I’ve been thinking about this issue since the ‘60s, when I wrote my first (unpublished) novel, about the mess of an inconclusive electoral vote when a president-elect dies. I’ve also toyed with the idea of a counterfactual history wherein Chief Justice Rehnquist dies before Bush v. Gore is decided. How would that have played out? Disastrous political chaos.
So the electoral college system does have its bugs. And of course, in that 2000 election, we did see the anomaly of the popular vote loser winning the electoral vote. It had happened before; and could well have happened this year. All this has promoted calls for reform.
We should remember that the electoral college was set up for a reason, and it was not to thwart democracy. It was part of the constitution’s compromise between large and small states, giving the latter a little extra mojo. It still serves that function – with no electoral college, no presidential candidate would concern himself with Nevada. It also serves to provide unambiguous outcomes in close elections. Just imagine if, with no electoral college, we had a national vote as close as Florida’s was in 2000 – thus, fighting over every ballot in every state.
Still it’s reasonable to want the electoral and popular vote outcomes to match. But a constitutional amendment changing the system is probably a non-starter, because it would require ratification by 38 states, and small ones (like Nevada) would be emasculating themselves. However, a constitutional amendment actually isn’t needed.
Here’s one path: each state’s electoral votes are not required to be cast as a block. Maine and Nebraska already divide some of their electoral votes among congressional districts. Other states joining them would reduce the chances for a popular vote loser being elected.
Some have also advocated states passing laws simply giving their electoral votes to the national popular vote champ. This too entails no constitutional change. And effectively abolishing the electoral college this way would not require every state signing up. In fact, it would only take one: California.
Look at it this way: with such a California law, could anyone win the electoral vote without the popular vote? Well, yes, Bush did exactly that in 2000, winning with neither the popular vote nor California. But that was by the tiniest of margins; not the proverbial “inside straight,” but an inside straight flush. A fluke.
No presidential campaign would sensibly try to thread that needle. Instead, they would switch to straight-out efforts for popular votes anywhere, to bag California’s 55 electorals. Get those, and the national popular vote margin should supply the rest of an electoral college majority. Thus, no more “swing states;” the national popular vote would become the whole game.
The beauty of this plan is that it would keep the electoral college as a fail-safe in the event of an inconclusive popular vote. California’s law could say that in such a case, its electoral vote would go to California’s popular vote winner.
I’m talking California here only to show the plan’s simplicity. In reality, California would never enact such a law. It’s solidly controlled by Democrats; why would they give Republicans a chance at its electoral votes? But the same objective could be achieved by a group of other states, with a large enough combined electoral vote. They would have to be swing states; none where one party dominates would want to give the other party a shot at its electoral votes. However, swing states like Ohio would be loath to give up their importance as swing states. So in the end, this beautiful plan is probably as chimerical as any other.
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