We can make U.S. elections more democratic without eliminating the Electoral College | Opinion

On the eve of what may be one of the most consequential presidential elections in American history, because of the Electoral College, the next president will be decided by a handful of states. A vote for former President Donald Trump in California or for Vice President Kamala Harris in Texas will not matter in the least in deciding the election.

The Electoral College was a terrible idea in 1787 when the Constitution was written and it is an awful way of choosing the president today.

Political realities make it impossible to amend the Constitution to eliminate the Electoral College. But there is a fix that could make a difference: For future presidential elections, Congress could require that every state allocate its electors proportionate to the outcome of the election in the state. This would make sure that every vote counts and lessen the likelihood that the candidate who loses the popular vote will become president.

In large part, the Electoral College reflected the distrust of majority rule on the part of the framers of the Constitution. Although it is an embarrassment for a country committed to democracy, there is no doubt that the appeal of the Electoral College was that it left it to the elites — not the people in the country — to choose the president.

In Federalist No. 68, Alexander Hamilton explained that the “immediate election (of the president) should be made by men most capable of analyzing the qualities adapted to the station.” He wrote: A “small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.”

Also, small states strongly favored the Electoral College because it gave them much greater influence than they would have in the direct election of the president. In fact, today, in theory, states with only 23% of the country’s population can choose the president.

But we often choose to forget that the Electoral College was also very much a product of the compromises concerning slavery at the core of the Constitution’s drafting and ratification. Prior to considering the method of choosing the president, Constitutional Convention delegates agreed to the “three-fifth clause,” the provision in Article I of the Constitution that counted enslaved individuals as three-fifths of a person for the purpose of determining population for allocating seats in the House of Representatives.

The Electoral College provided a huge benefit for states with slavery: electors would be allocated based on seats in Congress and enslaved persons counted towards that. If the president were directly elected by the voters, voters in the North would outnumber Southern voters because the South’s half-million slaves could not vote. The Electoral College meant that each southern state could count its enslaved individuals as three-fifths of a person in its share of votes in the Electoral College.

This was explicitly understood and expressed at the Constitutional Convention. As Yale law professor Akhil Reed Amar has repeatedly pointed out, the Electoral College “was originally much more about slavery than about a big-state, small-state balance.” This, in itself, should make us deeply uncomfortable with the Electoral College.

Most fundamentally, the Electoral College is inconsistent with the core constitutional value of democratic governance. Never in the 20th Century did the loser of the popular vote become president, but it has happened twice in this century — in 2000 and 2016. And it almost happened in 2004 and 2020. If just 42,921 votes had changed in Arizona, Georgia and Wisconsin, Trump would have been reelected president despite losing the popular election by almost seven million votes.

Unfortunately, eliminating the Electoral College is not realistic because of the difficulty of amending the Constitution. It takes two-thirds of Congress to pass an amendment and then approval of three-fourths of the states to ratify it. There are too many states that benefit from it for that to happen.

But there is a way to lessen the chance of the Electoral College choosing a president who lost the popular vote: end winner-take-all. In all states except Nebraska and Maine, the candidate who wins the popular vote in a state — even by the narrowest margin — gets all of the electoral votes from that state. This greatly increases the chances of the Electoral College choosing a president who lost the popular vote.

Winner-take-all in allocating electoral votes is not required by the Constitution or federal law. It is left to each state to decide. Nebraska and Maine allocate electoral votes by congressional district, with the elector for each congressional district voting for the candidate who got the majority of the votes there and the remaining electors chosen statewide.

States, however, won’t end winner-take-all on their own. The solution must come at the federal level.

There is a strong argument that winner-take-all is unconstitutional because it effectively nullifies votes. But if courts won’t declare it unconstitutional, Congress can adopt a law requiring that every state allocate its electors by the votes in some manner proportionate to the popular vote.

As we face the November 5 election, it is a perfect time to see that our presidential election system is broken and to resolve to fix it for the future.