Citizens should be represented equally in elections
ELECTORAL COLLEGE REFORM
The Goal: Reform our Electoral College system to create a fair presidential election that counts all votes equally.
ONE PERSON, ONE VOTE?
At the core of democracy lies a simple principle—that all votes should count equally. Whether you’re white or black, rich or poor, from Rapid City, South Dakota or Cedar Rapids, Iowa, your vote should count the same as the vote of anyone else. “One person, one vote,” in the Supreme Court’s lingo.
But this principle is violated when we elect our president. Our Electoral College system is fundamentally unrepresentative, but that flaw is only partly the product of our Constitution. Much more significant—and much more remediable—are the choices that states have made for allocating their Electoral College votes.
At its core, the problem with the current system is “winner-take-all”—the choice by 48 states (and the District of Columbia) to allocate all their electoral votes to the winner of the popular vote in their state, regardless of the margin of victory. Because of winner-take-all, millions of U.S. citizens’ votes for president get discarded, simply because they are not in the majority in a particular state. For example, in the 2016 election:
- Hillary Clinton beat Donald Trump by just 45,000 votes in Minnesota, winning 46.4% to 44.9%. Yet she got 100% of Minnesota’s 10 Electoral College votes, while Trump got zero.
- In Michigan, Trump beat Clinton by just 10,000 votes, but he got every single one of its 16 Electoral College votes, while she got zero.
Adding up the discarded votes in all but two states (Maine and Nebraska) that assign their electoral vote by winner-take-all, there were over 52 million votes ignored in the 2016 presidential election. “One person, one vote” clearly does not look like this.
States originally adopted winner-take-all because it amplified the power of their electoral votes. But once practically every state had embraced winner-take-all, that effect was nullified, and presidential campaigns shifted their focus to the detriment of the whole country. Under winner-take-all, presidential candidates campaign exclusively in “battleground states”—states in which the popular vote margin of victory is close enough that one side has a real chance to beat the other.
THE CONSEQUENCES OF THE STATUS QUO
This concentration of voting power has three profoundly unrepresentative consequences:
1 Winner-take-all skews the political attention of the President and presidential campaigns exclusively to a handful of states. To get elected president, candidates must persuade not a majority of American voters, but a majority of voters in only 14 states. A study on the 2016 election finds that:
- Two-thirds of campaign events happened in just six battleground states—Florida, North Carolina, Ohio, Pennsylvania, Virginia, and Michigan.
- Four battleground states—Florida, North Carolina, Ohio and Pennsylvania—saw 71% of campaign ad spending and 57% of candidate appearances.
- The 14 battleground states saw 99% of ad spending and 95% of candidate campaign stops.
Making matters worse, battleground states are not simply smaller versions of America as a whole. Instead, they have unique characteristics that skew the entire election. For instance, voters in battleground states tend to be whiter and older than Americans generally; their industry is skewed to industry of the past. The issues that matter to younger Americans, and to people of color, are thus largely invisible in battleground campaigns. Winner-take-all thus outsources the selection of the president to a fraction of America’s voters (35% in 2016)—a fraction that does not in any sense represent the majority of America.
The fight for the presidency has become the fight to persuade this unrepresentative minority. Presidents seeking reelection are keen to keep this unrepresentative minority happy. Federal spending in battleground states is thus higher; regulations are catered to the special interests in those states.
2 Winner-take-all increases the probability of a “minority president”—a president who loses the popular vote, yet wins in the Electoral College. Two of our last three presidents, George W. Bush and Donald Trump, have taken office after losing the popular vote. The probability of electing a “minority president” in a close election is estimated to be over 30 percent, and that probability will likely increase over time.
3 Winner-take-all renders the presidential selection system particularly vulnerable to foreign interference. By concentrating the voting power to a handful of states, winner-take-all minimizes the number of votes that must be flipped in order to change the results in an election, making our presidential elections an easy target for foreign interferences.
THE CONSEQUENCES OF THE STATUS QUO
DIFFERENT APPROACHES TO ELECTORAL COLLEGE REFORM
DIFFERENT APPROACHES TO ELECTORAL COLLEGE REFORM
Abolishing the Electoral College would require a constitutional amendment, which three-fourth of states need to ratify. It’s virtually impossible to get 38 states to support ending the Electoral College when 14 swing states have been benefiting so much from the system.
Meanwhile, contrary to what most people think, the winner-take-all allocation of electoral votes is NOT in the Constitution. It was adopted by states in order to magnify their own voting power in the presidential election. Therefore, it doesn’t require a constitutional amendment to end winner-take-all. We believe we can end this unfair and unrepresentative practice through the following litigation and state legislation:
Equal Votes is a crowdfunded legal challenge to the winner-take-all method for allocating Electoral College votes. Based on the “one person, one vote” principle already articulated by the Supreme Court in Bush v. Gore, we argue that the winner-take-all system is unconstitutional—it is a violation of the Equal Protection Clause that ensures all of us, and all of our votes, must be treated equally under the law. And it also violates the core First Amendments rights of freedom of political association and expression.
Watch Equal Votes Q&A Videos with Lawrence Lessig →
Read Lessig’s Medium post explaining the Equal Protection argument against winner-take-all in the Electoral College →
In September 2017, Equal Citizens launched a 30-day crowdfunding campaign to raise $250k to fund the beginning stages of the Equal Votes project. The support we received far exceeded our expectations—a testament to how deeply the public cares about fixing the way we elect our presidents. During the campaign, Bush v. Gore lawyer David Boies volunteered to lead the litigation pro bono through his law firm Boies Schiller Flexner LLP.
Browse press coverage on Equal Votes →
On February 21, 2018, Boies Schiller Flexner LLP and a distinguished legal team including attorneys from law firms across the country filed four lawsuits in four states—California, Texas, Massachusetts, and South Carolina—on behalf of a diverse group of Democrats and Republicans whose votes for President didn’t matter in the general election under the winner-take-all system. All four of these cases raise constitutional claims grounded in the 14th and 1st Amendments. Two of the cases also raise a Voting Rights Act claim, which is a federal law that protects voting rights. By filing in four states, we’ll be able to prove that winner-take-all disenfranchises people all across our country, from east to west and south to north, and regardless of political party.
We are currently awaiting decisions from all four courts.
NATIONAL POPULAR VOTE COMPACT
Rather than abolishing the Electoral College via constitutional amendment, there is a work-around called the National Popular Vote Interstate Compact that is slowly gaining momentum across the country. The Compact would guarantee the presidency to the candidate who receives the most national popular votes, as states that sign on would award their electoral votes to whoever wins the most votes nationwide.
This maneuver is legally possible because the Article II of the Constitution gives states authority to allocate electors however way they choose. The Compact is written with a trigger clause: As soon as 270 electoral votes worth of states have joined the Compact, each of their state laws is activated to automatically allocate all their electoral votes to the winner of the national popular vote. The presidency will therefore be determined by the national popular vote—regardless of state-by-state results or what non-Compact states do.
So far, twelve states (California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, Washington state, and Washington, D.C) are all officially part of the Compact. With the electoral vote total reaching 172, the Compact is almost 64% of the way towards the trigger. But the fear of many is that no significant “red state” will join the Compact, making it impossible to reach 270 electoral votes.
Equal Citizens strongly supports the Compact, even though we’re not officially affiliated with the project. Through our litigation and advocacy, we believe we can help create the political conditions that would encourage the adoption of this important piece of legislation.
Read our blog post explaining why Equal Votes and NPV work well together →
In 2016, 7 electors—5 Democrats and 2 Republicans—voted contrary to their pre-election pledge in the Electoral College. These electors cast their ballots based on the good faith belief that the Constitution entitled them to depart from their pledge, but many ended up facing fines or threats of criminal prosecution from their state governments.
Even though the number of electors who voted their conscience were significantly below what was needed to affect the result of the 2016 result, a shift of seven votes would have been enough to change the results in other recent elections.In 2000, for example, a shift of just two votes would have altered the election outcome. That fact could encourage others to do the same in the next election, so there is an urgent need to resolve the question of whether an elector is free to disregard his or her pledge, or whether the states have the power to force electors legally to vote as they direct.
Equal Citizens is currently providing legal support to electors in Colorado and Washington who were removed, threatened, or fined by their state government for voting their conscience in 2016. In Washington State, we are defending three electors who were each fined $1,000 for voting contrary to their pledge. In Colorado, we have filed a voter intimidation action against the Colorado Secretary of State, responding to the removal of one elector, and threats to two others.
We entered this litigation because we believe it is critical for the Supreme Court to clarify the constitutional freedom of electors before the uncertainty creates a constitutional crisis. Moreover, Equal Citizens strongly believes that the Constitution does not permit the states to control the votes of electors. We believe that these states violated the electors’ voting rights because the Constitution guarantees electors the freedom to vote their conscience. Our argument draws on the understanding of the framers about the role of the Electoral College, as well as relatively recent Supreme Court authority that affirms electors’ freedom.
We believe the Supreme Court will affirm the electors’ freedom through our cases before the 2020 election.
If the court rules to affirm the electors’ freedom as we expect, the most likely and effective response would be for states to join the National Popular Vote Interstate Compact. Also, if 270 electors were pledged to the winner of the national popular vote automatically, then the additional electors from non-Compact states would be certain to create a margin significant enough to neutralize any plausible defection by electors in Compact states.
Whether or not the Court ultimately rules that electors are free to vote their conscience, we are hopeful that these cases will be the vehicle for resolving this crucial issue before the next election.
The Goal: End gerrymandering to ensure equal political influence for voters across congressional districts.
WHEN POLITICIANS CHOOSE VOTERS
Each one of the 435 members of the U.S. House of Representatives are elected to represent a geographic area called a congressional district. Our Constitution provides each state at least one U.S. Representative, and the number of Representatives each state gets depends on its total population, with the goal of dividing representation among the states proportionately.
Every ten years, after the U.S. census is completed, the U.S. Census Bureau is mandated to reassign the number of Representatives to each state according to the changes in state population recorded in the census. And when the states receive their congressional seats apportionment and updated population data, each state with multiple seats is responsible for redrawing its congressional district maps, provided that each congressional district is as equal in population to all other congressional districts in a state as practicable according to the new census data.
There is no federal law that provides instructions to states about how they must draw their congressional district maps. Redistricting procedures vary widely from state to state, and it is up to the state legislature in most states to draw the new district boundaries, unless the state uses an independent redistricting commission, or a court order overrides the state legislature’s decisions. The politicians who control the state legislatures when the district maps are redrawn can, and often do, manipulate the district boundaries by choosing the voters they want in their district, so that they get the best chance to be re-elected. This practice of manipulating the electoral map to gain an unfair advantage is called gerrymandering, named after Governor Elbridge Gerry of Massachusetts, who enacted a redistricting law in 1812 to keep his own party in power by drawing a district map that shapes like a salamander.
Congressional district maps can be drawn to provide the map-drawing party extreme advantages over an opposing party, to the point that the opposing party could have an overwhelming majority of votes, but still only win a minority of congressional seats in their state. The advancement of mapmaking technology and data collection means district maps can be rigged with precision never before imagined. Many opaque redistricting groups funded by dark money from corporations and special interests, often disguised as independent organizations, are pouring money into sophisticated tools to redraw district maps that favor their allies or harm their enemies.
THE CONSEQUENCES OF THE STATUS QUO
Just how bad is it? Because of gerrymandering, Democrats may “have to win the national popular vote by nearly 11 points” in order to win a majority of House seats in 2018. Here are some of the most egregious examples from past elections:
1 In 2012, Democrats won only 5 of the 18 congressional seats in Pennsylvania even though they received over 50 percent of the votes, or over 83,000 more votes than their Republican opponents.
2 In 2012, Republican won 11 of 14 contested congressional seats (or 79 percent of the seats) in Ohio even though they received only 51 percent of the votes in those races.
3 In 2012, Democrats won over 50 percent of votes in House races in four states—Michigan, North Carolina, Pennsylvania, and Wisconsin—but still won only a minority of seats in those states.
4 In Maryland, Democrats consistently won 7 out of 8 congressional seats (or 87.5 percent of the seats) since 2012, even though they received only around 60 percent of the votes during that period.
Besides electing a legislature that does not represent voters’ preferences, extreme gerrymandering makes congressional races less and less competitive. In 2016, only 37 of the 435 House races were competitive (that’s 8.5 percent of the House races). While geographic partisan sorting—i.e. voters increasingly choose to move into communities that share similar partisan ideology—plays a prominent role in reducing the competitiveness of House races, gerrymandering is also a contributing factor.
Perhaps more importantly, there’s a consensus that partisan gerrymandering contributes to polarization. When a district is not competitive—meaning that the candidate of the majority party has pretty much won the general election before the race even started—primary voters have no incentive to choose a moderate candidate in order to increase their chances of winning the general election. Combining a large number of non-competitive congressional districts with the fact that extreme ideological candidates can often win primary races because of low voter turnout and relatively low cost to run House primary campaigns, both political parties are increasingly captured by their own factions, and moderate voters’ influence have declined as a result.
Gerrymandering also allows incumbents to win more re-elections regardless of their job performance. A staggering 97 percent of incumbents won re-election in 2016, even though the congressional job approval rating was only about 19 percent during that time. While there are many factors (such as money) that give incumbents advantages over their challengers, and redistricting does not always protect incumbents; incidences of state legislatures redrawing congressional districts specifically to protect incumbents are well documented . When incumbents are protected from competition, voters cannot hold them accountable.
THE CONSEQUENCES OF THE STATUS QUO
SOLUTIONS TO GERRYMANDERING
DIFFERENT APPROACHES TO ELECTORAL COLLEGE REFORM
Gerrymandering clearly undermines equal representation, and district maps should be drawn in ways that give voters as close to equal political influence as possible. But unfortunately, there is no easy answer to what districts should look like—there are many competing priorities such as geographic compactness, competitiveness, racial and political proportionality that are often in conflict with one another.
The current single-member district system—whereby even a very slim majority (say 50 percent + 1 vote) gets all the representation in a district—makes the redistricting process particularly vulnerable to manipulation. With so many votes in each district wasted simply because they don’t belong to the majority, district maps can be easily drawn to make sure that some voters never get any representation. And without a clear priority of redistricting goals, it’s virtually impossible to effectively police and eliminate gerrymandering under a single-member district system.
That’s why Equal Citizens endorses Fair Vote’s Fair Representation Act, which proposes House Members to be elected by “fair representation voting” methods through multi-member districts, ranked choice voting, and independent redistricting commissions.
FAIR REPRESENTATION ACT
The Fair Representation Act will replace the current winner-take-all, single-member districts system with larger districts in which candidates will compete for multiple seats. While the number of total U.S. House of Representatives will stay the same (at 435), each district will be larger, with up to 5 seats. Members in each district will be elected by ranked choice voting—where voters will be allowed to rank candidates in order of preference. A candidate who received first choice votes over a certain threshold will be elected, and the candidate with the least votes will be eliminated. Any excess votes over the threshold for the elected candidate and the votes for the eliminated candidate are then counted for their second choices. This process will repeat for several rounds until all seats are filled. Under the Act, rather than letting politicians choose their voters, district maps must be drawn by a nonpartisan, independent commission based on a set of criteria that ensures fairness and integrity.
Watch this multi-member rank choice voting explainer video →
The benefits of this fair representation voting system are profound. Multiple-member districts with ranked choice voting will allow most voters to participate in a meaningfully contested election with a broader array of candidates. Voters will be much more fairly and equally represented, with the share of seats won by each party more closely aligned with their popular vote share. This system will also reduce polarization, discourage negative campaigning, and promote support for third-party candidates.
Learn more about the Fair Representation Act on the FairVote website →
Read this scholar assessment on fair representation voting methods →