OPINION: Is It Time To Abolish The Electoral College?

"The Electoral College has failed."

Looking back at the 2016 election, many Americans are left asking, "How is it that, for the second time in the last five presidential elections, the candidate who received the most votes lost the election?" 

The answer is simple — the Electoral College has failed. 

This notion is by no means novel. On the contrary, according to the Harvard Journal on Legislation, more legislation has been proposed to change the Electoral College than any other provision in the constitution. Most recently, the Electoral College came under attack after the 2000 presidential election in which George W. Bush defeated Al Gore by an electoral vote margin of 271-267 despite Bush losing the popular vote by more than 500,000 votes. In the aftermath of that election, many lawmakers called for a constitutional amendment to abandon the Electoral College in favor of a popular vote. Among them, ironically, was then-Senator Hillary Clinton. 

Nevertheless, Clinton now finds herself as the second presidential candidate in the last five elections to win the popular vote but lose the election on account of the Electoral College. As of the publication of this article, CNN reports that Hillary Clinton has received more than 2 million more votes than Donald Trump. Notably, this is almost quadruple the popular vote margin in 2000. But the electoral vote differential of 74 (as compared to 4 in 2000) makes this election seem like a blowout. In other words, the electoral college was far less in touch with the will of the American people in 2016.  

How is it that the Electoral College arrives at a result so incongruous with the popular vote? To somewhat oversimplify, "electors" in the Electoral College are apportioned by state, with each state receiving an elector for each of its representatives and senators. Because all states have two senators (and thus 2 electors), regardless of population, less populous states have proportionally more electors. Vermont, for example, has three electors for its 625,741 residents (i.e., one for every 208,530 residents) while California has 55 electors for its 37,253,956 residents (i.e., one for every 677,345 residents) (as per the 2010 census). In other words, all votes are not created equal

To compound the problem of vote inequality, 48 states currently use a winner-take-all approach in which the candidate with the most votes receives all the electors from that state, irrespective of the margin of victory. If a candidate loses several small states by a narrow margin and wins other larger states in a landslide, it is easy to see how it is possible for a candidate to win the popular vote but lose the election. 

Moreover, the winner-take-all-approach disenfranchises millions of registered voters across the country. A Republican in New York and a Democrat in Texas will likely go their entire life without ever having a say in who becomes president, simply because a candidate from their party will never win their state given the winner-take-all format. This not only disenfranchises Republicans in blue states and Democrats in red ones, it discourages voter turnout from both members of both parties. A voter who is a significant minority in her state may well conclude that spending an hour (or three) going to a local polling station to vote would be a futile exercise because her party's candidate is extremely unlikely to succeed. Similarly, a voter who is in the significant majority in her state may conclude that her candidate is so likely to succeed that she need not vote. Given our current system, these are both perfectly rational responses. 

To be sure, these intrastate minority voters are not strictly speaking "disenfranchised," as they are not deprived of the right to vote. But I submit they are being deprived of a vote that counts. It seems absurd to have the fate of our nation decided by voters in the same several "swing states" over and over again. It goes against the quintessential democratic ideal of "One Person, One Vote." 

Every American deserves the right to an equal vote that counts

So what alternatives do we really have? One option would be to keep the Electoral College but award each state's electoral votes proportionally based on the percentage of the vote a candidate receives. Abolishing the winner-take-all approach would solve the problem of discounting intrastate minorities. But because a state's electors are not strictly based on population, the problem of vote inequality would remain. 

A second alternative would be to abolish the Electoral College entirely and implement a national popular vote, in which all registered voters vote for the candidate of their choice and the candidate with the most votes wins. In this system, all votes are equal and every vote counts, irrespective of the state of the voter. 

Seems simple enough. But critics argue that a popular vote would increase the number of plurality presidencies, where the candidate who wins receives only a plurality of the votes and is actually opposed by the majority of the electorate. While this concern is not entirely unfounded, it could easily be mitigated by requiring that a candidate attains a minimum percentage of the popular vote in order to be named president (just as we currently require a minimum number of electoral votes). 

In the end, it is time for us to acknowledge that the phenomenon by which a candidate wins the popular vote but loses the election is more than a theoretical possibility or a statistical anomaly. We the people of the United States deserve better than a system that has failed to arrive at the correct result in our country's highest election two out of the last five times. It is time for America to graduate from the Electoral College. 

Jordan Reisch is a student at Harvard Law School. Prior to law school, Jordan earned his B.A. in Legal Studies and Sociology from the University of Wisconsin-Madison. Upon graduation, he plans to return home to New York to pursue a career in litigation.

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