12/11/16: Another test for the Electoral College

This op-ed appeared in The Virginian-Pilot on the date shown.

WITH THE Electoral College vote just days away, the spotlight remains trained on a part of the process routinely ignored between presidential contests. Calls to abolish the Electoral College are mostly political knee-jerk reactions that fail to consider just how difficult it is to amend our Constitution. Still, there are some thoughtful discussions going on about how it can be changed.

Perhaps the most difficult part of all of this is the lack of understanding of how things work. As an elector, I have received many identical emails, urging me to “honor the popular vote.” That is certainly the way I will be voting, but not for the reason the email senders think.

Our presidential elections are not a national election; instead, we essentially hold separate state contests, the results of which are combined to give us the national totals. Only the date of the election is uniform, set by law as “the Tuesday next after the first Monday in the month of November.” Each state (plus Washington, D.C.) has the responsibility to conduct elections.

As long as the rules do not conflict with federal law or the Constitution, the states (and the District) are free to conduct elections as they see fit.

This is why some states have early voting — and Virginia does not. (Virginia has absentee voting but only if a voter meets one of 19 approved reasons.) This is why voter ID laws vary by state, each with different rules. Virginia’s voter ID law is currently subject to a court challenge. So far, the law has been upheld, mainly because a voter can obtain a free identification card from the local registrar. In other states, that is not the case. Obtaining the requisite identification can be a tortuous and expensive prospect.

The states, then, can decide how to allocate their Electoral College votes. Except for two, states award all their Electoral College votes to the winner of the popular vote.

Maine and Nebraska are the exception. Both have adopted what is known as the congressional district method in which two electoral votes are allocated to the winner of the popular vote and one to the popular vote winner in each congressional district. (Recall that, except for the District, the number of electoral votes in each state is equal to its representation in Congress: one for each member of the House plus two, as each state has two senators. The District, via the 23rd Amendment, is awarded three votes — a number equal to that of the least populous state.)

The results by each of the 435 congressional districts for last month’s election are not yet available. However, an application of those rules to the 2012 election reveals that Mitt Romney would have received 68 more electoral votes, enough for him to have been elected president.

Legislation has already been submitted for consideration by the Virginia General Assembly that would allocate Virginia’s electoral votes using the congressional district method. Had that method been in effect for the 2012 election, Virginia would have awarded 7 of its electoral votes to Romney, instead of all 13 to President Barack Obama.

The flaw in the congressional district method is that it amplifies the effects of partisan gerrymandering, which essentially packs voters of one party — the one not drawing the lines — into as few districts as possible. Had this been in effect in every state in 2012, Romney would have been elected president despite losing the national popular vote by nearly 5 million votes and the Virginia popular vote by about 150,000.

Another possibility for allocating electoral votes is to do so proportionally, based on the popular vote. Had this been in effect in 2012, Romney would have picked up 49 electoral votes. That would have been an insufficient number to garner a win, but the overall totals would have more closely mirrored Obama’s overall 5 percentage point win. One electoral vote would have been allocated to the Libertarian candidate. Virginia would have allocated five of its votes to Romney under this method.

With most of the 2016 vote totals certified, estimates are that Hillary Clinton would have received 270 electoral votes to Donald Trump’s 267, with one vote allocated to the Libertarian candidate, Gary Johnson. In Virginia, Clinton would have been awarded seven votes, with six to Trump. In each case, the vote more clearly matches that of the margin of victory compared to the popular vote.

The case for proportional popular vote allocation is a strong one. It argues that the winner-take-all system is unconstitutional under the equal protection clause of the 14th Amendment and the principle of “one person, one vote.”

It has been 16 years since we had a serious conversation about the Electoral College and the allocation of its votes. This is not a conversation that can be held after an election: it needs to be before the next election. In the next couple of years, it is imperative that voters remain engaged on this issue and hold their state legislators accountable for appropriate changes.