co-hosts the podcast Versus Trump.