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Tinkering with the Electoral College vote

By Marion Edwyn Harrison
web posted September 6, 2004

Earlier this year I briefly recounted the history, mission and practical effect of the Electoral College, characterizing it for many as a ho-hum/so-what subject. The subject soon may become less ho-hum/so-what.

Let's recall that as the Electoral College was intended to function, and historically has functioned, the Presidential candidate receiving the highest number of popular votes within a State (and since 1961, Constitutional Amendment XXIII, also within the District of Columbia) receives the full electoral vote for that State. The electoral vote ranges from three each out of the States of Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont and Wyoming, and the District of Columbia, to 55 out of California. The Article I, § 2 Constitutional calculation, except for the District of Columbia, is that the electoral vote equals two (because each State has two United States Senators) plus the number of the State's Representatives in Congress, aka Members of Congress or Congressmen/women.

Thus, pollsters, politicians and interested citizenry alike concentrate more upon "swing" States than solid party States. Even within a swing State Presidential campaigning may concentrate disproportionately upon swing areas of the State. Pennsylvania, for example, is evaluated by many as a swing State. Within Pennsylvania, the swing vote predominantly is suburban Philadelphia, suburban Pittsburgh and some other places other than its two major cities.

To many of us there is enduring wisdom in the Founding Fathers' concept of federalism and national union. For the moment we'll leave the subject of the Electoral College and its role to lawyers, political scientists and others who write about it -- e.g., in the past several years alone, the Cumberland, Harvard, North Carolina, Notre Dame, Nova, Oregon, Vanderbilt and William & Mary Law Reviews have published on the subject.

Maine and Nebraska laws, Maine Revised Statutes Annotated, Title 21-A, § 9-805.2; Nebraska Statutes, Art 7, § 32-714, provide that their electoral vote does not go winner-take-all but rather is apportioned. Thus, Maine with four votes, Nebraska with five, as a matter of law could divide their electoral votes. Two from each would be cast for the candidate receiving a plurality of popular vote statewide. The other two (Maine) or three (Nebraska) would be cast for the candidate receiving a plurality within a congressional district. So the Maine electoral vote could be 4-0 or 3-1, the Nebraska 5-0, 4-1 or 3-2.

What's brewing in the Rockies? Colorado, apparently with considerably more than the required 67,000 or so signatures, likely will have a referendum proposal on the November 2, 2004 ballot, to apportion electoral votes a la Maine and Nebraska -- and to do it retroactively! Any such Colorado change in law almost surely would divide the Colorado electoral vote because, unlike Maine (two Democrats) and Nebraska (three Republicans), Colorado's Representatives in Congress are not of one party (two Democrats, five Republicans), so the congressional-district majorities almost surely would differ.

If the Colorado initiative were to pass and to be sustained judicially, the time bomb would explode! The nine Colorado electoral votes would be split and that split could determine the election if, like 1876 and 2000, the electoral vote were sufficiently close, confused or contested. (Incidentally, the 1876 Election makes the 2000 look like child's play. A fascinating read: Rehnquist, Centennial Crisis [Knopf, 2004]).

Less dramatic, there also could be an inherent unfairness in the result. In congressional districts in States in which the State popular vote went one way and that of a particular district the other way, the voters in the dissenting district would be denied the value of their vote.

Amid the furor and emotion of a Presidential campaign and only a short Congressional session remaining, it would be imprudent to attempt now to evolve a solution to the theoretical -- and probably real -- unfairness arising from the proposed Colorado change. However, the subject screams for attention in 2005 and thereafter.

If national requirements might be changed, at the least look for many in the populous states to want to abolish the Electoral College or, alternatively, delete its 102 votes arising from the existence of two Senators per State and the extra two District of Columbia votes (because the system arithmetically weighs a small-State prevailing vote higher than a large-State prevailing vote). However, as we have discussed before in these columns, enactment of a controversial Constitutional amendment would be time-consuming and onerous, probably impossible.

Meantime, pollsters and other prognosticators, take heed! Who knows what time bomb will explode in the Rockies!

Marion Edwyn Harrison is President of, and Counsel for, the Free Congress Foundation.

Other related articles: (open in a new window)

  • In defense of the Electoral College by Robert S. Sargent, Jr. (September 6, 2004)
    Robert S. Sargent, Jr. argues that getting rid of the Electoral College will spell the end of the political system as Americans know it and that's not a good thing
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