The Congressional District Method

One of the persisting oddities of the United States’ political system is the Electoral College, which is an representative body that exists only to elect the President of the United States. Each state has a number of electors equal to its combined congressional representation in the House of Representatives and Senate, and the District of Columbia also has three electors of its own. To be elected president without throwing the contest into the House, a candidate must receive a majority vote of the electors.

This system is established in Article II, Section 2, Clause 2 of the U.S. Constitution:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The intent of the founders was that the Electoral College would be an elected body something like the House. The idea was that communities would choose a locally-trusted representative to use their best judgement to cast a vote for president. Those representatives would gather in the state capitols to cast their ballots and transmit them to Washington. In Federalist #68, Alexander Hamilton wrote that, “A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite [to choose a president].”

As a compromise, it was left to the states to decide how electors would be appointed. Most held the district-by-district elections that the founders envisioned, but some chose appointment by the state legislature.

If you lived in a state with elected electors, your ballot would have the names of the elector candidates, and you would choose those you thought would be most likely to choose a good president. The names of the presidential candidates would not appear on your ballot. Elector candidates might express a preference for one presidential candidate or another, but it was up to you to know what that preference was (if you cared). And it was always possible that electors could change their votes when they gathered with the other electors from their state and perhaps debated the merits of the various candidates.

This system reflects how the founders attempted to insulate our political system from direct action by the people, primarily on the (well-founded) assumption that the masses would be uninformed and prone to short-term thinking. They recognized the sovereignty of the people, and wanted to give the people a way to direct their government, but they included the filter of deliberation by trusted representatives. Only the House of Representatives and the Electoral College were meant to be composed of people directly elected by the people. The Senate, president, and Supreme Court were all to be appointed indirectly by other elected officials.

Our national preferences in the centuries since have shifted much more in favor of direct election, largely because the people are now much better educated and have at least the potential to become informed and overcome short-term thinking. We see this shift most clearly in the makeup of the Senate. Between the adoption of the U.S. Constitution in 1789 and the addition of the Seventeenth Amendment in 1913, more than half of the states changed their laws so that the state legislature was required to appoint the winners of popular votes to the Senate, effectively emulating the direct election of senators. In 1913, the Seventeenth Amendment took effect and required direct election of all future senators by the people of their states.

But we have not amended the U.S. Constitution to provide for the direct election of the president. The Electoral College and its indirect system for selecting presidents is still in place, albeit in a modified and somewhat-hidden form that would be quite foreign to the founders.

The states have all adopted some form of a ‘general ticket’ system, in which citizens seem to be voting for presidential candidates (whose names appear on the ballot) but are actually electing a usually-hidden ‘ticket’ of electors who have pledged to support that candidate in the Electoral College. In all but two states, this is done under a winner-take-all system. So, using Virginia as an example, if former Secretary of State Hillary Clinton (D) wins the most Virginian votes for president next week—even if only one vote more than Trump—then all thirteen of Virginia’s Electoral College seats will be filled with electors who have pledged to vote for Clinton.

Although the states have attempted to veil our presidential election process in the guise of direct election, it is not. Because we are still using the Electoral College system behind the scenes, there is always the potential for strange and unrepresentative results.

Let’s imagine an outcome that would result in an unrepresentative Electoral College. For the sake of simplicity, imagine that all states use a winner-take-all system, and Clinton beats Donald Trump (R) by two points (51-49%) in every state. This means that Clinton would win the Electoral College by 538-0 votes. Forty-nine percent of the voters wanted Trump, but that half of the country was entirely unrepresented in the Electoral College vote. This is an extreme and unlikely example, but we have seen less extreme oddities. In 2000, then-Governor George W. Bush (R-TX) beat then-Vice President Al Gore (D) in the Electoral College by 271-266, even though Gore had beaten Bush by about a half-point in the popular vote.

The simplest way to reform the Electoral College would be to eliminate it and switch to a popular vote system. We can amend the U.S. Constitution like we did when we established the direct election of senators. Although I tend to oppose the direct election of senators (because the Senate is supposed to represent the sovereign state governments and so should be selected by those governments), I tend to support the popular election of the president. The Electoral College is an unnecessary complication, and the benefits it was thought to provide at the beginning—insulation from the whims of uneducated people—are largely moot at this point. First of all, uneducated people tend to stay home. Second, the ‘general ticket’ system has already made it so that the Electoral College cannot function as any kind of deliberative body.

There is a way we can improve the Electoral College in the mean time without the hassle of a constitutional amendment, and we should seriously consider it—especially since an amendment does not seem to be forthcoming. Remember how I said that all but two states use a winner-take-all system for appointing electors? Well, the other two states—Maine and Nebraska—use the congressional district method. This is a better (though still imperfect) system, and all of the other states should adopt it.

Let’s use Virginia as an example again, and a scenario where Clinton wins the state 51-49%. Under the current winner-take-all system, Clinton would receive all of Virginia’s thirteen electors, and forty-nine percent of the state’s voters would be unrepresented in the Electoral College.

But let’s imagine that Virginia switches to the congressional district method. Because Clinton won the statewide vote in this example, she is awarded two electors up-front (those that parallel the state’s two seats in the Senate). The remaining eleven electors are awarded according to the winners of each of Virginia’s eleven congressional districts. Because Virginia’s districts are somewhat ‘gerrymandered’ to benefit the Republicans, I think a plausible outcome in a close race like our example is that Trump wins six districts and Clinton wins five. So in the end, Clinton gets seven electors and Trump gets six . . . which, in percentage terms, is a breakdown of about 54-46%, which is pretty close to the 51-49% breakdown of the electorate.

Obviously it isn’t perfect. In the Virginia example I’m using, Clinton loses one or two electors to ‘gerrymandering,’ or the drawing of congressional districts to benefit one party or the other. If she lost one more, she would not have held a majority of electors in the state despite having won the Virginia popular vote. Though, even then, the outcome would still be in closer proportion to the actual vote than it would be under the winner-take-all system. The allotment of the two statewide electors helps to blunt the impact of ‘gerrymandering,’ but will not necessarily eliminate it, especially in states that have particularly egregious examples.

There will also be a lot of political difficulty in getting this method adopted. If Virginia, and only Virginia, switched systems, then Clinton (in our example) goes from thirteen down to seven electors from the state. If the Virginia General Assembly proposed this, Democrats would claim that it was just a shameless effort by Republicans to hurt Democratic presidential candidates, and would fight it vehemently in the legislature and in the public square.

This is why I propose we do it in every state. If one state adopts it, it is likely to help one party and hurt the other. But if we do it nationwide, it will not have that kind of partisan effect.

Here’s why. Take a look at Georgia, which is usually a solid Republican win in presidential elections. If Trump wins Georgia 51-49%, he gets all of Georgia’s sixteen electors. Again, nearly half of the state would be unrepresented in the Electoral College. If Georgia switched to the congressional district method, Clinton would win as many as five electors across the state. So if Virginia and Georgia both switched systems simultaneously, we would have a much more fair allotment of electors, but there would be little change in the total breakdown of the Electoral College.

For every state ‘gerrymandered’ in favor of the Republicans, there is another ‘gerrymandered’ for the Democrats. For every state that narrowly goes for Democrats in presidential contests (in which Republicans would benefit under the congressional district method), there is another state that narrowly goes for Republicans (in which Democrats would benefit from the switch). So this could be done incrementally through thoughtful interstate and inter-party compromise. Pair up roughly-equal states (like Virginia and Georgia) that cut in opposite directions, and time them to switch simultaneously. You could even include an ‘out’ in the legislation itself to ensure that it only takes effect as long as it does in the other state too.

And this could be done nationwide with enough interstate cooperation. We tend to forget that states have the ability to enact national policy on their own without involving the federal government . . . if they can manage to come to an agreement on their own. For example, the states coordinated the United States Numbered Highway System, and they continue to coordinate it via the American Association of State Highway and Transportation Officials (AASHTO). The federal government has no real say in how it operates . . . it has a non-voting associate membership in AASHTO, and that is all.

Maine and Nebraska have been an example of how this can work. While we wait for an amendment to enact direct election of the president, let’s go ahead and get moving on this. If we’re going to have an Electoral College, let’s at least try to make it representative of the voters it serves.

Scott Bradford has been putting his opinions on his website since 1995—before most people knew what a website was. He has been a professional web developer in the public- and private-sector for over twenty years. He is an independent constitutional conservative who believes in human rights and limited government, and a Catholic Christian whose beliefs are summarized in the Nicene Creed. He holds a bachelor’s degree in Public Administration from George Mason University. He loves Pink Floyd and can play the bass guitar . . . sort-of. He’s a husband, pet lover, amateur radio operator, and classic AMC/Jeep enthusiast.