There Are Many Ways to Reform the Electoral College Without Repealing It

So much ink, both digital and otherwise, has been spilled since the election debating the merits of the Electoral College that I won’t bother rehashing old arguments here, beyond simply stating that I believe the institution is an ingenious way of furthering the goals of federalism, separation of powers, and the equality of all people and states that are at the very heart of the Constitution. But what I do want to do is briefly make the case that, for all the liberals’ talk of repealing the Electoral College, there are a number of ways to reform the system without violating either the Constitution itself or the Framers’ original intent.

It’s first worth looking at the relevant sections of the Constitution that establish the Electoral College. Article II, Section 1, Clause 2:

“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.” (Emphasis added.)

And Article II, Section 1, Clause 4:

“The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

The key is that every single state has the discretion, under the Constitution, to award electoral votes in whatever way that state sees fit. The complaints from liberals today (other than whining that the system is racist and Hillary won the popular vote) seems to be that in nearly all of the major swing states, Trump won by only a point or less, and yet won all of the electoral votes from those states. For instance, Trump won Pennsylvania by just over one percentage point—and yet won all twenty of the state’s votes in the Electoral College.

But there’s no requirement that states use a winner-take-all system. Nebraska and Maine are currently the only two states that don’t, awarding two votes to the statewide winner, and an additional vote to the winner of each of their Congressional districts (Nebraska split its votes in 2008, giving one vote from the Second District to Barack Obama, and Maine similarly gave one vote to Donald Trump this year). Republicans proposed that very system for Pennsylvania several years ago, back when the state was still considered an integral part of the “Blue Wall”, but Democrats quickly shot it down.

Or if that system isn’t to liberals liking, they could try a different kind of proportional system, where the number of electors a candidate wins in a given state directly relates to the percentage of the vote they receive in that state. This is a favored method of awarding delegates in both parties’ presidential primaries—for example, in the Iowa Republican caucuses, Ted Cruz won narrowly and received eight delegates. Donald Trump and Marco Rubio were close behind, and each earned seven delegates, and so on down to Jeb Bush’s one delegate. What’s to stop the adoption of a similar system for the general election?

The only real limits to the methods of reforming the Electoral College are the Constitution (states can’t restrict voting to just men or just women) and imagination. And there are a multitude of potential changes that could be made that I haven’t discussed here and are just waiting for their time to shine (although I imagine that the party currently pushing for a national popular vote would not embrace the notion of state legislatures selecting electors without any public vote at all, although that too is both allowed under the Constitution and has historical precedent).

I personally am a fan of the current winner-take-all system. As I said, it strengthens federalism, makes campaigning logistically easier, and gives focus to more local issues that otherwise wouldn’t receive a great deal of attention (think ethanol in Iowa). But states are the laboratories of democracy. Be creative! There are plenty of options to reform the Electoral College without blowing up the whole Constitution.