Majority Rule And The Electoral College

I recently participated in a really interesting and informative conference at Loyola Law School in Chicago. (I posted my presentation on Sunday.)The conference title was Democracy in America. Although the subtitle was “The Promise and the Perils,” most presentations were pretty tightly focused on the perils.

Identification of those perils centered mostly on the “usual suspects”: gerrymandering, the Electoral College, vote suppression…But thanks to the participation of some really first-class legal scholars, the discussion had some interesting twists.

The law professors and political scientists who discussed the Electoral College were in agreement that a constitutional amendment eliminating it simply won’t happen; they were equally negative on the likelihood of red states ever joining the Popular Vote Pact (and noted that it might not be able to survive a constitutional challenge).

Obviously, the Electoral College as it exists today is dramatically different from the mechanism as it was originally conceived and even as it was later amended.

According to law professor Edward Foley, who has a book coming out on the subject later this year, the changes made to the College by the Twelfth Amendment in 1804 rested on the assumption that the candidate who won a majority of the popular vote would be elected. Those who crafted the Amendment failed to foresee the emergence of third party candidates whose presence on the ballot often means that the winner of a given state doesn’t win a majority, but a plurality of the vote.

Foley favors a rule that would award electoral votes only to candidates who receive a majority of the votes in that state. (He didn’t say how the votes of that state would be apportioned in cases where the winning candidate didn’t meet that standard—but there are a number of possibilities.)

Ranked-choice voting would eliminate the problem.

Even more intriguing, there is evidently a lawsuit pending that challenges “winner take all” allocations of state electoral votes. Winner take all (which is in effect in all but two states) awards all of a state’s electoral votes to whoever wins, by whatever margin. It’s why Democratic votes for President don’t count in Indiana and Republican votes don’t count in New York—even if the margin is incredibly thin, the candidate who comes out on top gets all the electoral votes. If the votes were apportioned instead—if a winner of 51% of the popular vote got 51% of the electoral vote, and the candidate who got 49% got 49%, it wouldn’t just be fairer. It would encourage voters who supported the “other” party in reliably red or blue states to vote, because–suddenly– that vote would count.

Last February, a coalition of law firms led by the League of United Latin American Citizens (LULAC), and David Boies of Boies Schiller Flexner LLP, filed four landmark lawsuits challenging winner-take-all. According to the press release,

By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law. These suits aim to restore those rights nationwide.

The suit was filed in four states–two red, two blue. Two have dismissed the complaint (the California dismissal has been appealed to the 9thCircuit), but it is still “alive” in two others.

States have the authority to allocate their electoral votes as they see fit, but if some states allocated and others did not, the results would be even less likely to result in the election of the person who actually won the most votes nationally. This case—if successful—would require all states to allocate their electoral votes.

It would help.


  1. Thank you for the follow-up. This proves, once again, the functionality of NOT having a written Constitution, but rather the Parliamentary system which deals with new issues as they arise :: yes, usually well AFTER they arise, but they do get dealt with.
    In England the Conservatives (Tories) were able to slow down reform, but not stop it. Here, the Conservatives (usually Republicans) are able to stop everything, because of ….”look what it says here! And anything else is UNCONSTITUTIONAL!”
    Yes, we have a way of changing, or even discarding the Constitution by having another Convention to adopt a different one, but when corporations are considered as people, not many traditional Liberals are in favor of opening that can or worms.
    So, I guess we’ll have to do the next best thing and that involves in having TWO active and competitive parties in each state, campaigning in each state by BOTH parties, and the outlawing of any kind of gerrymandering that locks political control in the hands of one party.

  2. I clicked on the red highlighted Ranked Choice Voting sentence and was very impressed by what I read. It seems that there are only positive outcomes to Ranked Choice Voting and it eliminates a lot of the bad parts of our current campaigning and elections.

    Thank you for sharing this info. Now, if everyone who attended that conference in Chicago made a huge effort to share this info with everyone they can, these ideas just might catch on with the public and we can start demanding these changes from our representatives in government.

    Sheila, what would it take for someone from that conference to send a letter to the editors of every newspaper in the country that would explain to the voters how Ranked Choice Voting could make our votes count?

  3. Interesting article here on Ranked Choice Voting:

    Maine’s 2nd District outcome proves value of ranked choice voting. Americans celebrate choice 364 days a year. Then on Election Day, anyone unsatisfied by the traditional Democratic or Republican offerings is deemed a spoiler, urged not to “waste their vote,” and warned not to help elect the major-party candidate they like the least. The results from Maine’s 2nd District are proof that it doesn’t have to be this way, and that better politics are well within our grasp.
    The chances of a new Constitutional Amendment tossing the Electoral College is nil. Presidential Candidates will have mount a 50 state campaign.

  4. I maintain that the votes are out there for good governance. It’s the will that is lacking.

  5. I’m sorry, but I am still laughing over the name of the conference–“Democracy in the United States.”

    Quite frankly, I don’t think we were ever a Democracy. In 2019, we are a solid Oligarchy thanks to Citizens United which treats corporations as people. I’m surprised Scalia didn’t give CEOs the right to vote but as long as they can spend unlimited monies they don’t need to vote.

    USA Today recently performed a great piece of journalism aided by computers which disclosed over 10,000 copycat bills in the U.S.–special interests are writing our bills and then being shared with multiple states. It’s called Model Legislation.

    “This work proves what many people have suspected, which is just how much of the democratic process has been outsourced to special interests,” said Lisa Graves, co-director of Documented Investigations, which investigates corporate manipulation of public policy. “It is both astonishing and disappointing to see how widespread … it is. Good lord, it’s an amazing thing to see.”

  6. Yes. The “ranked” system of applying electoral votes is the most fair, therefore, it will never become law. I fear that our current political rancor and divisiveness is here to stay….at least as long as we remain a democratic republic.

    The current lawless and corrupt administration foisted upon the world by the archaic and backward system now in place should be enough of a kickstart to do what is right, but, no…..

  7. Peggy – kudos. Allocating the electoral votes in a state according to the popular vote seems eminently fair – why it won’t happen!

    Ranked order voting is a “nicer”, more intellectual version of offering a NOTA choice. It gets the electorate off the hook for rehabilitating the parties and/or simply electing more main street folks to office. We get the governing we vote for – too bad too many folks are too busy watching sports, reading social media and complaining to own their country for their kids and grands.

  8. Madison in his wisdom gave the states election jurisdiction, including federal elections held in their states. Ranked choice would strike a blow at some of the undemocratic effects of gerrymandering, and it’s a start. Not to throw cold water on the parade, but I think the remaining litigation to have ranked choice the law of the land rather than as a choice of states unlikely.

    I very much hope I am wrong, and since a constitutional convention bound by the long and arduous rules of amendment and given our present and foreseeable political future, it’s not going to happen. However, if enough states (especially those which are heavily populated) were to adopt ranked choice, that’s a start, and most any reform would be better than the current electoral system which has given us, among other things, presidents elected by a minority, a
    result which contradicts one of the pillars of democracy > that those who govern derive their power to do so by consent of the majority.

  9. One things that discussions with conservatives leads to an understanding of is that they have been taught by their entertainment media to distrust democracy. Why? Because they might be subject to the will of a majority which may not be them. They apparently never get around to thinking if not the majority then which minority would extra power be granted to? They just assume themselves.

    As soon as I realized that it was democracy itself that was under attack I realized where that would lead. Here. Where we are now.

    Democracy may not be perfect in every situation but there is simply no alternative to the majority of those governed hiring and firing those who govern in terms of preventing tyranny. As soon as minorities determine that it becomes the search for power, not freedom, that motivates them.

    Democracy is in the details which is how it got surreptitiously stolen from its beneficiaries. We have to fight whatever battles make progress in restoring it in order to restore freedom.

  10. Todd, I would agree with you. We were never a Democracy or a Representative Democracy. The Oligarchy ruled from day one. That system has been chipped away at, universal suffrage is now the law, the elimination of poll taxes, etc.

    The Oligarchy itself, may have to suffer with one person , one vote, i.e., Jeff Bezos, Bill Gates or some other billionaire can only cast one vote. The system as it has always existed and still exists favors the 1% via Campaign Contributions, Pac’s and Superpac’s.

    The Corporate McMega-Media loves the system, they make millions in profits airing any and all types of campaign ads. You will not see the McMega-Media attacking what is clearly a corrupt system of Campaign Financing.

  11. One thing that many fail to appreciate is that in a representative democracy all of our institutions are represented. Ardent church goers reflect religion’s perspective, corporate titans represent those needs, union members vote for those interests, etc.

    Citizens vs United gave corporations double representation which like the EC and gerrymandering destroys the freedom that democracy is the most reliable source of.

  12. Faux News feeds the line to Trump disciples that if the Electoral College is abolished, then voters in the mid-section of this country will be subjugated to the whims of the east and west coast elites, and we all know, don’t we, that they are socialists, Democrats, libs, lefties, etc.. Therefore, you would never have any say in presidential elections if the Electoral College is abolished, and your vote would be nullified. The argument goes that the Electoral College was intended to level the playing field. Of course, that’s not the purpose for the Electoral College.

    I’ve been present when such arguments are raised, and my reply, which leaves them stumped is: “so that means that the vote of some farmer in Indiana essentially nullifies the votes of 5 or 6 California residents, and that’s what our founding fathers intended”? All they know is that it benefitted Trump and it will benefit future Republicans, no matter how unfit for office they may be, and that’s just fine with them.

  13. Winner-take-all system is indeed the culprit, not the advantage of small States in the Electoral College.

    Hillary won 7/12 smallest States and Trump won 7/10 largest.

  14. Thank you for this. I’ve never understood why a candidate who receives 50.1% of a state’s popular vote should get 100% of that state’s electoral college votes. while the candidate with 49.9% of the popular vote receives none. This is disenfranchisement in the extreme. So elitist. So unfair.

  15. What you learned as attendee confirms much of what I have said in response to the issue of Electoral College. I.E. Only an almost impossible constitutional amendment will remove it from the process; interstate compacts are not likely or constitutionally a remedy; states elect the POTUS via electors selected in a manner determined by the state legislature which once did and still could involve no popular vote. Once more, courts have ruled that electors are not bound to vote for the candidate to which they are pledged. They are an independent fourth branch of the federal government. And, all other aspects of the process as a exercised today are extra-legal ( at times as an usurpation) in relationship to the Electoral College. The 1800 election caused an attempted constitutional response to the unforeseen need to separate the election of VP. But the extra-legal continued to evolve. The usurpation happened in 1841. When W.H.Harrison died John Tyler was not to BECOME POTUS but to act as he was until the 1840 Electoral College met to pick a new President. His ascension was an unchallenged ignoring of founders constitutional intent.

  16. The winner takes all system destroys any chance for an independent or any other party from being president. It destroys the competition by forcing all votes to go to the majority and solidifies a two party system. This is what the electoral College is for; to allow all voices to be heard even if it’s only one district. If the electoral College was a form of voter suppression that helped the white candidates only, than Obama would never have had a single term but he had two.

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