A Feasible Reform

Each state already has the constitutional power to require that candidates win a majority of the popular vote to receive all of the state’s electoral votes. Each state could adopt the kind of runoff that New Hampshire used in the past, or instant runoff voting. There is no need for a multistate compact. If only two or three states had used runoffs, or instant runoff voting, in 2016—for example, Florida and Michigan, or the three Rust Belt states of Michigan, Wisconsin, and Pennsylvania—and if Clinton had won those runoffs, then she would have been president. In the future, it might be a Republican candidate who prevails in runoffs in pivotal states but would lose using plurality winner-take-all. States with ballot initiatives can use them to require majority rule for appointing electors as long as they leave the specific details to legislation.

The Jeffersonian Electoral College in the Twenty-First Century

The 2016 election is, at a minimum, problematic from a Jeffersonian perspective, like 1992, and may have been another systemic malfunction, like 2000. Donald Trump received 107 of his 304 electoral votes in states where he won less than 50 percent of the popular vote—failing to achieve the kind of compound majority-of-majorities consistent with the Jeffersonian vision of how the system should work. 2016 illustrates the system’s inability to handle third-party and independent candidates, like Gary Johnson and Jill Stein, an inability caused by the addition of plurality winner-take-all in the Jacksonian era. It is unknowable whether Trump or Hillary Clinton would have won runoffs in the three pivotal Rust Belt states of Michigan, Wisconsin, and Pennsylvania. But if Clinton had won runoffs there (and in the states where she was only a plurality winner), then she would have won the Electoral College with an appropriately Jeffersonian majority-of-majorities.

The Jeffersonian Electoral College in the Nineteenth Century

The Jeffersonian Electoral College performed as expected until, after the rise of Andrew Jackson, plurality winner-take-all became the prevailing method among states for appointing electors. Even then, the Jeffersonian Electoral College has usually operated consistently with the compound version of majority rule that the Jeffersonians had in mind. Using a mathematical measure, one can identify which elections clearly comply with the Jeffersonian conception of compound majority rule and which, by contrast, require further analysis to confirm their conformity to majoritarian principles. Undertaking this analysis, only two elections in nineteenth century—1844 and 1884—clearly contravene the Jeffersonian expectation for how the system was supposed to work. Of the two, the so-called accident of 1844 was hugely consequential for the rest of American history: the winner, James Polk, took the nation to war against Mexico in order to expand territory, particularly for slavery, according to his vision of Manifest Destiny.

The Electoral College of 1803

The congressional debates in 1803 that led to the adoption of the redesigned Electoral College in the Twelfth Amendment were far more extensive than the debates on the Electoral College in the Constitutional Convention of 1787. The 1803 debates were also deeply philosophical, rethinking the appropriate nature of republicanism and federalism in America after a dozen years of experience, including the development of intense two-party electoral competition. The debates unambiguously show that the Jeffersonians, who controlled both chambers of Congress with over two-thirds supermajorities, wanted the redesigned Electoral College to be premised on majority rule. The version of majority rule reflected in the redesigned Electoral College is a compound majority-of-majorities, the idea being that presidents would win a majority of Electoral College votes based on support from majorities within the states providing those electoral votes. Leading Jeffersonians participating in these debates included Senator John Taylor of Virginia.

The First Four Elections

By the time the Jeffersonians redesigned the Electoral College in 1803, they had the experience of four elections, the equivalent of experiencing the elections of 2004 through 2016. During these four elections, the states experimented with different methods for appointing electors. Most common was direct legislative appointment of electors. Some states used district-based systems in which the voters in a district chose an elector. Only a few states held statewide elections to choose all of a state’s electors. By 1796 two-party competition had developed between Federalists and Jeffersonians, and states used methods of appointing electors that would favor the majority party in each state. Massachusetts and New Hampshire explicitly required that an elector receive a majority of votes to be appointed; otherwise, a runoff was necessary for appointment. New Hampshire experimented with both popular and legislative runoffs, while Massachusetts only used legislative runoffs.

Introduction

THE ELECTORAL COLLEGE system that governs presidential elections today was designed for competitive races between the candidates of two opposing political parties. Think of Jefferson versus Adams in 1800. Or Eisenhower versus Stevenson twice in the 1950s. Or Obama’s two campaigns, first against McCain in 2008, and then against Romney in 2012....

Conclusion

Election College reform should be considered in the context of overall concerns about American democracy. Civic culture is essential, as is strengthening democratic institutions. While the United States must address other institutional weaknesses, including gerrymandering, the power of the presidency requires urgent attention to the current deficiency of the Electoral College. The problem is that plurality winner-take-all permits the kind of accident that occurred in 1844, where the winner is not the candidate preferred by a majority of voters in enough states for an Electoral College majority. Insofar as this kind of accident may have happened again in 2016, recognizing this institutional problem requires a different analysis and solution than if a majority of Americans want to elect a president with anti-democratic tendencies. Currently, there is a mismatch between America’s expectation of two-party competition and the multicandidate reality of contemporary presidential elections. Majority rule is necessary to realign reality and expectations.

An Exploration of Alternatives

A constitutional amendment to replace the Electoral College is not feasible, at least for the foreseeable future. The National Popular Vote Interstate Compact plan, as a method of nullifying the Electoral College without a constitutional amendment, is a seriously flawed idea for several reasons, the most significant of which is that it would award the presidency to a plurality winner of the national popular vote. Thus, if there were a three-way split in the popular vote—for example, 43 percent, 42 percent, 15 percent—the compact would award the presidency to the candidate with 43 percent even though 57 percent of the electorate strongly opposed that candidate. The fear that an independent candidate could cause Trump’s re-election even when roughly 60 percent of voters oppose this, because the opposition is split among two (or more) candidates, applies equally to the existing system and the compact. Litigation is unlikely to eliminate plurality winner-take-all. States must act.

A Recommitment to Majority Rule

States should adopt a majority-rule requirement for participating in the Electoral College, meaning specifically that no state should award all its Electoral College votes to any candidate who fails to receive a majority of the state’s popular vote. There are a variety of ways that states can satisfy this majority-rule requirement. One option is to hold a runoff after the November election if no candidate receives a majority of the popular vote. Another option is to hold a preliminary vote in advance of the November election, perhaps on or around Labor Day, so that only two candidates appear on the November ballot. A third option would be to adopt instant runoff voting, which is a species of ranked-choice balloting that permits a runoff to be conducted simultaneously with the initial vote. A proportional system, which divided a state’s electoral votes among candidates, would also comply with the majority-rule requirement.

The Jeffersonian Electoral College in the Twentieth Century

For most of the twentieth century, including the 80-year period between 1912 and 1992, the existence of third-party or independent candidates did not prevent the Electoral College from producing majoritarian results consistent with the expectations of its Jeffersonian architects for how two-party competition was supposed to work. 1912 was anomalous for its three-way split among two Republican presidents, one incumbent and one former, running against the Democratic nominee; but its outcome was not clearly different from what the Jeffersonian system, operating properly, would have produced. 1992 involved another three-way split—among Bush, Clinton, and Perot—with a result that is uncertain from a Jeffersonian perspective, since it is debatable what the outcome would have been if there had been runoffs in the states to see which candidate was preferred by a majority. The century ended with an election, 2000, in which the system clearly malfunctioned; Nader’s presence masked Gore’s majority.