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Possible Ways to Improve the Administration, Management, and Organization of U.S. Presidential Elections

Six Suggestions for Changing the Electoral College
as an Alternative to Eliminating It
Donald Wright Patterson, Jr., December 21, 2016

Now that the Electoral College (EC) has voted, time has arrived for the
post-mortems. As citizens, we need to think about the ways it might be possible to do better next time now that we can know for certain the Electoral College did not want to consider the duty they were created by the Constitution to perform. Most likely abolition of the Electoral College will not be possible any time soon, and maybe it should not be. Feasibly, the EC could still be seen as a useful protective institution if changes can be made to the way it operates. A constitutional amendment to make valuable changes might be easier to achieve than abolition. Here are some possible changes to consider:

1. Elimination of the two at-large members of the Electoral College in each state. This would be a modest intermediary step between the current
status quo with the two senate-related electors in place and the full embrace of the one-person-one vote principle. Without those two at-large votes, the vote of the Electoral College would be somewhat more fairly aligned with the popular vote. These two electors make the EC particularly undemocratic by giving greatly increased power to many small states. The principle of one-person-one-vote is stronger in the United States in the 21st century than it was in 1787, and therefore the EC should be changed to better reflect that change in modern public attitude.

If this change was made before the 2016 election, Hillary Clinton still would not have been elected president by the EC, but the margin would have been smaller: 59 votes assuming no elector defections and a divided vote in Maine (under their state law). (In the 2016 actual electoral vote count, more electors defected from Clinton than defected from Trump, so she ended up worse off at the hands of the electors than she was in the projections at the end of the vote counting. Also in this simulation of the proposed Electoral College change, one vote was arbitrarily given to each candidate in Maine. That meant both at-large votes were arbitrarily taken away from Clinton. If one vote had been taken away from each candidates, Trump would have won no votes in Maine.)

In 1787, people wanted to work through their states, and they wanted the states to have more strength in the system. State power was more important than individual people power. That was reasonably workable at the time because the population difference between the largest state and the smallest state was about 14 to 1. Now the difference is about 67 to 1, and because of that, the small states are made massively more powerful in the Electoral College than they were in the beginning. Even with the at-large electors removed, they are still more powerful, but they are not quite as much more powerful. This step in the direction of fairness might be possible even when elimination of the Electoral College is found to be neither possible nor wise.

Now that the national commitment to one-person-one-vote is so much stronger as a national principle, a change in the Electoral College is needed to reflect this commitment. Alternatively, the electors could be required by constitutional amendment to sustain the national popular vote instead of the state vote totals, but that idea is unlikely to be ratified any more than abolition of the EC would be. That would be one way to honor the one-person-one-vote principle with eliminating the EC, but it would empower the largest states as long as southern states like Texas, Florida, and maybe Georgia are not big enough to counter-balance California, New York, and Illinois with Ohio, Michigan, and Pennsylvania remaining as closely divided so-called swing or battleground states the winner will commonly need to carry in order to win the election.

The proposed change would help break the tyranny of the small, more rural states at the expense of the rest of the people, but some would say the old tyranny would be replaced by a new tyranny imposed by the most populous states. That would remain true unless both the large and small states were more equally divided between the parties. It would keep the EC in place as protection against unwise democracy, but that would only matter if the electors wanted to use the power the Constitution intended to provided them. Most electors in 2016 either did not want to use that power, or they were prevented from using it by state law.

In some states, dissenters against the winning candidate in the state were ruled out of order and required to change their vote. Thus, more dissenters wanted to exercise a dissent than were allowed to do it, but even so, more dissenters voted against expectations than had ever happened before. Commonly, they are referred to as “faithless” electors, but that is not the right word to use, because the dissenters are doing what the Electoral College was created to allow. States laws to the contrary should be considered unconstitutional, but no court test has yet been brought against them.

Even more important than allowing elector dissent in the public interest, the nation needs to do much more to unify national policy perspectives and find national policy consensus on all the issues affecting both urban places and rural. As long as enormous disparities in perspective continue to exist between rural and urban areas, functional and prudent democracy will continue to be impossible. Some people will feel they have been neglected at the expense of others.

With or without the Electoral College, the nation will not be politically workable unless a broad national dialogue can be pursued on many issues. That means reaching an accord based on more than a simple majority. It means unifying the nation under a large majority including many diverse minority groups within it. On this, the nation has been failing horrifically for decades.

2. Stop electing partisans as the electors. When electors represent their parties, the Electoral College can only serve to rubber stamp the outcome as has just been seen. They will not use their judgment wisely to protect the republic in the national interest; they will only act as knee-jerk, reflexive, partisan hacks.

The electors should campaign for the job; they should not be the nameless and faceless appointees of the parties. They should be elected on the basis of their ability to serve the national interest and stand up against partisan interests when that is necessary. They should be well-respected and well-known people in the communities they represent, and they should only be empowered to overrule the majority vote after they have persuasively documented a case for that action. They should not be able to change an election outcome willfully or flagrantly.

The electors should be required to formally justify the decision they want to make. They should present their case and allow at least 30 days of public comment before they are allowed to make a decision based on the case they have presented. If they are found to have failed to fulfill this requirement, the Congress should be allowed to override their decision. That is consistent with the Constitution; the House of Representatives has always been viewed as the decider of last resort in the case of any election difficulty, but the governing details should be carefully and thoughtfully explained in the language of a constitutional amendment.

3. The Electoral College should be given oversight responsibility over federal elections on behalf of the people. They should be able to meet together and deliberate together with investigative authority and the resources to make sure all federal elections are conducted with integrity. They should be able to call on law enforcement to assist them in performing their oversight role, and they should be able to overrule state election decisions found adverse to clear national standards.

Under this proposal, the Electoral College would become the nation’s election administrator-in-chief with the power to unify practices in all states as they affect national elections. They would be empowered to create a uniform national voter registration system even if the system is administered by the states. They would have oversight over all voter purging, and they would be empowered to make sure all federal voters would be treated equally in all states. They could have agency for resolving voting-related disputes within the states. In this role, they would serve as the place of first resort for adjudicating election-related controversies. This is especially important, because politically appointed judges have too commonly proved unreasonably and unfairly partisan in the decisions they make. That was seen during the three-state recount process in 2016.

4. The Electoral College would be empowered to set national standards governing the casting, counting, and recounting of ballots, and they would be able to specify the rules for managing the ballots after elections so they can be available for reexamination. They should be able to set standards for voting machines, and they should be able to oversee and enforce the restoration of the voting rights of felons who have served their time.

Logically, the EC could or should require a paper trail with a way for every voter to check later to see how their own vote was counted, and that might be viewed as important enough to be spelled out in the language of the constitutional amendment redefining the way the EC should operate. The amendment might also require that all ballots be cast by mail as is done in Oregon. Alternatively, ballots could be hand delivered to a specified location over a period of weeks.

5. The Electoral College should be able to oversee, set, and regulate uniform national standards for the conduct of Primary Elections even though those elections would be conducted in the states with participation by the party organizations. For example, the states and their parties might be stopped from excluding Independents from voting in the party Primary of their choice. This is important in reestablishing voter confidence in the election system. Instead of stringing out primary elections for months, a national Primary Day might be set with all states voting on the same day following a short campaign season. This would be desirable because Primaries have become exhausting and unconstructive for everyone, and they use up time and money greatly needed for other priorities.

6. Another possible change might be to make the votes in the Electoral College reflect congressional districts instead of states, but that would not be fair until the impact of the partisan gerrymander has been eliminated. The impact of the gerrymander means the party creating the gerrymanders in a state can make the state harder to win by the other party. The power of the Republican gerrymandering in the United States requires Democrats to win an estimated 12% more votes than Republicans before they can win the Congress, and the same failing would exist if the EC votes were allocated by congressional district instead of by state.