Back to Prindle Institute

What Arguments for the Electoral College Really Show

image of disconnected US states

It is a widely accepted democratic principle that all votes should carry equal power (“One Person, One Vote”). That this is (at least generally) a good principle is less controversial than any attempt to explain why it’s a good principle. If Jeff Bezos proposed that rich people should be able to vote ten million times while everyone else should only be allowed to vote once, everyone would agree this is a bad idea. We might cite different explanations of why it’s a bad idea. We might worry about the well-being of the non-rich people, since politicians would have less reason to care about them. It might seem unfair or disrespectful to everyone else to privilege rich people in this way without a good reason. We might worry that it would make us unfree: if the government can (to some extent) boss people around, and rich people can control the government without our input, it would be like rich people were bossing us around, like they were dictators over the rest of us. We might cite more than one of these explanations, or some other one. The point is that everyone agrees that One Person, One Vote is usually a pretty good principle to follow.

But both the U.S. Senate and the Electoral College violate One Person, One Vote. This is because they give disproportionate power to voters in low-population states. Since all states have two senators regardless of population, California and Wyoming have equal representation in the Senate even though California has about 66 times as many people. Because Senate representation affects Electoral College representation, the Electoral College is similarly biased: compared to Wyoming, California has only about 18 times the electors despite, again, having 66 times the population. Because low-population states tend to be rural, and rural voters tend to be conservative, this biases both the Senate and White House in favor of Republicans: Republicans have controlled the presidency for twelve of the past twenty years despite only winning the popular vote once in that time. Since federal judges are chosen by the president and confirmed by the Senate, the courts also favor Republicans. But keep in mind: the main point here is not about whether it’s good or bad for Republicans to be in charge. It’s instead that our departure from One Person, One Vote really is seriously affecting the government. If we gave Jeff Bezos two votes, that would be bad, but it probably wouldn’t really change anything: his extra vote probably wouldn’t make any difference. But the Senate and Electoral College do make a difference. People who want Republicans to win can still agree that they don’t want them to win like this, by violating One Person, One Vote. And people who want Democrats to win can agree that these institutions would be problematic even if they favored Democrats instead.

Some people want to change the Senate and Electoral College. For instance, the National Popular Vote Interstate Compact would functionally eliminate the Electoral College, and granting statehood to Washington, D.C. would create new Democratic-leaning Senate seats, making the body more representative. But defenders of the status quo suggest we should keep the institutions as they are to prevent American politics being dominated by the residents of populous, urban areas at the cost of rural voters. Joe Seyton at Reason writes that “By preventing the majority from getting its way all the time, the Electoral College ensures… those in high-population states with large cities aren’t the only ones who have a say.” David Harsanyi, also for Reason, says:

“because of our childish propensity to use the word ‘fair,’ I understand that the Electoral College must seem like a relic that undercuts the sacramental notion of ‘one man, one vote’… [But] the Electoral College impels presidents and their political parties to consider all Americans in rhetoric and action. By allowing two senators for both Wyoming… and California… we create more national cohesion. We protect large swaths of the nation from being bullied. We incentivize Washington, D.C.—both the president and the Senate—to craft policy that meets the needs of Colorado as well as New York.”

Tara Ross, in a video for PragerU, says that the Electoral College encourages developing platforms which appeal to the entire country: “If winning were only about getting the most votes, a candidate might concentrate all of his efforts in the biggest cities, or the biggest states. Why would that candidate care about what people in West Virginia, or Iowa, or Montana think?” And Jeff Greenfield, at Politico, writes that the Senate “protects minority interests from majority rule,” something “liberals weren’t always so fearful of.”

According to this argument, the Senate and Electoral College help address an issue related to what the political philosopher Thomas Christiano calls “the problem of persistent minorities.” If a stable bloc emerges which can win elections without needing to compete for members of a certain group, that certain group risks having its voice drowned out. This might seem unfair even when the majority makes otherwise fine decisions. If you and your two friends watch a movie every Saturday, voting on which movie to watch seems fair when a consensus can’t be reached. But if your friends like the same movies as one another, but different movies from you, and they outvote you every single time, that seems less fair. Of course, rural Republicans wouldn’t be permanently locked out of governance without the Senate or Electoral College, and so wouldn’t exactly be persistent minorities. Instead, the Republican party would change its platform to bring new voters into a coalition with these rural voters (and other Republicans) so the party could remain competitive. But the need to attract these new voters means that the rural voters’ interests would receive less priority.

Defenders of the status quo therefore endorse what I’ll call the Minoritarian Principle:

While One Person, One Vote might be good most of the time, we should sometimes depart from it by giving disproportionate power to votes from members of minority groups when this is necessary to protect their sufficiently important interests.

Majoritarianism is rule by the majority, so naturally, minoritarianism is rule by a minority. I’ve called the principle the Minoritarian Principle because it means that a minority of voters can sometimes get their way.

But we can now see the fatal flaw in the pro-status quo argument: no justification is given for applying the Minoritarian Principle only to rural voters. The interests of many different minority groups are threatened in the U.S., and prioritizing rural voters often means deprioritizing members of these other groups. For instance, since rural voters tend to be white, privileging their votes disadvantages people of color. David Leonhardt calculates that the Senate awards .35 seats per million white voters, but only .26 per million Black voters, .25 per million Asian voters, and .19 per million Hispanic voters. Meanwhile, Andrew Gelman and Piere Antoine-Kremp estimate that “whites have 16 percent more power than blacks once the Electoral College is taken into consideration, 28 percent more power than Latinos, and 57 percent more power than those who fall into the ‘other’ category.” This creates exactly the situation defenders of the status quo worry about: Republican politicians can often win elections with minimal support from racial minorities, as when Trump was elected despite getting only eight percent support among Black voters. An unusually candid statement of the racial implications of the status quo came in an interview with Maine’s former Republican governor Paul LePage. He began defending the Electoral College by saying it increases the power of small states like his, but quickly shifted to defending it on the grounds that it increases the power of white people.

Unless the interests of rural voters are at greater risk than the interests of racial minorities, favoring the former at the expense of the latter is unwarranted. But if anything, the interests of people of color are at greater risk. So the Minoritarian Principle really seems to support something like the opposite of the current system. Perhaps the votes of people of color could literally just count for more. Perhaps we could create special Senate seats to be selected by minority voters, mirroring New Zealand’s Māori electorates. Christiano considers “requiring that candidates for elective office receive quotas of votes” from different demographic groups. Many countries currently employ “reserved positions,” where offices or seats must be held by members of certain demographic groups. “Consociationalistsystems built around group power sharing of the sort found in Belgium, Switzerland, or (historically) the Netherlands might provide another source of ideas.

I’m not saying we should implement one of these alternative proposals. There are good reasons to favor One Person, One Vote, too, and maybe those should win. And implementing the alternative proposals is politically impossible anyway. This is the point instead: If we favor One Person, One Vote across the board, obviously we should oppose the Senate and Electoral College. But if, like their defenders, we instead accept the Minoritarian Principle, we should still oppose the Senate and Electoral College. These institutions have effects — like decreasing the power of people of color — which are the opposite of those a reasonable application of the Minoritarian Principle would aim for. So reforming or eliminating these institutions would also be an improvement by the lights of the Minoritarian Principle. So when defenders of the institutions invoke the Minoritarian Principle, this winds up being a red herring. Whether we accept the principle or not, we should oppose the Senate and Electoral College.

Considered Position: Flawed Democracy – Minority Rights

image of red and blue cells making a map of the US

This piece is part of a Considered Position series that reflects on the United States’ claim to being a “flawed democracy.” To see the earlier segments, start here.

Minority Rights

Another area where people often disagree about the nature of democracy is when it comes to minority rights. The Founding Fathers feared mob rule, the “tyranny of the majority,” almost as much as they did actual tyranny by a single despot or monarch. The Founding Fathers were classically educated; many learned Latin and Greek and were inspired by the attitudes of Ancient Greece and Rome. Both cultures used democracy but held cautious attitudes toward it. Plato, for one, heavily critiqued democracy. And the Roman Republic was highly aristocratic. They had a bicameral legislature, one house of which was wholly composed of patricians, the upper class, and one of plebians, the lower class. This was the inspiration for the US system of a Senate elected by State governments and a House popularly elected. In both cases, the government was constructed to limit the potential of mob rule.

Today, the government is critiqued from both sides. On the one hand, there are a number of ways in which minority voices are oppressed in politics. On the other, many people worry that certain protections of political minorities give those minorities undue power. Once again, people agree that minority rights should be protected, but disagree about which minorities and for what reasons.

Before jumping into concrete cases, it will be helpful to consider the different uses of the word “minority” which might otherwise cause confusion. The word “minority” can be used in two senses. A “minority” group can be one that holds the minority of political power. Or it can be a group that represents a minority of the population. Sometimes a group is a minority in both senses, but not always. Women, for example, prior to the 19th Amendment, were in the majority (as they remain today) but had no political power. On the other hand, the ultra-rich compose a tiny minority of the population and yet retain, if not a majority of political power, at least a great deal more than they would have given their share of the population. In a proper democracy, these two definitions would be inseparable. If “one person, one vote” is the principle that governs the allotment of political power, they would have to be. But, as we will see, this is not the case in our democracy.

The Electoral College

With that being said, let us consider one of the most frequently debated institutions in American government, the Electoral College. First, we’ll need to consider what exactly it is, how it was meant to work, and how it has worked in practice. Only then can we consider its value as a political institution and whether we ought to keep it.

The Electoral College is the system by which the United States President is elected. It is also an actual group of people who cast votes for the President and Vice President. This group of people is composed of “electors.” Each state sends a number of electors equal to the number of Congressional representatives they have. This is the number of Senators (always two) plus the number of Representatives (anywhere from one in Alaska to 53 in California). And, of course, DC sends as many electors as does the least populous state, as mentioned before.

Now you may be familiar with the idea that we vote to elect the President. However, this doesn’t have to be the case, and in fact wasn’t the case in some states until the mid-nineteenth century. Most states until 1812 simply had their legislatures appoint electors. State governments have full discretion in determining what electors they send and unless required by state law (as was recently decided by the Supreme Court), electors can vote for whichever candidate they want. A state could legally require their electors to vote in accordance with a coin flip.

While this may sound silly, this system did have a purpose when it was created. Like much of the Constitution, the Electoral College was the result of compromise. People on one side wanted the president to be appointed by the legislature. People on the other side wanted the president to be elected by the people directly. The people who supported the appointment of the president believed that, due to the difficulty in communicating across the country, and so due to how little each voter would know about the candidates, it would be foolish to have the people directly elect the president. It made much more sense for them to elect locals, about whom they would know a great deal more, as representatives. Those elected representatives could then travel, meet the candidates, learn more about them, and vote on the behalf of their constituents.

This purpose was retained in the Electoral College. These electors were free to cast their votes however they wished as it was assumed they might be more familiar with the candidates than the people who had elected them. Nowadays, electors aren’t so free. There are 33 states which require electors to vote in accordance with the state’s popular vote. This is for good reason: people no longer lack access to information that only an elector might be privy to.

Like I said, this system had a purpose when it was created. And there was another purpose the Electoral College had when it was created that no longer holds much weight: the Electoral College increased the power of slave states relative to free ones. How? Well, the number of electors a state gets is based on the number of representatives it has. And that number is based on the population of the state. Except, it hasn’t always been that way. At the time, slaves were not considered people, but property. Slave-owning states worried that they would have diminished political power relative to the states with more free people. So they demanded slaves be counted as people only in determining the population of the state. This was a great hypocrisy and northerners refused. Ultimately, the three-fifths compromise was developed. A slave would count as three-fifths of a person for the purposes of calculating population. But of course, they would have zero-fifths of the rights or voting power of any free man. This compromise gave slave-holding states more power in the House and in determining the president. In fact, only one president of the first five was not a slave-holding Virginian.

So then, the Electoral College was founded to account for eighteenth-century difficulties in communicating across large distances and to prop up the institution of slavery. Given that we now have the internet and have abolished slavery (outside of prisons), why haven’t we gotten rid of it? Many people today advocate for the direct popular election of the president. And this change has a great deal of popular support.

The arguments for these are fairly simple: in a democracy, each person deserves an equal vote. Every official given power should be popularly supported. In several instances, the presidential candidate who won the election was not the one who won the Electoral College and thus the presidency. Most recently, Al Gore garnered 0.5 percent more of the popular vote than George Bush in 2000 and Hillary Clinton got 2.1 percent more than Donald Trump. In fact, it is possible to win the Electoral College with only 23 percent of the popular vote, which would be very undemocratic. This, proponents of abolishing the Electoral College say, is unjust. But, there are a number of decent arguments made in support of the Electoral College. It ought not to be dismissed out of hand. We’ll discuss two of these, one bad, and one better.

A common bad argument in favor of the Electoral College is that it protects us from tyranny. It is supposed to be the “last line of defense.” If the people elect a person utterly unfit for office, or a tyrant, the electors will be justified in voting for someone else. This has never happened. In fact, electors changing their votes have never changed an election’s outcome. And, again, many electors today are prohibited from changing their votes. And even if they were not so restricted, one would have to ask, who gets to be an elector? And why should we think that person knows better than us who should be president. Either electors are themselves elected, in which case their interests will likely align with those who would elect the tyrant, or otherwise they are appointed. And if they are appointed, we must ask again, by whom? Ultimately, either the election is wholly based on the popular will or it is not. And if it is not, then unelected people are deciding our government, a proposition wholly opposed to our national values.

A better argument for the Electoral College concerns minority rights. If you remember, by free population, many slave-holding states were smaller than their free counterparts. Thus, it is possible to say “the Electoral College was created to protect the interests of small states from being overridden by larger ones.” And this is a common argument in defense of the Electoral College. While it isn’t really true in the sense that, counting slaves as people, slave states were larger than free ones, we might still think there is some good reason to protect the interests of small states. Protecting small states’ interests is just a special case of the general principle that we ought to protect the interests of minorities. Here I mean groups with minorities of political power. For example, people who cannot walk are a tiny fraction of the population. It would, however, be unjust not to provide accommodations for people with disabilities. To protect the rights of this minority, Americans with Disabilities Act (1990) was enacted. People have no control over whether they have disabilities. And likewise people have little control over where they live — to leave home is to leave one’s family and to risk one’s employment. In any case, it seems obvious that your interests should not be ignored merely because of where you live.

So does the Electoral College protect minority rights? Are small states’ interests protected in a way that they wouldn’t be under a popular election of the president? In one sense they are: small states are less “ignorable” than they would be under a popular electoral system. This is because even the smallest state has at least three electoral votes. Those 3 votes are a greater share than the total (538) than their population would be compared to the total population. For example, Wyoming has a population of around 580,000, 0.17% of the overall population, but its 3 electoral votes comprise 0.56% of the total. Still, 0.56% isn’t much better than 0.17%. And, as it turns out, small states like Wyoming are totally ignored by politicians’ campaigns even now. Actually, most states, big and small, are totally ignored by politicians’ campaigns. Since 2008, 80 percent of campaign visits occurred in less than 20 percent of the states. The reason stems from something the Founders failed to consider when drafting the Constitution: partisan politics.

We often use the phrase “partisan politics” to refer to how polarized the political parties are, to the fact that members of the two parties share very little ideologically. But the Founders failed to consider something far more fundamental, the existence of political parties themselves. See, George Washington spent a great deal of his farewell address warning against the development of political parties, saying in particular:

“They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community.”

Unfortunately, parties, and in particular a two-party system, are a natural and even mathematical consequence of “winner-take-all” elections. This system of election is the one we use for all our Congressional elections and the one every state (except Maine and Nebraska) uses for allocating electoral votes in Presidential elections. To understand how a two party system and a winner-take-all system naturally go hand-in-hand, consider the following:

In the 1960s, not everyone was happy about desegregation. A significant number of people wanted strict segregation. Some were okay with looser segregation. And some wanted full desegregation. Suppose these three groups had 40 percent, 30 percent, and 30 percent support and each voted for a presidential candidate that supported their view. If they did so, then the strict segregationists would win and segregation would stay. But if those who wanted some desegregation convinced the ones who wanted total desegregation to vote for their candidate, then that candidate would win. The ones who wanted total desegregation wouldn’t have been completely happy but 60 percent of the people would have been at least somewhat happy when only 40 percent would have been happy had each group voted for their own candidate. And, we end up with only two real candidates being fielded. The same goes no matter how many groups there are; they will always make these sorts of compromises until there are two real parties.

“Okay,” you might ask, “but how does segregation relate back to the Electoral College and minority rights?” Well, as I said, electors are decided by winner-take-all elections. You get the same number of electoral votes if you convince 51 percent of a state’s population or 99 percent. There is no incentive to please everyone. Nonetheless, 51 percent can quickly turn to 49 percent. So Presidential candidates very frequently campaign where the margin of victory is small. These are called “swing states” and it is their interests that override the interests of all other states since they are the only ones pandered to by presidential candidates. Other states get little or more frequently no attention. California has the most electoral votes of any state, 55, and yet not a single post-convention campaign event has been held there by a presidential candidate since at least 2008. This minority of states dominates the majority of states.

The Electoral College also oppresses minority rights within each state. If there are two parties, with one getting 51 percent of the votes and the other getting 49, then the one getting 51 percent gets 100 percent of the electoral votes of that state. What this essentially means is that those 49 percent get no representation in deciding the president. The winning party does not have to compromise at all with the losing one. So really, in each state, large minorities of the population are having their interests overridden by the majorities.

Something important here to remember, though, is that these are problems with the Electoral College as it is. If the winner-take-all system were eliminated, there might be some legitimate defenses of the Electoral College. In fact there are a number of potential alternative voting systems. Under such a new system, small states would remain less ignorable than they would be under a popular vote system due to the Electoral College, politicians might consider their interests more closely due to the substantial political minorities in many states, and politicians might be more incentivized to moderate their positions so as to have wider appeal. As a bonus, third parties could obtain significant minorities of the electoral vote, encouraging politicians in the main parties to pay more attention to their interests (because, again the overall presidential election is a winner-take all system given there is only one president so a two-party system will still dominate).

One last point to consider is why people actually defend or oppose the Electoral College. Usually we think that people make decisions based on reasons. That is, they see reasons and then make decisions. But often people make decisions and then come up with reasons to justify their decision after the fact. Or, they are biased in judging reason by their initial preference. This is called motivated reasoning. The sorts of bad defenses of the Electoral College I have considered above seem to fall into this camp. From polls that have been conducted, the actual reason many people support the Electoral College seems much simpler: it seems to make their candidates win more.

Republicans, George Bush and Donald Trump, have won the last two times the Electoral College has disagreed with the popular vote. And after 2016 when Trump was elected, Republicans’ support for the Electoral College skyrocketed. At the same time, of course, Democratic opposition to it also greatly increased as the same poll shows. People, it seems, will preference their political “team” over their actual beliefs about democracy. Whether the Electoral College is more bane or blessing to democracy is an arguable point. But that argument should be one that precedes forming a view, not one that serves to justify it. You might ask yourself “Would I still support/oppose the Electoral College if it meant my party would lose more often, if it meant the policies I supported got enacted less frequently?” In answering this, you might come to understand whether you care more about rights and duties a certain decision respects or about the consequences that decision causes.

Gerrymandering

We have spent a great deal of time talking about presidential elections but much of the political power does not rest with the president. The legislature, Congress, is meant to serve as a check to the president’s power. Unfortunately, there are about as many problems with Congressional elections as there are with presidential elections. The most significant of these is probably gerrymandering. What we do about gerrymandering will be informed partially by how we think we can best protect minority rights. However, it will be equally important to consider whether we (and more importantly the politicians who represent us) value consequences favorable to us or respect for the rights of those besides ourselves more highly.

To discuss gerrymandering, we should first be clear on what gerrymandering is. Generally, states have more than one House Representative. And, since House Representatives are meant to represent the interests of local areas, each representative is elected from a Congressional district. Only people in that district get to vote for that district’s representative.

But, the question arises: how do we decide where the borders of each district are? Well, the first rule governing districts is that they must have at least 30,000 people in them. This rule comes straight from the Constitution. However, in practice districts all have between 500 thousand and 1 million people. That is because, as we will discuss in more depth later, the number of districts is capped at 435 and the population of the US has grown immensely since the Constitution was written. The second rule comes from the 14th amendment which guarantees each citizen “equal protections of the laws.” The Supreme Court in Wesberry v. Sanders (1964) ruled that this clause requires districts in the same state to be as close to equal in size as is “practicable.” The last rule is one the Supreme Court ruled on more recently, in Miller v. Johnson (1995): race cannot be “overriding, predominant force” in the redistricting process. Even with these rules, however, borders can be drawn in very different ways. So long as they follow these rules, state governments otherwise have total discretion in drawing Congressional district borders.

Gerrymandering is the practice of one political party in control of a state government drawing Congressional district borders such that they are more likely to remain in power in future elections. The word itself comes from an actual instance of gerrymandering, though this one was for a state-level senate: in 1812 in Massachusetts, Democratic-Republican Governor Elbridge Gerry approved a new state senate district map, biased in favor of his own party, that was shaped like a salamander. Thus, “Gerry” plus “-mander” became “gerrymander.” Gerry is remembered today because his plan worked. Many more Democratic-Republican state senators were elected even though they weren’t any more popular. So began a long history of politically-biased district maps.

Gerrymandering based on political party is very common nowadays in both Republican and Democratic states. And a vast majority of Americans of both parties agree that it should be stopped. Nonetheless, individual politicians are incentivized to create districts that will allow them to safely stay in office. So, outside of a referendum like they had in Ohio, it is difficult to stop the state government from conducting partisan gerrymandering. Unfortunately, the Supreme Court recently declined to make any restriction on partisan gerrymandering.

How do politicians defend gerrymandering when their constituencies disapprove of it? Well, as David Lewis, a Republican member of the redistricting committee in North Carolina says, “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” Assuredly, Democrats in power, such as in Maryland, would say much the same. And even if you are opposed to partisan gerrymandering in theory, since it is unfair, why would you act against what you believe to the best interest of the nation? This same question was raised before in our discussion of statehood for DC and Puerto Rico. A serious belief in democracy requires a great deal of intellectual humility: it requires you to assume that you don’t know best and that only collectively will we best approximate the right course of action. People who act in opposition to democracy may also be acting in what they believe to be the best interest of the country.

Of course, there are some better reasons for certain kinds of gerrymandering. The best kind of gerrymandering results in representation for a minority group who otherwise would have none. Consider the following: if a state has ten districts and a population that is 90 percent white and 10 percent Black, is it more just to draw district borders such that each district has the same 90/10 demographics as the state as a whole? As we discussed before, under the current winner-takes-all system of Congressional elections this would result in the election of 10 Representatives whose interests would be aligned almost entirely with the majority. Alternatively, should one district be gerrymandered so that it is majority Black, giving the Black minority the chance to have a Representative whose views align with theirs? In this case, gerrymandering leads to better representation for minorities. In fact, this is roughly the argument Supreme Court Justice Ruth Bader Ginsburg made in her dissent to Miller v. Johnson. Racial minorities often share a number of aims, beliefs, and convictions, such that they comprise a “community of interest.” There are also many kinds of non-racial communities of interest, and it might be beneficial to gerrymander districts such that these minority communities are not also always political minorities — so that they do not have their rights to representation continually abridged.

Given the enormous complexity of drawing districts and the myriad political and moral concerns that must be considered, stopping partisan gerrymandering may seem hopeless. And, indeed, it is very difficult to fix. However, some states have tried using independent commissions to draw district maps, and this has worked to make districts more competitive. Making districts competitive is important because when politicians are at risk of losing a future election, they are more likely to pay attention to their constituencies’ changing interests. Others have sought more fundamental changes to the system of electing Representatives. One popular alternative to the present system is “mixed-member proportional representation.” Under this system, voters cast two votes, one for their local constituency, and one for a party “at-large.” This way, communities of interest are respected, but the total number of Representatives from each party is always proportional to the votes cast for that party.

The biggest difficulty in stopping partisan gerrymandering is getting state government politicians, who benefit from gerrymandering, to act against their own self-interest in order to change it. People in some states can petition for a referendum and enact change that way, but the laws around referenda are varied. Even once reform is possible, however, we will have to consider the best way to assure minorities and communities of interest are adequately represented. And, we will have to be honest with ourselves about whether we care more about fairness or about getting political change that we want, even if the means of achieving it are unfair.

Congressional District Sizes

Of course, gerrymandering isn’t the only issue with Congressional elections. In fact, while gerrymandering has garnered a great deal of public attention, its harm to our democratic system pales in comparison to something that sounds most banal: Congressional district sizes.

As I mentioned before, Congressional districts have a few restrictions on their sizes. They must be larger than 30,000 people. And, they must be nearly equal in size to all of the other districts in the same state. But, beyond these Constitutional restrictions, the size of districts is mainly limited by how many districts there are.

For example, because every state must have at least one Representative, and because of the formula Congress uses to apportion the limited number of House seats, districts can have as few as around 500,000 (in Rhode Island) to as many as around 1,000,000 (in Montana). The baseline problem here is that this means a voter in Montana has half the representation, and thus half the power to enact change, that a voter in Rhode Island has. It seems highly undemocratic that some voters get twice the power of others for no other reason than where they live. And, the districts with the least per capita voting power are predominantly rural and western. Of course, the disproportionately large power of small, western, rural states in the Senate may ultimately outweigh this injustice. But, as is often said, two wrongs don’t make a right.

Even disregarding this problem of district sizes, there remains another crisis of representation. In talking about gerrymandering, we considered the importance of communities of interest. It seems beneficial to minority rights broadly if these minority communities enjoy some representation, even if that representation is much less than is afforded to the majority. They, at least, should not be ignorable. The trouble is that it’s very difficult, if not impossible, to create a single community of interest that comprises between 500,000 and 1,000,000 people. You can easily find five people who share pretty much all the same views who live fairly close to each other. And you can probably find tens of thousands of people living near one another who share many of the same views and concerns. All the people near a state-long oil pipeline might be concerned about oil spills, for example.

However, few things can be said to adequately unite many hundreds of thousands of people together sufficiently to call them a “community of interest.” We mentioned before how racial communities are sometimes grouped together this way. And, while racial groups often have some shared concerns (about racism, for example), interests can vary widely within them. Intersectionality, the recognition that people have multiple intersecting identities, means that people’s interests are unlikely to be solely associated with any one identity. And the odds of large groups sharing many intersecting identities decrease the more identities you hope that they share.

I mentioned before in our discussion of gerrymandering that the winner-takes-all system prevents political minorities from having any representation. And I suggested the mixed-member proportional representation system as a potential cure. However, what if I told you that this problem could be fixed with a change to the Constitution that was actually on the Bill of Rights itself and the only part of the proposed Constitution on which George Washington elected to speak?

First consider this question: what is the first amendment to the Constitutions and how many amendments are on the Bill of Rights? Typically, the answers given would be “the one about freedom of speech, press, religion, etc.” and “ten.” However, the original Bill of Rights passed by Congress in 1789 had twelve amendments, not ten. And, the first of these was not what we typically think: rather, believe it or not, the amendment placed first before all the rest was about Congressional district sizes. (For those who are curious, the real second amendment was forgotten about until the 1980s when it was rediscovered by an undergraduate student who researched it for a paper on which he got a C. He campaigned for its passing which occurred in 1992 when it became the 27th amendment. It concerns the prevention of Congressmen raising their own pay without an intervening election.)

This amendment, titled “Article the first” on the original document, has the following text:

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

The original Constitution gave the original 13 states Representatives in a way only vaguely proportional to their populations. After the next census, this amendment would have Congress allocate 1 Representative per state for every 30,000 people. Once a total of 100 Representatives were allocated (with a population of 3 million) new Representatives would be allocated so that each state had 1 Representative for every 40,000 people. This would continue until there were 200 Representatives (with a population of 8 million). However, here begins a mystery which had never been explored until the folks at non-profit Thirty-Thousand.org did so.

If the amendment is followed to the letter, a mathematical contradiction arises. From a population of 8 million to 10 million, there are required to be at least 200 representatives but the number also cannot exceed the population divided by 50,000, a number which would range from 160 at a population of 8 million back up to 200 at population 10 million. In short, the minimum number of representatives is greater than the maximum, an illogical contradiction.

The reason this paradox occurs is that unlike the previous several clauses, the final clause uses “more” instead of “less.” The original House-passed version actually did contain “less” while the Senate-passed version differed substantially. A conference committee changed the word “less” to “more” and this was the version ultimately passed by the entire Congress. The circumstances leading to the addition of a mathematical contradiction in Article the First are quite uncertain with at least one lawsuit alleging this difference to a scrivener’s error. And it is also confusing why Congress passed this amendment and 10 states ratified it without anyone becoming aware of the contradiction. Given that Washington himself advocated a maximum district size of 30,000, this amendment only makes sense if we ignore its illogical alteration by the conference committee.

In fact, even though this amendment was never ratified (it missed the cutoff by a single state at the time), Congress more or less acted like it was for a while. The number of Congressional districts increased roughly in line with the population until the 1820s, when the number of Congressional districts plateaued. It then paradoxically shrank in the late antebellum period. The number continued to grow with the population until it was forced to stop by a Congressional act. The 1911 Apportionment Act capped the number of districts and representatives arbitrarily at 435. At this time, the US population was less than 100 million so each district represented roughly 230 thousand people. By 1929, this change was made permanent with the Permanent Apportionment Act. Both the 1911 and 1929 pieces of legislation were contemporaneously criticized. About the former Representative Edgar Crumpacker of Indiana said this:

“If we make the ratio [of persons per Representative] too large the idea of representation becomes attenuated and less definite. The personal interest of the voter in his representative becomes less important to him, and we may lose something of the vital strength of our representative form of government.”

Crumpacker was thinking about the difficulties of creating communities of interest far before the term was thought up. And later on, Representative William B. Bankhead of Alabama called the latter piece of legislation “the abdication and surrender of the vital fundamental powers vested in the Congress of the United States by the Constitution itself.”

So why did this change actually occur? Well, as the previous source indicates the US House failed to reapportion itself in 1920 due to disagreement between urban and rural representatives. Continuing to increase the number of Representatives in line with population would give the rapidly growing cities more power. Obviously, rural representatives would not approve of giving themselves less power. And, many people in general were opposed to giving the cities, which had large non-white and immigrant population, more influence. The United States was still at this point in history very much a white supremacist state.

Furthermore, as in the gerrymandering case, voting for reform requires a Representative to go against their self-interest. With every new Representative, the power of every Representative is diluted. Supposing that each Representative does actually care about at least most of their constituents, voting to increase the number of Representatives would also require Representatives to vote against the interests of those they represent.

This presents a paradox of sorts. The duty of a Representative is to act in the best interest of her constituency. But, Representatives also seem to have a baseline duty to maximize representation for all citizens. Unfortunately, to serve one duty, they must contradict their other duty. And, given that only one of these duties also serves the Representative’s own interests, say, by maintaining her personal influence over the nation, it is obvious which she will follow.

So, again, we are met with the impossible problem of having to convince politicians to give up power for themselves and to limit their chances of enacting policies they think are for the best. And, unlike with gerrymandering, there is no way to begin a referendum to enact change without consideration to the politicians. Thus, it seems unlikely that a pathway exists to stop this system which intrinsically violates minority rights.

Plus, there is at least some legitimate opposition to enacting something like Article the First. If it were passed (with the final “more” changed to “less”), the US House would go from having 435 members to having over 6,000 members. That is a huge number. It would be larger than any other legislature in the world. One bad argument sometimes made is that there simply aren’t enough chairs in the US House building for that many people. Of course, were there to be 6,000 Representatives we might simply have them stay home in their constituencies and vote remotely as has been allowed for the first time recently due to COVID-19. This would prevent legislators from growing detached from their constituencies. However, the argument goes, this would also make it difficult for Representatives to work together on legislation. People could communicate remotely, but as we have seen during the pandemic, it’s just not quite the same.

Another argument against such a drastic increase is that people are already frustrated with having “too much government” and would rather shrink the size of government. This is an appeal to the popular will. Unfortunately, polling does not bear this out. While Congress is generally unpopular, more people support expanding the House than shrinking it, especially when historical context is provided about how each Representative used to represent less than 60,000 people compared to today’s 700,000. Of course, more people support keeping it the same than increasing it or shrinking it; the status quo has its own inertia.

One other argument suggests that a large number of Representatives would increase anonymity and thus corruption. However, others argue oppositely that corruption and lobbying would occur much less frequently due to the increased cost of corrupting the process. See, if some business only needs to buy 10 votes to get the majority of the 435 representatives for their legislation to pass, and each vote costs $100,000 dollars, corrupting the process only costs $1 million. If the cost per legislator remains the same but the number of legislators increases by a factor of 10, say, to at least 4,350, then so will the number of votes they need to buy, and thus the overall cost. Corruption would be much more expensive so it might occur less frequently even though less oversight is given to each individual Representative. More likely, these opposing factors would counteract each other and corruption would remain at the same level it is now.

In a similar vein, gerrymandering may become much harder to do as districts become smaller. Lawyer and political analyst Sean Trende makes this argument in a publication for the University of Virginia’s Center for Politics. He writes:

“Think of it this way: If there are 100 residents in a state with 100 congressional districts, there is no gerrymandering possible. If there are 50 congressional districts, it isn’t impossible, but it is still difficult. If, however, there are only five districts, a legislator will probably be able to draw the lines to cluster a disproportionate number of Republicans in a single district, leaving Democrats overrepresented in the remaining districts.”

Even this argument, however, has to go up against our general intuition that 6,000 people is just too many. This is probably the biggest hurdle to any substantive change to the apportionment process. And, of course, not everyone supports the ratio of one representative to every 50,000 people. Some argue in favor of a number of representatives equal to the cube root of the population. Others use statistics to calculate the number of Representatives that would result in the minimal disparity between population and power. In any case, however, we are just stupefied by tradition. It seems like there have always been 435 Representatives even though there haven’t. And, in fact, only one large nation, India, boasts a legislature with a lower number of Representatives per population. No other OECD nation has a larger ratio of citizens to representatives. Britain, that tyrannical monarchy from which our fledgling democracy broke away, now has nearly double the amount of popularly elected legislators that we have and nearly quadruple the total number of legislators. America, then, is exceptional, but in a very negative way.

America has a minority representation problem. There are a number of ways to fix this, but all of them require significant changes to our electoral system. Whether we eliminate the Electoral College, drastically alter our system of Representative election, greatly increase the total number of Representatives, or simply reform any of these systems, we will have to go up against the force of tradition and government powers that are compelled by legitimate duties and by self-interest to oppose change. Something must be done as the lack of representation for great swathes of the population in our democracy constitutes a crisis. How we deal with that crisis will require a great deal of discussion, particularly about our values and the values we demand our elected leaders hold. The correct approach is quite uncertain. Nonetheless, if we hold the value, central to democracy, that minorities ought not always to be totally dominated by the majority, we must enact some change of some form soon.

Continue to Part III

To Keep or Not to Keep? The US Electoral College and Presidential Representativeness

image of US map of electoral votes by state

“One person, one vote” and “Not my President!” These mantras underlie calls for election reform in the United States. They are pressed urgently now regarding the Electoral College and its role in selecting the President of the United States (POTUS) as the 2020 election approaches. Solutions posed by critics range from reformation, to circumvention, to abolition. To many the Electoral College is patently undemocratic because it does incorrectly represent the choice of the national constituency. This view is officially championed by numerous candidates for the 2020 Democratic Primary: Cory Booker, Elizabeth Warren, Jay Inslee, Julian Castro, Kirsten Gillibrand, Marianne Williamson, Pete Buttigieg, and Robert “Beto” O’Rourke.

During 2019 several states passed and signed legislation to join the National Popular Vote Interstate Compact: Colorado, Delaware, New Mexico, and Oregon. (Additionally, the measure passed both chambers of Nevada’s state house but was vetoed by Gov. Steve Sisolak.) These states join 11 others, and the District of Columbia, in pledging to assign their electoral votes to whichever candidate wins the national popular vote. This would effectively circumvent the Electoral College while leaving it in place. However, the compact only takes effect once enough states have signed up: i.e., enough states to contribute the 270 out of 538 electoral votes needed to win election.

How does the Electoral College work? Each state in the US is allotted a certain number of electoral votes, based on their representation in Congress (House seats plus Senate seats). Electoral votes are cast by individuals nominated to the College of Electors, whose votes directly determine which candidate becomes president. Most states give all their electoral votes to whichever candidate secures a simple majority (51%) of their popular vote. Maine and Nebraska are the exceptions, assigning electoral votes on the basis of results in each of their US House districts: a candidate receives one vote for each district they win, and the candidate who wins the statewide popular vote receives 2 votes.

Advocates for each position regarding the Electoral College claim their stance best represents the choice of voters, and that their opponents’ views over- or underrepresent some group or another. Supporters of the Electoral College argue it prevents urban areas from dominating elections, or that it accurately represents the federal structure of the US government. Critics of the Electoral College consider it unacceptable that a candidate can win election who does not have the support of a majority of the national constituency. They also argue the Electoral College inflates the voting power for citizens of certain states, and deflates the power of other states’ citizens, going against the “one person, one vote” principle.

Disagreements about the Electoral College are about who the POTUS represents. That is, it’s about what representation is and who the represented constituency is. Hanna Pitkin’s 1967 The Concept of Representation provides an important touchstone for a thoughtful discussion of representation. She elaborates four facets of representation: Formalistic, Symbolic, Descriptive, and Substantive. (See the Stanford Encyclopedia of Philosophy article on Political Representation.)

Superficially, the disagreement between detractors and supporters of the Electoral College solely concerns Pitkin’s formalistic aspect; the debate hinges on questions pertaining to the political process and its ability to confer legitimacy. We ask whether the election was conducted according to existing rules and the spirit of the law. Setting aside concerns about election tampering/interference, some claim President Trump’s 2016 election was “illegitimate” because he received significantly less of the national popular vote than Hillary Clinton. However the formalistic aspect of representation doesn’t fully capture the sense of illegitimacy pressed here: President Trump was elected according to the established protocol of the Electoral College system.

An alternative explanation is available in Pitkin’s symbolic and descriptive aspects of representation. When people denounce President Trump as “not their president”, they often mean to say that they object to what he stands for, or claim that he fails to resemble the voting public physically or ideologically. Such people would presumably accept, and feel represented by, a candidate who won the popular vote. Hence when critics of the Electoral College argue that the outcomes of US presidential elections are undemocratic, and don’t represent the will of US citizens, they mean it in the symbolic and descriptive senses. (This article will not discuss Pitkin’s substantive aspect. It involves an officeholder’s performance of their duties, which can only be evaluated after elections.)

While advocates for a national popular vote see US citizens at-large as the represented constituency, advocates for the Electoral College see US states as the represented constituency. This isn’t an irrelevant distinction. Consider a hypothetical situation in which the NPV is in effect. If the citizens of Oregon, which is in the NPV, vote unanimously in favor of one candidate but that candidate loses the national popular vote then all of that state’s electoral votes go to a candidate for whom not a single person in Oregon voted. The NPV, and any national popular vote scheme, recognizes no difference between Oregon voters and the voters of any other state—everyone is just a US voter. However the Electoral College system does distinguish between voters on the basis of their state of residence. 

Opponents of the Electoral College understand this, and argue that these distinctions diminish the voting power of some citizens relative to others. This effect is not a necessary consequence of the Electoral College—or at least not the effect’s magnitude. Rather it’s a direct effect of the cap on the number of voting representatives in the US House at 435 (Apportionment Act of 1911). This also caps the number of electors and has led to the average number of citizens represented by a House member (and hence the number of individual votes subsumed by an electoral vote) to increase over time, though differently for different states. The inflation/deflation of voting power Electoral College critics highlight is a direct consequence of the fixed number of House representatives. 

Increasing the number of Representatives would ameliorate the symbolic and descriptive representativeness problems of the Electoral College, while also increasing the representativeness of the House. Further it can be done by legislation in Congress rather than a Constitutional amendment as would be required to abolish or reform the Electoral College. Finally it preserves the distinction between voters of different states, respecting the federal structure of the US government. This consideration will not appeal to many opponents of the Electoral College. However, short of full abolition, increasing the total number of electoral votes by increasing the size of the House addresses representativeness problems, and does so without leaving open possibilities of bizarre, and objectionable, situations such as the hypothetical Oregon case above. The current Electoral College is malfunctioning, and the best ways to deal with it are complete abolition or substantive reform. The NPV does neither, merely walking around a broken machine without fixing it or removing it—leaving it to belch an occasional cloud of toxic smoke.


This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of our discussion questions, check out the Educational Resources page.

The National Popular Vote Bill: Innovative Solution or End Run around the Constitution?

A sign directing people to a voting area

Donald Trump won the 2016 presidential election with 306 Electoral College votes.  He became the President of the United States despite the fact that more people voted for Hillary Clinton.  Clinton won the popular vote by over 2.8 million votes.  This result revived a familiar debate—should we abolish the Electoral College?  At this point, advocates for a change to the system acknowledge that it is unlikely that the change will come about via an amendment to the Constitution.  As a result, lawmakers have put their creativity to the test.  

Continue reading “The National Popular Vote Bill: Innovative Solution or End Run around the Constitution?”

Reconsidering the Electoral College

In the early hours of the morning on November 9th, 2016, it became clear that Donald Trump would be the next President of the United States.  Though vote counts within many contentious states were close, he won the Electoral College handily—with Michigan still outstanding, Trump received 290 Electoral College votes and Clinton received 228.  Despite his Electoral College victory, Trump appears to have lost the popular vote.  This is the second time that this has happened in the 21st century.  In 2000, Al Gore won the popular vote while George W. Bush won the Electoral College.

Continue reading “Reconsidering the Electoral College”

Immorality in the Electoral College — for Good?

The Electoral College has always been one of the more controversial aspects of the US’s election system. Because it was arranged as a compromise between a parliamentary system and a popular vote, the system has remained obscure, with pressure placed primarily on swing states to solidify the results of an election. Confidence in the Electoral College has fluctuated with elections, most dramatically in 2000, when Al Gore won the popular vote but did not received the necessary delegates to gain the presidency.

Continue reading “Immorality in the Electoral College — for Good?”