Abolishing the Electoral College and creating a National Popular Vote are far-fetched ideas for now. But there’s a more Targeted way to Reform American Elections starting with the Swing States.
Edward B. Foley, an Ohio State University Law Professor, is the Author of Presidential Elections and Majority Rule, to be Published later this year by Oxford University Press.
There are some bold Reform Proposals on the table that deserve consideration in the long run, ideas that would solve the problem that Presidents can be Elected despite the Majority of Voters opposing them, an Outcome unthinkable in any Democracy committed to Majority Rule. The Problem is that most of these Proposals either aren’t going to be Feasible by 2020, if ever, or, on close Inspection, would actually Worsen the Problems they’re intended to solve.
But there is a more Tactical, Targeted approach Reformers could take, one that would be doable by 2020 and would seriously Improve the Current System. This approach wouldn’t Require a sweeping, improbable Overhaul of the Entire System. In fact, it would keep the Electoral College Intact.
The Key is to focus Reform Efforts on Swing States, the Battlegrounds where Elections are Decided, and get them to embrace, via Ballot Initiatives or Legislation, Electoral Systems that Reward only Candidates who Win a Majority of the Vote. Ideally, the Whole Country would Adopt this Reform, but just having the Five Main “toss-up” States on board in 2020 would Eliminate a Significant Amount of the Risk that the Election Results could go against the National Popular Vote.
Most of the Energy to date has been devoted to Replacing the Electoral College with a “National Popular Vote,” which would combine All Votes cast Nationwide into one Unified Count, rather than Tallying them on a State-by-State basis. The idea here is to avoid Situations in which a Candidate wins the Presidency when Voters as a whole actually prefer a Different Candidate. Several of Warren’s Democratic Colleagues in the Senate have introduced a Constitutional Amendment to Implement a National Popular Vote. But a Constitutional Amendment is notoriously Difficult to achieve, especially for this purpose, and especially in today’s Partisan environment.
There is also an effort underway to adopt a National Popular Vote without a Constitutional Amendment. This Plan calls for Individual States to agree to Award their Own Electoral College Votes to the Candidate who Wins the Popular Vote Nationwide. The effort is structured so it doesn’t take effect until enough States Sign on that they Collectively represent a Majority of Electoral College Votes, 270. Once that watershed is reached, the Rule Automatically kicks in, and, from then on, the Electoral College result will effectively turn on which Candidate Wins the most Votes Nationally, and not just in those States that have Signed on to the Plan.
As clever as this Plan is, it has some serious Problems. First, it’s Not clear that the Supreme Court would accept it as Constitutional, given that it’s Designed to Undermine the Electoral College’s System of separate State-by-State Voting. Second, although this Plan has been gathering momentum, it has been adopted by the District of Columbia and 14 States, most recently Colorado, Delaware, and New Mexico, it still remains 81 Electoral College Votes short of the 270 necessary to take effect. It’s unclear that the Compact will reach the magic number before November 2020, or ever.
There is a Third, more Significant problem with the Interstate Compact. As drafted and as Adopted by the States that have signed on, the Interstate Compact would Award the Presidency to the Candidate who receives a Plurality, not necessarily a Majority, of the Popular Vote. Anyone concerned that Howard Schultz, the former CEO of Starbucks, might Run as an Independent, and Siphon Votes from the Democratic Nominee and cause President Trump to Win Reelection understands the Shortcomings of a Plurality-based System. Suppose the Nationwide Vote is 43% for Trump, 42% for the Democratic Nominee, and 15% for Schultz. The National Popular Vote Compact would hand the White House back to Trump, even though 57% of Voters wanted him to Lose.
Recognizing the Limits of a Plurality-based System has caused some astute Observers more recently to Advocate, or at least suggest, a twist on the National Popular Vote Concept: combining it with Ranked-Choice Voting (RCV), a system in which Voters Rank the Candidates in Order of Preference. If No Candidate obtains a Majority of Votes in the First Round of tabulating the Ballots, then the Candidate who receives the Fewest First-Choice Votes is Eliminated, and the Ballots that Ranked the Eliminated Candidate First are Re-Tabulated based on their Second-Choice Votes. If One of the remaining Candidates now has a Majority of Ballots, that Candidate is the Winner. But if there is still No Majority, the Process of Eliminating Candidates One by One is repeated until only Two Candidates remain if necessary, with One of the Two Finalists necessarily having a Majority of Ballots. The System thus avoids Plurality Outcomes.
In Principle, combining a National Popular Vote with RCV is a Compelling Idea.
In 1912, it would have enabled Taft Voters to Identify Roosevelt as their Second Choice. Since Taft came in Third, he would have been Eliminated, and All his Ballots would have been transferred to Roosevelt from those Ballots who Ranked him as second, putting him Ahead of Wilson in the Count.
In 1992, the same System would have revealed whether Perot’s Voters really favored Bush, instead of Clinton, as their Second Choice; if so, once Perot was eliminated in the Tally, those Second-Choice Votes would have helped to put Bush back into Office.
In the 2020 hypothetical Outlined above, Schultz would be Eliminated, and if, indeed, most of his First-Round Voters were Anti-Trump and preferred the Democrat as their Second Choice, then the Democrat would prevail.
As attractive as a Nationwide RCV system might seem, it cannot be accomplished by the clever means of the Interstate Compact. It would require a Constitutional Amendment. This is basic Logistics. It is Impossible to compute a Nationwide Ranking of Preferences unless All States use RCV. Even if enough States joined the Compact to reach 270 Electoral College Votes and even if, as part of the Compact, these States agreed to use RCV, they couldn’t Implement RCV for the National Popular Vote as long as One or more Other States Not Party to the Compact Refused to use RCV.
There is, however, an achievable Short-Term Solution to the “Howard Schultz problem.” It does Not require a Constitutional Amendment. It does Not involve an Interstate Compact.
Reformers should Focus on a Select Group of Battleground States and get them to adopt RCV, if they prefer, a Conventional Runoff, in Presidential Elections. Legally, this kind of Reform is far Easier than a Constitutional Amendment or an Interstate Compact. Each State already has the Constitutional Power to decide how it Awards its Electoral Votes. It is the same Constitutional Power that currently Permits Maine and Nebraska to Award their Votes on the basis of Congressional Districts, instead of a Statewide Winner-Take-All system.
Where should Reformers focus? It’s hard to say exactly how many States and just which ones would need to Adopt this Reform before 2020 in order to make a Difference in the Outcome of the Next Presidential Election. But as a practical matter, the Race is likely to come down to only a few Battlegrounds. The Cook Political Report identifies Five “toss-ups”: Arizona, Florida, Michigan, Pennsylvania, and Wisconsin. If RCV were Employed in these Five States, but nowhere else, the Electoral College Winner would be highly likely to be the same Candidate who would have prevailed if a RCV National Popular Vote were held. In fact, it’s possible that this could hold True if even a Single Pivotal State adopted RCV, think Florida in the 2000 Election.
Adopting RCV in a few Pivotal States won’t Solve All the problems associated with the existing Electoral College system. Candidates, for instance, will continue to Focus their Visits and their Advertising on those States perceived to be In-Play. But since it is impossible in the short term to conduct an actual Nationwide Count that ensures a Majority Winner, the Second-Best Option is to produce a Majority Result in the Pivotal States that will have the Effect of Mirroring what the Majority Result Nationwide would be.
Three of the Five States named by the Cook Political Report, Arizona, Florida, and Michigan, could pursue this Reform through a Ballot Initiative. All Three have already done Redistricting Reform by this Method, though, in light of Supreme Court Jurisprudence, they would be wise to leave their Legislatures some Latitude in Redesigning their Voting systems.
Even in Pennsylvania and Wisconsin, where a Ballot Initiative is Not possible, the Legislatures, both of which are Republican-controlled, though with Democratic Governors, should be Receptive to this Reform. Both Parties are susceptible to a Third-Party Candidate who could pull Votes from their own Nominee.
Getting All Five of these States to Change their Systems admittedly would Not be easy. Because this Idea is so New, there is No Organized effort behind it yet. But if Americans are serious about seeing Real Change by the Next Election, these States offer the Quickest, most Practical Route.
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