The Constitution was ratified 231 years ago, making the United States one of the oldest modern democracies in the world. Along the way, we have tweaked and refined our system by expanding voting rights, delegating more responsibility to the electorate and eliminating unforeseen quirks. The gradual evolution of our institutions has enabled our democracy to endure and thrive for centuries, with our constitutional safeguards affording an enviable degree of stability. But today, our core tenet of fair democratic representation is quietly eroding, and further institutional adaptation is necessary to preserve the vitality of American democracy.
The Electoral College is the most obvious area for reform, and the prospect of such reform has been widely debated since former Secretary of State Hillary Clinton was defeated in the 2016 presidential election despite winning the popular vote by nearly three million votes. The popular vote winner has lost the Electoral College five times, but two of these were atypical circumstances: the four-way election of 1824, which was decided by Congress, and the corrupt election of 1876. The Electoral College had never awarded victory to the popular vote loser in a clean, two-way race – until recently. Now, two of the past five elections have been won by the popular vote loser, and statisticians predict the trend could continue in future elections.
This trend is alarming, but after 2016, many on the right have rushed to the defense of the current system. Conservative commentators have peddled myths that the Electoral College was deliberately created as a anti-majoritarian institution, purposefully designed to ensure small-state voters a voice in the presidential elections.
This historical retelling is novel, but grossly inaccurate. The Electoral College was created as a compromise between the direct election of the president and letting Congress choose the president. The founders were wary of the populace’s ability to rationally choose a president and designed the Electoral College as a mechanism to keep the presidency a safe distance from the passions and whims of the general public – Alexander Hamilton explained the rationale in Federalist 68. The general public would choose electors, and these electors would choose the president. The Founders failed to foresee that electors would preemptively pledge to vote for a certain candidate, and as a result, we are left with an oddly indirect way of electing presidents.
Historical inaccuracies aside, the Electoral College is not needed to give small states a voice.
On the contrary, the Electoral College currently dilutes the voices of voters who live in larger states and essentially ignores the voices of voters in uncompetitive states. The reality is that the Electoral College is a relic from an era when presidents were intended to be selected, rather than elected, and its continued usage defies the ideal of one person, one vote. If the nation’s leader is to represent the will of the nation, a transition to a popular vote is imperative.
Moreover, faithless electors pose a oft-overlooked threat to the integrity of presidential elections. Due to the Electoral College, Election Day technically only determines electors, and the election is not officially determined until the electors vote. In 2016, several of these electors went rogue and refused to vote for the candidate they had promised to vote for. A federal court ruled these “faithless electors” cannot be prevented from going rogue or punished for breaking a pledge, meaning in a close election, the will of the nation can be overturned by a handful of unscrupulous electors.
Beyond the Electoral College, a lesser discussed concern is the growing power disparity in the Senate. Each state is represented equally in the Senate, as opposed to the House where representation is proportional to population. At the time of the Constitution’s ratification, the population of the smallest state, Delaware, was roughly 10 percent of that of the largest state, Virginia using the official representation metric.
Today, the gap between the biggest states and the smallest states has widened considerably. The smallest state, Wyoming, is a paltry 1.5 percent of the population of the largest state, California. Combined, Texas and California have the same population as the smallest 28 states put together. This is staggering: two equal-sized groups of people, one represented by four senators, and the other represented by 56. This disparity will only grow wider, since the three most populous states – California, Texas and Florida – also accounted for half of population growth nationwide at the time of the last presidential election.
If small states were a roughly even mix of partisan-leanings, then maybe this trend would be another curious quirk with little impact on legislative outcomes, but the fact is that smaller states tend to be disproportionately conservative, granting the Republican Party a significant institutional advantage. Gridlock in Washington could also be exacerbated if the Senate’s ideological bent becomes permanently out of sync with the House, which will more closely represent the nation’s ideological breakdown due to its proportional representation.
Our democratic institutions have adapted before (see the 12th, 15th, 17th, 19th and 22nd Amendments as examples), but further evolution is necessary to ensure our elected government truly represents the will of the people. Any substantive reform would probably require a constitutional amendment and is therefore unlikely. Nonetheless, as a country we are quickly approaching a point where institutional reform is needed, or we run the risk of our republic becoming an unrepresentative democracy.
Noah Harrison can be reached at noahharr@umich.edu.