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Electing Electors, Mark Miller

Once again, we thank Mark Miller for this wonderful article, “Electing Electors.” Mark is a retired professor of Petroleum Engineering. But you likely remember him when the top major Texas newspapers endorsed him when he ran for Railroad Commission in 2016 — on the Libertarian Party ticket. He was the most qualified, by far! Mark also sits on the LIV Advisory Committee mainly focusing his efforts on election reform.

As we enter our far-too-lengthy presidential election season, the political class begins its inevitable ruminations on the Electoral College – an institution that for many seems archaic and grossly undemocratic. Their concerns generally stem from three features:

  1. Unlike other elected US public offices, the Electoral College provides for an indirect means of selecting our President.

  2. The Electoral College violates the one-person-one-vote political equality principal by giving disproportionate representation to small state voters.

  3. The problem of disproportionate representation is magnified by the fact that all but two states (Maine and Nebraska) have winner-take-all provisions for choosing their electors.

The first issue is largely moot, since electors very seldomly (though occasionally) violate state-mandated statutes that require them to vote for the candidate from the political party to which they are pledged. The other two concerns, however, are clearly ones that deserve to be part of our national political conversations.

It is important to recognize that the US is organized as a federal republic. Governing is divided between the individual states and the federal government. Over the course of our history, we have seen increased nationalization, effectively moving more and more responsibilities away from the states and to the federal government.

This is in spite of the fact that the US Constitution was designed to limit the scope and duties of the federal government in favor of the states. The structure of both the Electoral College and the Senate were intended to foster federalism, in part by making certain that the federal government would not be dominated by larger states.

Many, including me, believe that the trend of increased nationalization of US politics is one that should be resisted. Doing away with the Electoral College and/or altering the structure of the US Senate (and not replacing them with other mechanisms to preserve federalism) would undoubtedly exacerbate the nationalization trend we have already experienced.

The structure of the US Senate and the Electoral College can also be thought of as ways to combat “tyranny of the majority”. Constitutional governments such as ours are intended to allow for collective democratic governance while still making certain that minority rights are protected. Our current state of political polarization seems to be aligning itself along rural vs. urban lines. Taking away some of the fail-safes in the system that protect rural concerns sounds like a recipe for increased, not decreased, political rancor.

I am sympathetic, though, to the concerns of those who feel that their vote (and thus their voice) is diminished by the Electoral College. The dominance of two-party politics in the US makes this concern more significant. Presidential campaigns largely ignore states that vote reliably for one party (such as Texas in the recent past). Voters in those states justifiably feel ignored and even disenfranchised. Reduced voter turnout is a likely consequence, particularly in states for which elections for statewide offices are held in off-presidential years.

There are many who believe that we should simply do away with the Electoral College. This would, of course, require a constitutional amendment – with its very high hurdles of 2/3 of the Senate and House or 2/3 of the states to propose an amendment, followed by ratification by at least 3/4 of the state legislatures. It’s hard to imagine that there is sufficient groundswell for this to occur.

There is, however, an alternative move afoot called the National Popular Vote (NPV) Interstate Compact that would seek to essentially disenfranchise the Electoral College without eliminating it. The NPV Compact would require signatory states to award all of their electoral votes to whichever presidential candidate wins the national popular vote, ignoring how individual states voted. The compact would not be triggered until legislation was enacted in enough states to guarantee the necessary electoral votes to win a Presidential election. Thus far, 15 states and the District of Columbia (representing 196 out of the 270 necessary electoral votes) have passed enabling legislation. A bill was introduced in the 2019 Texas legislative session (HCR 149). But it failed to even get a hearing in committee.

Unsurprisingly, the states that have thus far signed onto the NPV Compact voted Democrat in the last presidential election. The Democrats are clearly stinging from losing two recent Presidential elections (2000 and 2016) in the Electoral College while winning the national popular vote (by pluralities, not majorities). We might be able to see this as a principled move, if it weren’t for the fact that the states (and District of Columbia) that have thus-far signed on to the compact all voted for the Democratic candidate in 2016.

Though proponents of the initiative claim the NPV Compact would pass constitutional muster, there is some doubt that it would do so given Article II Section 10 Clause 3 of the Constitution:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

It would be imprudent to comment on how the US Supreme Court might rule on this issue. However, it would seem to that the NPV Compact, at the very least, violates the spirit of the Constitution, if not its letter. But even if this initiative fails, there are other things that might be considered to reform how we select our presidential electors.

At the time of the 1790 census, each member of the US House of Representatives represented around 60,000 people. Only two states had a single representative (Rhode Island and Delaware). The largest state (Virginia) had 10. Over the years, Congress gradually increased the size of the House as population and the number of states grew. A law passed in 1911 capped the size at 435 at a time when there were 48 states (Arizona and New Mexico were admitted in 1912) and the US had a population of around 100 million people. Each representative represented a little over 200,000 people.

Today the House represents 50 states with a population of nearly 330 million people. Each representative now answers to around 750,000 people. Seven states (Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming) have only a single representative. Our largest state (California) has 53. The protection afforded to smaller states has clearly increased.

Some have suggested that one solution to mitigate the over-representation problem is to adopt the Wyoming Rule. This proposal would increase the size of the House of Representatives so that the standard representative-to-population ratio would be that of the smallest state (now Wyoming). Based on the 2000 census, this would have required 569 House seats instead of the current 435. Increasing the size of the House of Representatives would increase the clout of large states in both the House of Representatives and the Electoral College (e.g., California would gain 13 representatives and electors, Texas 9, New York 7).

Another possibility would be for large states to split into smaller ones. California voters recently attempted to use the state’s initiative process to force a vote to divide the state into three parts (Proposition 9). Though the California Supreme Court removed this initiative from the 2018 ballot, the issue is not dead. California voters may yet be given a chance to weigh in on this proposal.

It’s hard to imagine that elected officials in large states such as California would welcome a move toward power decentralization. But voters might just realize that such a move would provide for more responsive state governments as well as increasing their clout in both the US Senate and the Electoral College.

Finally, we should consider perhaps the most egregious problem with the Electoral College – the winner-take-all provisions enacted by all but two states (Maine and Nebraska). Voters favoring the out-of-favor party in one-party states (e.g., California and Texas) most certainly feel disenfranchised when it comes to presidential politics. Not only are these states ignored during the campaigns (except the primaries), but many see little point in showing up on election day knowing how their state’s entire slate of electors is essentially pre-ordained.

Maine and Nebraska deal with this problem by selecting an elector from each of their Congressional districts based on the votes in each district. The remaining two electors are selected based on the total statewide vote. In 2016, Maine had three Democratic electors and one Republican elector. Nebraska had five Republican electors. Not surprisingly, Maine’s most rural district voted Republican even though overall the state voted Democratic.

This type of system should appeal to many voters. Imagine the electoral vibrancy (and voter turnout), especially in swing districts, where we could anticipate much local campaigning for both the district’s Representative and for President.

The hurdle to this change would be the reluctance of either dominant political party to relinquish the benefits that accrue from winner-take-all. Voters and legislatures in swing states would perhaps be those most interested in considering this type of change.

To either eliminate the Electoral College or bring the NPV Compact to enactment would require large national efforts with very high hurdles. Perhaps those interested in reforming our presidential election system might wish to consider engaging in state-by-state efforts that could prove to be more achievable.

Mark Miller Dripping Springs, TX

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