WINNER TAKES ALL

 It is going to be a very different Thanksgiving in this pandemic year, in part because our government failed us at a time when we needed a strong unified federal response to the most serious attack to our safety and security since Pearl Harbor. A response that never came. Historically, shocks of this kind open the door to changes in the governance systems with an eye on better protecting us from the attacks on our way of life. This time may be no different. Particularly, since it coincides with an election result that puts a new chief executive in place.

This year’s election has spurred a new attention to the peculiarities of our election system, particularly the unique insertion, by our Constitution, of an Electoral College between the votes of the People and the selection of the country’s chief executive. With a race between a Republican (in name only) incumbent and a Democratic challenger, the media reminded us incessantly that the last two Republican Presidents, George W. Bush and Donald Trump, were elected to the Presidency in spite of losing the popular vote to their contenders, Al Gore and Hillary Clinton. (Before then, it had happened only 3 times in history). Could it happen again?  It did not, but that does not convincingly settle the argument in favor of staying with the system we have. At issue is the Electoral College, its existence and the way it is chosen.

Here is the rub.

Almost 6 million Californians voted for Trump (versus 11 million for Biden), but they did not get any of California’s 55 electoral delegates.

5.2 million Texans voted for Biden (versus 5.9 million for Trump), but they did not get any of Texas’ 38 electoral delegates.

Almost 3 million New Yorkers voted for Trump (versus 4 million for Biden), but they did not get any of New York’s 29 electoral delegates.

More than 1 million South Carolinians voted for Biden (versus 1.4 million for Trump), but they did not get any of South Carolina’s 9 electoral delegates.

The rub is not with the Electoral College, it is with the ‘Winner takes all’ rule applied to the nomination of Electors by 48 of our 50 States and by the District of Columbia. This rule, that is ordained by the State legislatures, awards all of the State’s electoral votes to the candidate receiving the most popular votes in that State.

This situation is recognized as undesirable by many in the political arena from both sides of the aisle. It has led to a ‘National Popular Vote’ initiative that, since 2006, advocated for an interstate compact to change the ‘Winner takes all’ rule in all of the 50 States and in the District of Columbia. In fact, as a result of this initiative, a National Popular Vote bill has been enacted by 15 States and the District of Columbia and passed at least one legislative chamber in 9 additional States.

Unfortunately, this bill is proposing to remove the rub the wrong way. The bill dictates that the participating States award all their electoral votes to the winner of the national popular vote, regardless of what the voters of their State decided. It replaces one undesirable system with another. If this interstate compact had been enacted in time for the 2020 election, it would have forced all States to award all of their electoral votes to Joe Biden. Not hard to imagine how that would have gone over in Alabama, the Dakotas, Idaho, Kentucky, Oklahoma and Tennessee!

The merit of an interstate compact as a means to change voting laws as proposed is that it keeps the Electoral College in place, avoiding the need for a Constitutional Amendment, which in the current political constellation would be impossible to achieve. The more reasonable and politically palatable compact would be for the States to agree to split their electoral votes in proportion to the votes received in each State by the top two candidates in the race for the Presidential election.

The ‘Winner takes all’ method of awarding electoral votes is not enshrined in the U.S. Constitution. It is enacted by State law in all but two States (Maine and Nebraska, that each split their electoral votes by District). It can therefore be changed by a vote in each of the States’ legislatures. If a system of proportional awarding of electoral votes (‘proportional rule’) had been in place in time for the 2020 elections, Trump would have been awarded 19 electoral votes in California and 12 electoral votes in New York. And Biden would have collected 18 electoral votes in Texas and 4 in South Carolina. The ‘proportional rule’ applied to all 50 States and the District of Columbia would have awarded 281 electoral votes to Biden and 257 to Trump (a fair reflection of the national popular vote of 80 million to Biden and 74 million to Trump).

Another suggestion for improvement of the existing system for the Presidential election comes from the American Academy of Arts & Sciences (AAAS). In a 2019 report from the Commission on the Practice of Democratic Citizenship, it proposes to substantially enlarge the House of Representatives through federal legislation to make it (and the Electoral College) more representative of the nation’s population. The AAAS report points out that the framers of the Constitution set a constitutional cap of 30,000 constituents per representative. With population growth, the House grew from the original 65 to 435 members in 1929, when Congress capped its size. As the population has kept growing, the average member of the House now represents 750,000 constituents, 25 times the number set by the framers of the Constitution.

The AAAS report leaves the scale and implementation of the proposed expansion of the House to ‘vigorous discussion and debate’, but points out that the Capitol building could easily accommodate an additional 50 members. One can imagine a House of Representatives with 500 members. The addition of 65 members would make it possible to adjust the number of Representatives for each State to better reflect their population size. The 2020 Census could provide the data that would guide the distribution of the 65 additional seats over the individual States. Since each State has as many Electors as it has members of the U.S. Senate and House, addition of 65 members to the House would automatically increase the number of members of the Electoral College (from 538 to 603), which would increase the number of electoral votes needed to be elected President (from 270 to 302.)

These two steps to adjust the existing Presidential election system to the exigencies of contemporary demography and democracy (replacing the ‘Winner takes all rule’ and expansion of the House of Representatives), would go a long way to silencing or muting the voices clamoring for abolition of the Electoral College.  They would avoid the necessity of another Constitutional Amendment. They would respect the protection of the voice and vote of each State, large or small, in the election of the holder of the highest office in the land. They would diminish the risk of a large discrepancy between the outcome of the national popular vote and the electoral vote. They would stimulate voter participation by giving a Republican in a blue State and a Democrat in a red State a further, compelling, reason to go to the polls and vote. And they would provide incentive for Presidential candidates to campaign in every State of the Union and not forego States where the ‘Winner takes all’ rule takes them out of the race.

The pandemic, the change in occupancy of the White House, and the not before seen contentiousness of the election results, are all good reasons to pause and reflect on the rules and regulations in place in our election system. Do they enhance or hamper a functioning democracy?

It turns out, the ‘Winner takes all’ rule does not make the American voter a winner.