Len’s Letter #75 Fixing the Electoral College

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November 5^th   , 2024                     Len’s Letter #74 Fixing the Electoral College

 While we remind people to vote.  While we drive people to the voting booth. While we line up to vote.   We are conscious of the Electoral College. We know there is a danger that once again the Democratic presidential and vice-presidential candidates will win the popular vote, but lose the presidency in the Electoral College.

If that happens again, it will test the stability of the United States of America.  Americans will not long accept a system that produces such a result again and again – in 2000, in 2016, and again in 2024?

The Electoral College reflects the undemocratic nature of the Senate.  Each state receives the number of votes in the Electoral College equal to the number of Senators and House members who represent that state.  To take our greatest extreme, California, our largest state, has 2 Senators and our smallest state, Wyoming, also has two Senators. Representation in the Electoral College is in disproportion to their population. And representation in the Senate is dramatically in disproportion to their population.

Counting the votes for president and awarding the office to the winner is not the only problem with the Electoral College.  In 2020, Arkansas gave 6 electoral college votes to the Republican candidates by a margin of about 330,000 votes.  Nevada gave 6 electoral college votes to the Democratic candidates by a margin of about 30,000 votes.  Why should both states earn 6 electoral college votes when there votes are so different?

PLAN A: ELIMINATE THE ELECTORAL COLLEGE

One way is to amend the. Constitution.  That would require going through the complex process to eliminate a system that people in many states think protects their ability to elect a President who thinks like they do.

Another way is through the Interstate Compact – an agreement among states that their Electoral College votes would go to the winner of the national popular vote, but only if their total vote would yield a majority vote.  So far 16 states and the District of Columbia have agreed to this Compact.  They represent 205 Electoral College votes. If enough states vote to join the compact to account for 65 more Electoral College votes, we get that commitment.  We are not there yet, though.  And would people abide by that agreement if the stakes were high?

PLAN B: CHANGE THE SENATE

If we can fix the Senate, we have less of a need to fix the Electoral College.  But fixing either the Senate or the Electoral College requires a constitutional amendment (Actually fixing the Senate requires two constitutional amendments.  There is language in the constitution that prohibits change in representation in the Senate without a state’s consent.)

The Founders sought to have the House of Representatives represent the people and the Senate to represent the states.  At the time the constitution was written, Virginia was the largest state with 100,936 people. (Well – not exactly people. That number represents white males over 16 which is the measure I’m using from the 1790 census.) The smallest state, Delaware had 11, 783.  Virginia was more than nine times the size of Delaware and had the same number of Senators.

The Founders were willing to accept that disparity.  Would they have accepted the disparity we now have?  Based on the 2020 census, California, with roughly 36.5 million people is nearly 70 times as large as Wyoming with 580,000 people.

We do not know what the Founders would have thought about such a disparity.  We know that the colonies, with a total non-slave population of almost 3.25 million were unwilling to be governed by Great Britain’s King or Parliament or its population of 8 million people.

If we could have a US Senate where larger states had more senators than smaller ones, we would have a fairer system of governance and we would revise the Electoral college. Here is a plan.

• No state would have more Senators than they have Members of Congress.
• All other states would have 2 Senators with the following exceptions:
• States with between 9 and 12 Members of Congress would have 3 Senators.
• States with between 13 and 19 Members of Congress would have 4 Senators.
• States with between 20 and 29 Members of Congress would have 5 Senators
• States with between 30 and 39 Members of Congress would have 6 Senators
• States with between 40 and 49 Members of Congress would have 7 Senators
• States with between 50 and 59 Members of Congress would have 8 Senators
• States with between 60 and 69 Members of Congress would have 9 Senators
• States with between 70 and 79 Members of Congress would have 10 Senators
• No state would have more than ten times the number of Senators as the smallest state.

Most states would have 1 or 2 Senators under this plan. Still.  It would be hard to persuade people from Wyoming or Arkansas or Nevada, for that matter, that California should have a lot more Senators than they have.  A constitutional amendment (or two) would be extremely hard to achieve.

PLAN C: CHANGE THE HOUSE

Increase the size of the House of Representatives in a way that enhances and accurately reflects the size of the population of states. This is my wife, Marian Solomon Lubinsky’s, response to the impossibility of amending the constitution.  She is right. Expanding the size of the House of Representatives is what we should be working on along with the Interstate Compact.

The Constitution requires that “Representatives …. shall be apportioned among the several States which may be included within this Union, according to their respective Numbers”. There is no requirement that there be 435 seats in the House of Representatives.  That number is governed by statute.  Courts have demanded that the size of Congressional districts be roughly equal.  So far, the courts have not objected when a state with fewer people than an average congressional district gets a single Member of Congress.

In 1929, after reapportionment of districts failed to happen during the 1920s, Congress adopted the Permanent Apportionment Act. The number of seats were intended to be fixed at 435.  And reapportionment was required to go into effect three years after the completion of the census.  This process was tested after Alaska and Hawaii were admitted into the union as states in 1959.  Because each of the new states was eligible for one seat in congress, the number of Members of Congress increased temporarily to 437.  In 1963, after the mandatory reapportionment, the total number of seats was returned to 435.

If Congress were to modify the cap portion on the size of the House of Representatives and begin “the apportionment among the several states” with the smallest state, then Wyoming, with its population of roughly 580,000 would have one Member of Congress, as it does now. That 580,000 would become the standard size for a Congressional District.  A state with 1,160,000 people would have 2 representatives.  And so on – though it might be that a state that was more than half way to getting a second Representative would get that second rep.  So a state with 1.5+ x580,000 or more than 870,000 would get its second representative.

That change would make the House of Representatives more representative of the nation and have an effect on the Electoral College.  Congress would be larger than the current 435 members, diluting the power in Congress and in the Electoral College of the smallest states.  The experiment charted below would yield a Congress of 571 members and an Electoral College of 671 members (674 with 3 Electoral College members from the District of Columbia).

The larger Electoral College would be more likely to reflect the popular vote of the nation. It retains the understanding of the House of Representatives as the people’s house.  The Senate would continue to represent each state equally – even if this expectation is less reasonable than it was when the Constitution was written.  And the United States would have a government that can be more legitimately described as a democracy.

Below is a chart for what the representation in the House would look like and what the Electoral College would look like.

IGNORING PARTISAN IMPLICATIONS

I have not calculated how the Electoral College would go if this plan were adopted.  Make the calculations yourself if you like.