Remarks delivered orally at Harvard Law School, October 19, 2019

The Electoral College system – I mean not only the words in Article II, Section 1 of the Constitution that say state constitutions and laws determine the selection of electors, but the web of state laws and political party practices that define how the United States picks presidents – contributes mightily to the worst ills of the American democracy.

This system causes the two major parties pay little to no attention to more than 80% of the voters, located in 40 or more states, during the general election for president.

The system creates irresistible incentives for the two major parties to divide the nation regionally and demographically by appealing to race, gender, and ethnicity as the markers of party affiliation.

The system does nothing to force the two parties and their leaders to compromise on solutions to collective problems that a huge majority of people want and desperately need.

 The system opens the door for dangerously unqualified people to become president without winning a majority or plurality of support from citizens.

A huge majority of Americans prefer a system in which the presidential candidates in the general election seek everyone’s vote and the one who gets the most always becomes president – but a small number of elected officials in a small number of states block that desire from being reflected in changes in state law.

The system was conceived in the sin of slavery and has always thwarted progress toward democracy. In our time its particular evils put the survival of the Republic at risk by leading an increasing number of Americans to give up on our system of government while tolerating authoritarianism to a degree unprecedented in our history.

And despite the well-examined complexities to altering anything in the Constitution, there are numerous practical ways to improve this system.

The starting point is to define the essence of the problem.  

The bad, radical attribute of the existing presidential election system is not that it allocates electors in a way that is not proportional to the population. The principle of equality across all voters in all states entrances many theorists who would like one person-one vote on a national level to become the defining characteristic of selecting the national executive. This concern elevates the ideal over the practical. Unquestionably, the current system gives a voter in thinly populated Wyoming more influence in choosing the president than a voter in big-as-a-country California or previously-a-country Texas. But really so what? This factor does not cause anyone involved in the general presidential election or in any White House to pay unusual, or probably any, attention to voters in Wyoming in comparison to voters in other states. It is not the reason that Republicans give short shrift to California and Democrats for their part write off Texas in the general election.

The problem instead is the winner-take-all method that exists in all states except Nebraska and Maine. The other 48 states and the District of Columbia award all electors to the plurality winner. Because the outcome is predictable in more than 40 states, this system causes the two major parties to take for granted and ignore in the general election the voters in states with more than 80% of the population. Instead, states that randomly happen to be closely divided by party preference decide the outcome.

Napoleon said that if you want to understand people, you must see the world the way they saw it when they were 20 years old. I was 20 in 1968, and in that year Richard Nixon beat Hubert Humphrey (George Wallace finished third) by about a half-million votes in the irrelevant national contest, but smashed him the electoral count by 301 against 191.

The election felt like a national contest. The two major party candidates competed closely in states as far flung as Alaska and Delaware, California and New Jersey. True, a majority of voters were taken more or less for granted, but the number of electors in states that were close-run affairs totaled 223, 41% of the total. Here’s the list:

States where margin of victory was less than 5 percentage points (223 electoral votes):

1. Missouri, 1.13%

2. Texas, 1.27%

3. Maryland, 1.64%

4. Washington, 2.11%

5. New Jersey, 2.13%

6. Ohio, 2.28%

7. Alaska, 2.64%

8. Illinois, 2.92% (tipping point state)

9. California, 3.08%

10. Delaware, 3.51%

11. Pennsylvania, 3.57%

12. Wisconsin, 3.62%

13. Tennessee, 3.83%

In the 2016 election, Hillary Clinton beat Donald Trump by about three million votes in the purposeless national count, but lost the electoral count by 304 to 227. But this election never felt national. Even while the saturating media reached everyone with seemingly minute-by-minute news, the general election resembled a report on Big Ten football contests.

The two campaigns fought to margins of less than 5% in about the same number of states as in 1968, 11 plus the Omaha district, but these had only 133 electors, 90 less than in 1968. Instead of composing more than 40% of electors, the swing states were just less than 25%. Moreover, 56 of these 133 were in the Great Lakes states of Minnesota, Wisconsin, Michigan and Pennsylvania. These Midwestern states, with their older, whiter, and more evangelical Christian populations than the rest of the country, were the decisive battlegrounds.

States where the margin of victory was under 1% (50 electoral votes; 46 won by Trump, 4 by Clinton):

1. Michigan, 0.23% – 16

2. New Hampshire, 0.37% – 4

3. Pennsylvania, 0.72% – 20 (tipping point state, including 2 faithless GOP electors)

4. Wisconsin, 0.77% – 10 (tipping point state, excluding the 2 faithless GOP electors)

States/districts where the margin of victory was between 1% and 5% (83 electoral votes; 56 won by Trump, 27 by Clinton):

1. Florida, 1.20% – 29

2. Minnesota, 1.52% – 10

3. Nebraska's 2nd Congressional District, 2.24% – 1

4. Nevada, 2.42% – 6

5. Maine, 2.96% – 2

6. Arizona, 3.55% – 11

7. North Carolina, 3.66% – 15

8. Colorado, 4.91% – 9

Indeed, this chart exaggerates the number of states that were seriously in play during the two months of the campaign. A more practically accurate count would be only six, the ones where the result was a margin under two percent: States with a population of less than 60 million, less than 18% of the national total.

In 1958 Isaac Asimov wrote a short story called “Franchise,” in which Norman Muller of Bloomington, Indiana is determined to be ideally representative of the entire populace. As “Citizen of the Year” he answers questions put to him by a computer that in turn selects the chief executive that the data suggested likely best to serve the nation. Asimov set this story fifty years into the future, 2008. What we have now is not as good a system, because the battleground state populaces are not a representative sample. Here is a polling project that tracks swing voter attitudes – unnecessary if the national vote dictated the outcome of the election.(In addition, according to current polling, most Americans do not believe the current chief executive is the best person to hold the presidency.) 

Asimov wrote the story to warn of the danger that computerization would supplant democracy as the American way of choosing leaders. Instead, demography has created a situation where computerization enables both parties to exclude most Americans from meaningful participation in democracy.

What has happened in the half-century between 1968 and now is that Americans have steadily moved to concentrate in a small number of states. In part because people have chosen to live where they find like-minded citizens, most of the heavily populated states are politically dominated by a single party.

Here is a list of the top ten most populated states in the country:

1. California (Population: 39,747,267)

2. Texas (Population: 29,087,070)

3. Florida (Population: 21,646,155)

4. New York (Population: 19,491,339)

5. Pennsylvania (Population: 12,813,969)

6. Illinois (Population: 12,700,381)

7. Ohio (Population: 11,718,568)

8. Georgia (Population: 10,627,767)

9. North Carolina (Population: 10,497,741)

10. Michigan (Population: 10,020,472)

In the meantime, the low-growth states are also typically dominated by a single party. One reason is that they each have small numbers of electors, and the runner-up party has a very low probability of prevailing in a winner-take-all contest for electors. The game is not worth the candle for the Republican Party in Vermont or the Democratic Party in Oklahoma in the general election. So each lets the other win without making much effort to achieve balance.

The combination of urbanization-suburbanization in a few states and party dominance in most inevitably is the reduction in the number of swing state electors. It’s important to note the number of swing states has oscillated around a dozen over the last fifty years, but the number of electors (and hence population) in these states has fallen significantly. Therefore the composition of the battlegrounds in reality and appearance does not give us an election that involves enough voters.

Admittedly, the winner-take-all system has always caused the major political parties to ignore huge swathes of voters. However, in the case of big wins, like Barack Obama in 2008, or true landslides like Reagan in 1984 the fact that the parties pay no attention to most voters is not noticed. But in any reasonably close election, the left-out problem is inescapably obvious. Moreover, the problem is much worse in current times.

 In 2020 Donald Trump will probably lose the national popular vote as he did in 2016. Current polls suggest he will run behind the Democratic nominee by five to eight million in the pointless national tally. But he has a good chance of winning in the Electoral College by choosing the hop skip and jump strategy that gave him the 2016 victory.

His strategy will be to count on, and take for granted, the typically reliable Republican base of 230 electors, hop to a Florida win of 29 electors, skip to a Wisconsin victory for 10, and jump to prevail in Omaha for a single elector that produces the necessary 270.

The president presumably targeted Joe Biden for defeat in the Democratic primaries because he thinks Biden would win Wisconsin whereas he believes he can defeat Elizabeth Warren or another nominee in Wisconsin. This explains the Ukraine story.

Demographics is destiny. Americans are not about to flee urban and suburban precincts and head to the emptying states. The Internet produced the death of distance but social networks, business opportunity and industry concentration have greatly enhanced the magnetism of a small number of geographic locations. As this next map shows, the economically big states are like big countries, and the rest are of comparatively negligible size. Wyoming’s economy is on par with Tunisia, and neither is about to get big.

Whether the topic is democracy in the United States or a world order, attention must be paid to forgotten people. The current electoral system, like international governance, does not solve that problem. On a comparative basis, most states are small in population and economic opportunity, and the election system causes not only these small states but also most of the big states to be ignored in the most important election – not just most important for the United States but also most important for the global future of democracy.

There are no benefits to this system, save for the fact that a handful of elected officials in swing states may enjoy outsized attention from both campaigns every four years. The odds of a swing state governor being selected for the vice presidency or getting a cabinet post promise are higher than for similarly situated people in non-battleground states. This is hardly a justification for keeping the system unchanged.

There are at least three distinct deleterious consequences to the presidential selection system’s focus on a diminishing fraction of voters in a few states.

First, the policy preferences of the vast majority of Americans are rejected by Republicans and not adequately pursued by Democrats. These include but are not limited to the desire of most people to see the government lead a victorious battle against climate change, against widening income and wealth inequality, against unaffordable and inadequate health care and against xenophobia and racism. Instead of responding to the wishes of most people, the campaigns and candidates address the desires (and inflame the division) of those in swing states. When the population of closely contested states is less than a quarter of the whole, it is no surprise that the fourth are not representative of the entirety. Moreover, all politics truly is local, as House Speaker Tip O’Neill famously said. Perforce, the swing-state voters care more about their local issues than national issues.

 Second, by taking for granted the outcome in 40 or more states, the two parties do not compete vigorously to drive turnout in those states. As a result participation in democracy in the United States is lower than in most democracies. If the parties competed for every vote everywhere turnout would go up by 10% to 30%, or between 15 to 45 million. The additional voters would more accurately reflect the demographics of the population. Te electorate would be less white and younger. It’s likely that the newer voters would have more faith in our democracy if they participated and their votes mattered to the outcome.

Third, the system creates a huge incentive for the Republican Party to present itself as the party of whites and males, and further as the champion of evangelical white Protestants. That is because by mirroring these constituencies the Republicans are appealing to large constituencies in the swing states of the Great Lakes. (Between 20% and 30% of the likely voters in those states are evangelical Protestant whites, and exit polls in 2016 suggested 80% of white evangelicals voted for the Republican nominee.) The system also appears to reward the Democrats for cultivating a base more heavily weighted toward women and minorities than the total population, and arguably that lures Democrats into ignoring the economic and social concerns of whites in swing states.

The system, in short, has excluded most Americans from full participation in the choice of the president. It has skewed the parties’ policies and popular bases in ways that have exacerbated the social divisions that elections always seek to exploit but governance discovers are obstacles to useful collective action. And the system is racist and sexist in its effects.

 If you agree with me so far, you will agree that the goal of reform is to force the two parties to compete nationally to win a national vote count.

A Constitutional Amendment is obviously difficult because of the supermajority requirements in both Congress and among states in the ratification process. But to pass a useful Amendment it is not necessary that it weight every popular vote equally. It could dictate that every state allocate electors proportionally to the first decimal point, and only the top two parties get electors. Harvard’s Larry Lessig has proposed exactly this meritorious idea. It should be introduced in Congress forthwith. The goal is to get a negotiation going that would attract votes from small state representatives and senators. That system would cause the parties to compete everywhere for the extra tenths of electors, preserve the inequitable weighting of electoral votes for low population states, and still produce 270 or more electors in almost all circumstances.

 The way to guarantee that the top two parties get electors might be ranked choice voting. The two existing parties might well agree on this measure if for no other than self-preservation.

The National Popular Vote Interstate Compact of course is a reform that obviously would force the parties to compete everywhere for every vote. They would raise more money, and spend along a rising marginal cost curve weighted by likelihood of persuasion until the predictable total reached a clear majority. They would ignore geographic location. (Probably this would be a big boom to local radio, broadcast TV and newspapers in small towns, by the way.)

But the Compact’s problem goes into effect only when it bonds states with 270 electors. It is unlikely to do so unless a few swing or red states switch from winner-take-all to the Compact.

 In all states, between two thirds and three quarters of the electorate tell pollsters that they think the national vote winner should always be president. Professional politicians in swing states, however, tend to like the attention that comes their way from the two parties and their deep pocketed donors every four years. So Democrats and Republicans in elected office in swing states can be inclined to disregard the will of their voters and to oppose the Compact.

In swing and red states, Republicans often hold at least one chamber in the legislature or the governorship and these professional politicians correctly understand that their party’s largely white male base is not sufficient to win a national vote. Their party would have to change to win nationally. Change threatens re-election of incumbents. So they are reluctant to pass the Compact.  

There are two ways to overcome these problems. First, put the Compact on the ballot. This is possible in 26 states. Ideal targets include at least Michigan, Missouri, Ohio, Arizona, Utah, and Montana. If the Compact were on the ballot in Ohio in the general election held on November 5, 2019 it would probably pass. The same is true if the Compact were on the ballot in Michigan in November 2020.

The reason this has not happened yet is lack of money for these ballot contests. The cost for getting on the ballot in all five states is about $15 million, and the cost for waging an effective campaign for winning would be about another $50 million in total. The aggregate of $65 million is about two percent of the total that will be spent on the 2020 election.

This number, $65 million, is also less than the amount raised by the Bernie Sanders campaign for president in 2019.

The Compact is much more likely to win a ballot vote in any state than Senator Sanders is to win the nomination of a party to which he does not belong.

The other way the Compact can be passed is to wait for a Democratic landslide to sweep Democratic majorities into control of a surprising number of state legislatures and governorships. Then, push the Compact through before the pendulum heads in the other direction. This is the low cost strategy.

(Also the Republican Party, like the Whigs in the ante-bellum era, might face extinction, and then to change its positions and base. In the past Republicans have supported a national vote method. This is a possible corollary of the Democratic landslide scenario.)

Either way the Compact goes into effect by bonding states with 270 electors, it will face legal challenges funded by those who think that a national vote would lead to the election of presidents who did not serve their special interests. I believe the fate of such challenges depends as much or more on the facts presented as it does on the ingenuity of the legal arguments or the discoveries of legal historians about the intent of the Framers.

 If the Compact has barely obtained the 270 electors and lacks the direct mandate of any voters, then the Republican-tilted federal judiciary will feel empowered to side with their party and find a way to invalidate the Compact. But if the reform garners a big majority of electors and also shows voting strength by winning in a ballot contest in a few states, then I think the judiciary will be much more likely to accept the result.

I also believe that if one election were held in which the parties competed for the national vote and the people all over the country reveled in their new found participation, I think the Supreme Court would be loath to end the new system.

There are at least two ways that the parties could be forced to compete for a national victory without enactment of the Compact.

The first is called pairing. If a state sure to vote Democratic and a state sure to vote Republican each appointed electors who promised to vote for the national winner, then depending on the likely outcome of the election and the number of electors affected by this move, the parties might decide to compete for the national victory.

For example, if New York made this move contingent on Texas taking the same step, the resulting combination of 67 electors promising to vote for the national winner is big enough to cause both parties to seek a national victory.

 As another example, with the hop, skip and jump strategy I outlined earlier the incumbent president is not likely to win more than a bare majority of electors. As it happens, in both North Dakota and the District of Columbia approximately 15,000 signatures suffice to put on the ballot next year a measure that enacts this contingent pairing. It’s not a compact. If both passed, they would be effective for November 2020.

If the incumbent president could not get the three electors of North Dakota merely by winning the plurality in that state, then he would have no clear path to electoral victory. He and his party would have to give serious consideration to pursuing a national vote victory, and of course the Democratic nominee would do the same.

 A second move would be for a single reliable Republican state to appoint electors who promised to vote for the national candidate. Based on the statistical work of my nonprofit, every reliable Republican elector bound to vote for the national winner instead of the state winner reduces the probability of an electoral win for the Republican nominee by two percent unless that Republican wins the national vote. For example, if Ohio’s 18 electors were to vote for the national vote winner instead of the Ohio winner, then the probability of Donald Trump winning the Electoral College would drop by 36% percentage points. If you think it’s fifty-fifty now, that probability would fall to 14%.

But finally, the most important way to boost the chances of the Compact or any national vote reform in any battle through the judiciary is to make it very well known that the Electoral College winner take all system now and all too often in American history has been an instrument of political supremacy for whites and against blacks, Hispanics, and immigrants.

And it also must be understood generally that this same system has produced an overzealous reliance on identity politics as opposed to advocating policies good for the large, troubled middle class.

A widespread understanding of the pernicious effects of the current system for both parties, I believe, will cause the judiciary not to overturn any reforms that move the country to using the national vote for choosing the president.

I believe in the better angels of Americans. Reform of the election process would let that belief triumph over the dark vision of humanity that the current times daily seem to make real and the electoral system sadly encourages.