03 November 2012


There is an increasing possibility that Romney may win the popular vote and lose in the electoral college. This is likely to result in calls to abolish the electoral college, as there were after the 2000 election. There are a number of reasons why this would not be a good idea. Given past history and current potential voting patterns the electoral college does not give an advantage to either party. If the election was to be decided by the popular vote, and if that vote was very close, as has happened frequently, it would be far more perilous to recount votes nationally than in a single contentious state. In addition, any attempt to change the electoral college wholesale will fail for the simple reason that smaller states would lose out and get even less attention than they are getting now. Since smaller states outnumber larger states there is no way such a change could get through congress, where a 2/3 majority is required, never mind the states, where a 3/4 majority is mandated, to pass a constitutional amendment. Since an amendment is required to make such a change there is simply no way it would ever pass. In any event, there are always unintended consequences when something is changed at the federal level before it has been tried in the states, which is why the federal government should be doing far less than it does and allow the states to experiment more.

However, incremental changes are possible. According to the constitution “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress....” This means that the state legislature could select the electors in any number of different ways. Nothing binds us to the “winner take all” system that prevails in most states; it is simply convention. 

One suggestion out of California is that state electors be mandated to vote for the winner of the national popular vote. This is ridiculous because it effectively disenfranchises not only the voting minority, but the majority as well, so no one’s vote counts. For example, it is quite possible for one candidate to win the popular vote in that state, but lose the national popular vote, which would then require the electors to vote for a candidate that they, and the majority of the state’s voters, opposed. 

Nevertheless, nothing stops a state from allocating its electoral votes the way they see fit. In a large state those voting for the losing candidate are technically disenfranchised because the winner gets all the state’s electoral votes. But this could easily be changed. For example, there is nothing to stop a state from allocating its votes by congressional districts, giving the electoral vote to the winner in each district. In that case instead of one candidate getting all the state’s electoral votes, they would be apportioned based on who carried each district. This system is actually being used now in Maine and Nebraska. There is nothing to stop other states from doing the same, or for creating electoral districts on some other basis. As indicated in the constitution, the states have a fixed number of electoral votes which their legislatures can apportion in any number of different ways. 

Thus changing the electoral college begins at the state level, as it should. Realistically however, politicians are more likely to consider changes less on the merits than whether or not they get any political advantage from it. Any change is going to produce winners and losers, so the only way that significant changes can be implemented is through consensus, which is as it should be. 

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