Start with history. The framers stipulated that electors vote for two persons, with the first and second top vote-getters certified by the Senate as president and vice president. It seemed elegant until the framers were forced to recognize that when electors vote for two people in one go, the executive branch might split between rivals.
Exactly this happened in 1796, after Washington’s terms, with the election of John Adams as president and his arch-rival Thomas Jefferson as vice president. Hence the 12th Amendment, which requires electors to vote two separate ballots, one for president, the other for vice president.
Opponents of constitutional reform will insist that the Constitution is not to be tinkered with. But the framers often did. The Bill of Rights was ratified in 1791; five years later the Electoral College was redesigned. The framers amended the Constitution 12 times in the republic’s first eight years. If we must amend the Constitution to make the Electoral College work, we find good company the men who wrote it in the first place.
But we don’t need to go that far. The framers trusted state legislatures to set the rules for casting electoral votes. With the exception of two states, to win a state by one or more popular votes is to bag all the state’s electoral votes. This is why politically diverse swing states are vital to victory.
Scott Walker was correct that 12 states would decide the 2016 election; 375 of the 399 campaign events identified by the nonpartisan FairVote organization were held in those states; 228 were held in just four swing states: Ohio, Pennsylvania, North Carolina and Florida. Only 55 were held in all the states west of the Mississippi.
This is simply out of balance. The concerns of more than half the country don’t amount to much. Look, income inequality and jobs are pressing issues nationally. But does every other issue have to be framed in deference to them? Put it in Montana terms. I don’t like it that coal jobs are being lost, but that’s only one issue that affects the Treasure State.
Where was there serious national conversation about the transfer of public lands or how to manage the West’s declining water supplies? As the bright young contractor I hired to fix my roof battered by spring hail said of the Electoral College: “It means Montana doesn’t matter.” We ought to matter, and so should every other state.
There is no federal law regarding how a state cast its electoral votes. If they wished, every state could divvy up its votes as Nebraska and Maine do, giving an electoral vote to the winner of each congressional district. This practice gives some recognition to a state’s political diversity, although the baleful influence of gerrymandering is the downside.
Even so, no party’s sharpened pencils can so gerrymander as to eliminate opposition entirely. Third-party candidates have no chance either in winner-take-all states, as Ross Perot learned in 1991, when he won 20 percent of the popular vote but no electoral votes in the most successful third-party campaign since Teddy Roosevelt’s Bull Moose run in 1912, when Roosevelt bagged two-thirds as many popular votes as Wilson, while Wilson took the electoral college by five times as many votes. Win a congressional district under the Nebraska-Maine plan, however, and a third party gets an electoral vote and greater national attention.
Not just congressional boundaries matter, however. The Permanent Apportionment Act of 1929 limits to 435 the number of congressional seats; add 100 senators and three D.C. electors, and the result is our 538 electoral votes. The Apportionment Act recognized that congressional districts of 30,000 citizens each—the constitutional minimum—would make congress unmanageable.
Fair enough, but limiting the number of congressional seats doesn’t make the Electoral College democratic. Compare Montana and California. Montana’s population is roughly 1 million; California’s is 39 million; Montana has the constitutional minimum of three electoral votes; California has 55. A Montanan shares an electoral vote with 333,333 other Montanans. Californians share an electoral vote with 709,090 others.
Now that may sound pretty good, but the next time your bridge club, church group, city government or county commission has an election, demand that your vote should count more because your neighborhood is sparsely populated. Or, the next time you vote for governor, representative, or senator, demand that your vote should count less because you live in a city. It would be ludicrous in either case, because we believe in the democratic principle that each person gets one equal vote. Until we elect presidents.
So why not take the next step beyond the Nebraska-Maine model into director popular vote for the president? The National Popular Vote bill proposes exactly that. Taken up in Montana in 2007 only to be consigned to the limbo of further study, the National Popular Vote Bill has already been passed by 11 states representing 165 electoral votes. Seventy percent of those surveyed support the bill. Even Newt Gingrich supports the bill. You can learn more about the bill at http://www.nationalpopularvote.com/.
Neither the Nebraska-Maine model nor the National Popular Vote Bill require a constitutional amendment because states already have the sole constitutional authority to choose electors as they wish. Nothing in the 12th Amendment regarding the actual mechanisms of voting need change. As is done most often now, let the party that won the state’s popular vote choose the state’s electors. Or let the electors be retired political leaders of different parties, like Mike Mansfield and Tim Babcock, who were contemporaries in retirement.
But let it be state law that the electors must vote for the national popular vote winner, and make significant the consequence of being a so-called “faithless elector” who does not vote as the law mandates. Done this way, casting electoral ballots could well become an important democratic ceremony, in states as well as in the Senate, where the vote is certified. State luminaries of the various parties could attest, and senators could profess, to the strength of a nation that finally had the good sense to choose its president in a truly democratic way.
Who cares if in 1824 and 1876, the popular vote winner lost the electoral vote? That’s ancient history, except that in 2000 and now in 2016 it’s happened again. In both those elections Democrats lost, but it’s not sour grapes that compels me. It’s the proud Montanan and American in me who believes in the principles that ought to shape our common enterprise.
I refuse to contribute to a national progressive mood which totters on the brink of nihilism after this election season. It’s easy to give too much credit to Will Rogers’ quip that “the more you read and observe about this politics thing, you got to admit that each party is worse than the other.” Let’s not allow his cynical whimsy to make us forget that Americans are better than either party.
The Constitution was amended to change the electoral college; two states already cast their electoral votes in more democratic ways; 11 states have signed on to a direct popular vote. Time for the rest of us to get to work.
Born and raised in Billings, Bill McRae graduated from Senior High, went to the U of M, and left Montana in 1972 to be a college and university professor of English in the Midwest, South and internationally. He came back home in 2012, in retirement to fish the Boulder River, explore the Beartooths in his Jeep, and read what 40 years of teaching never gave him time to do.