Making The Electoral College Rational

One simple reform in the Electoral College can change it from a frustratingly unrepresentative process to one that more closely mirrors the true will of American voters. We have addressed this issue before, but the upcoming presidential election—which is destined to once again be extremely close—makes the need for this reform even more timely and worthy of additional discussion.

The reform is simply this: apportion electoral votes by congressional district, not by the current “winner-take-all” method. In the present system, If Donald Trump or Kamala Harris wins a state by one vote, they win all of that state’s electoral votes. This is true even if the ‘losing’ candidate carries one or more congressional districts in the state. So, up to 50% of a state’s voters can effectively be disenfranchised. It’s hard to think of any system that is more un-democratic.

Thankfully, we have a real-time example of the Congressional District Method in the great states of Maine (begun in 1972) and Nebraska (begun in 1992). These states allocate two electoral votes to the state’s popular vote winner, and one electoral vote to the popular vote winner in each of their congressional districts (2 in Maine, 3 in Nebraska). This has resulted in several “split” vote allocations over the years. In fact, there are scenarios where those single district electoral votes could decide the 2024 election for either Trump or Harris. 

Earlier this year, the Nebraska legislature threatened to revert to the ‘winner-take-all’ format, to insure a Republican candidate’s win in the deep-red state. Quickly, Maine shot back that if Nebraska changed their system, they would go back to the old system as well—likely giving all of their state’s electoral votes to a Democratic candidate.

All of this could be resolved by making the Congressional District Method nationwide—either with the Nebraska/Maine allocation scheme or a simpler proportional allocation scheme (that would avoid the problem of gerrymandering). Anything would be better than the current system—which robs millions of Americans of a true voice in their presidential elections.

Can A 'Contingent' Election Happen?

Just three times in U.S. history a presidential election has resulted in no candidate getting a majority of electoral votes: 1801, 1825 and 1837. When this happens, Article 2, Section 1, Clause 3 of the U.S. Constitution kicks in—clarified by the 12th and 20th amendments. Basically, the U.S. House of Representatives would vote (by state delegations) to select the President and the Senate (also voting by state delegations) would pick the Vice-President. 

Both the 12th and 20th amendments to the constitution determine that this “contingent election” process would take place with the incoming Congress. So, in this scenario, the composition of both chambers is obviously critical to the end result. If Republicans retain the House, Donald Trump would likely become President. And, if Democrats hold on to the Senate, they could pick Tim Walz as Vice-President. 

While it’s highly unlikely that the Electoral College will be deadlocked (269 votes for each candidate) or that no candidate gets a majority in some other scenario, it could happen (see the map above). Trump would have to partially break the “Blue Wall” of Midwestern states by taking Michigan and also win Pennsylvania. Harris would have to carry Georgia, Virginia, North Carolina, Arizona, Nevada and New Mexico. Again, all of this is unlikely, but possible given the tightness of the polls in many of these swing states.

So, we could wake up after Election Day (or, more likely, weeks later when it's all tallied) with the first “contingent” presidential election in 187 years! Needless to say, we’d need to fasten our collective seatbelts even more tightly than they are now.