Answering @chrkirk: Electoral College’s Voting Problems Violates Equal Protection Clause

How Much Is Your Vote Worth?
From: New York Times Op-Chart November 2, 2008
This map shows each state re-sized in proportion to the relative influence of the individual voters who live there. The numbers indicate the total delegates to the Electoral College from each state, and how many eligible voters a single delegate from each state represents.
Source: The United States Election Project at George Mason University.

Having read the article How Powerful Is Your Vote? by Chris Kirk several times, I still disagree with it. The article’s premise is that by using the Electoral College (EC) system, the votes cast in less populated states are somehow “more powerful” than those in more populated states. To posit such an assertion is to demonstrate a wholesale lack of understanding of the system. That is not to say the EC system is perfect, nor that changes to it are not needed; rather, it only acknowledges the author’s fundamentally deep misunderstanding of the manner in which the system is established, and a virtually wholesale ignorance of the Constitution.

Apparently, as evidenced by the graphic seen herein, others are similarly misguided. However, one would expect more from George Mason University. Much more, in fact. However, to understand – as I mention later – the bias is strictly and exclusively from including 2 Senators in the number of Electors. Dr. Mark Newman, PhD, who is the Anatol Rapoport Distinguished University Professor of Physics in the Department of Physics and Center for the Study of Complex Systems at the University of Michigan correctly writes that “The electors are apportioned among the states roughly according to population, as measured by the census, but with a small but deliberate bias in favor of less populous states.”

According to the Constitution in Article II, Section 1, Clause 2 & 3, Electoral Votes in each state are equal to the number of Senators (always 2), plus the number of Representatives (the number of which are determined by the Census, according to the Constitution, and assigned proportionally according to population). For example, Alabama has 7 Congressional Districts, and 2 Senators. So, it has 9 Electoral College votes. Montana has 3 Electoral College votes, because they have 2 Senators and 1 Congressional District. In Article I, Section 2, Clause 3 of the United States Constitution, it states:

“Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative; and until such enumeration shall be made, the state of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.”

Students of history also acknowledge that the establishment of our representative form of government – having a House of Representatives AND a Senate – is significant for two reasons. First, the House of Representatives is a more ‘direct’ form of representation because they are assigned proportionally according to the Decennial United States Census, because elections for the House occur every two years, and because Spending Bills (the Budget) originate in the House. The Senate is also representative, although in a different manner. The Senate is a more staid body, there are 2 Senators per state (population does not matter), and they are elected for staggered 6 year terms, so that no state elects both Senators in the same election. By nature, the Senate deals with matters of a long-term basis guiding the nation’s governance, whereas the House is a more tumultuous body.

Again, because the article’s author (Chris Kirk) figures each state’s 2 Senators into it’s own calculus, and then asserts that somehow, a state has more, or less, power because of it, is to demonstrate a fundamental ignorance of our system of governance ~and~ the Electoral College.

Granted, there are faults with the EC system.

For example, significant under-representation of racial/ethnic minorities, including women and youth, are common with the so-called “winner take all” EC vote counting system, as are undervoting (most common with so-called “at large” systems in which voters cast ballots for one race, when numerous offices and/or measures may be on the ballot), decreased voter turnout, divisive campaigns which fail to address entire constituencies and their unique needs, disenfranchisement of voters whose voices are not represented by their vote, monolithic elections in which one party has a monopoly on power (thus increasing corruption & fraud risk) and predetermination of winners. In fact, many have said that the so-called “winner take all” system is a throwback to the American colonial age because they were instituted in that era in our nation, and insofar as all modern nations have abandoned such a system.

Problems with the EC system itself include the right to vote – commonly known as ‘suffrage’ – because it is not universal. When the EC was created, neither women, nor Indians, nor Negroes – who were then subject to slavery – had the right to vote.  In fact, Negroes and Indians were, for all practical purposes for the Constitution and Census Bureau, counted as LESS than a whole person, and in a very real way, the Constitution and the EC system both entrenched slavery. In essence, only White male property owners were allowed to vote. However, in the years since, those gross inequities have been – at least in part – rectified through the 19th Amendment which gave women the right to vote, and the Voting Rights Act of 1965, which gave Negroes and other non-White people the right to vote. Presently, some states continue disenfranchisement, and deny convicted felons the right to vote, some do not (Main and Vermont) and allow voting even while incarcerated, some automatically reinstate voting rights after release (14, including the District of Columbia), some states return voting rights after parole or probation (when the full sentence is served – 29), while yet other states (9 – including Alabama) make restoration of voting rights extremely difficult by requiring the court or governor to intervene… and some states even have two sets of rules, which accounts for the total of 54 in the differing scenarios.

However, the EC system’s greatest fault may be this: It is the states which have determined and employed the so-called ‘Winner Take All’ system for awarding Electoral College votes. THAT is perhaps the single greatest fault of the Electoral College system.

There are, however, two states – Nebraska and Maine – which have a different system, which awards electors using a different method whereby “the winner of each district is awarded one electoral vote, and the winner of the state-wide vote is then awarded the state’s remaining two electoral votes.” That method has been used in Maine since 1972 and Nebraska since 1996.

Some say that if other states were to adopt such a system it would be anti-competitive, “and it would increase the likelihood of a candidate winning the election without winning a majority of the national popular vote.”

In my estimation, what needs to happen is for Congress to assign proportionality to the distribution of EC votes by passing a law which accomplishes just that.

For example, one option would be in which the EC could remain largely as it is now, with a Federal intervention (i.e., an Act of Congress) which could simply say “Electoral Votes in the respective states shall be assigned proportionally according to the Popular Vote in the state.” Details could be notated following, as it is with many laws. There are cases in which an exact formula would be a matter of necessity, and therefore of discussion and debate (which is what Congress does anyway), simply because some states have very few Electoral College members, such as Montana, which has 3 Electoral Votes. In such a scenario, the Population could be divided equally by the number of Electors and votes cast, to determine the proportion. For example, in Montana’s 2016 Presidential Election, the Clinton/Kane (Democrat) ticket received 177,709, or 35.4% of all votes cast, while the Trump/Pence (Republican) ticket garnered 279,240, or 55.6% of all votes cast, the Johnson/Weld ticket (Libertarian) won 28,037, or 5.6% of all votes cast, while the Stein/Baraka ticket (Green) received 7,970, or 1.6% of all votes cast, while “others” got 8,866 votes, or 1.8% of all votes cast. Under a proportional assignment system, using the percentages of Montana’s 501,822 votes cast, the Trump/Pence ticket would get 2 EC votes, and the Clinton/Kane ticket would get 1 vote. The Formula is as follows: Total Number of EC Votes x Percent of Popular Vote Won=EC Elector Votes awarded. Again, the scenario above is but one example of several which could be employed.

The reason why we need to seriously discuss some revision to the present system is, I think, self-evident. There are also several matters concerning voting and elections which need uniformity.

That 50 different states have 50 different rules for elections, prescribing who can or cannot vote, when voting can happen (e.g., Early Voting, Absentee Voting, etc.) hours of polling, methods and machines used to cast ballots, or methods to count ballots, especially in contested races, and to determine winners, is in my estimation, a violation of the 14th Amendment’s Equal Protection Clause. Because of the gross lack of uniformity in voting, there could be a significantly powerful argument made to Federalize the Election Processes in all 50 states.

Another reason why revision to the Electoral College is needed is that within recent history we have had two incidents wherein the winner of the Popular Vote (PV) did not win the Electoral College Vote (ECV) – 2016, and 2000. The only other times that happened was in 1824, 1876, and 1888. The chances of such an event occurring again are increased because of the bitter, rancorous division in our politics.

Congress could also modify the Presidential Election Process and use the Electoral College by creating a formula which would incorporate the PV with/into the ECV. For example, the PV could count for 2/3 (i.e., 66% of the TOTAL), with 1/3 being supplied by the Electoral College Vote.

I would prefer to see a formula which would favor the Popular Vote, though I could agree to some other formula which would count it less, or even half. Again, for example, if the ECV counted 50% and the PV were 50%, that would satisfy many, myself included, and would acknowledge the important role of the democratic process, and honor the Founder’s principle by incorporating the Electoral College.