If We Can't Win, Then Dismantle the System

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Aimed at the 2020 election, this lawsuit is an attempt to change the way that Americans elect their President. Harry Melkonian
Harry Melkonian

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The anger from the Northeast about the outcome of the 2016 presidential election is without limits. It now manifests itself with a legal attack on how the Electoral College casts votes for the President. Aimed at the 2020 election, this lawsuit is an attempt to change the way that Americans elect their President. A sad corollary is that if the litigation is successful, the result could permanently destabilise the USA.

The US elects Presidents through an intricate process that seems irrational except when viewed historically. When examined in light of the prevailing politics at the time of federation, it actually makes sense. The essential principle is that the President is elected by the States and not by individual voters – everything flows from this. Each State is allotted a number of electors. The number of electors is calculated as the number of House of Representative Members (based on population but always at least 1) plus the number of Senators (always 2) from that State. For example, Alaska has 3 electoral votes: 1 member of the House + 2 Senators. California, on the other hand, has 55 electoral votes: 53 House members + 2 Senators. The system is weighted in favour of the smallest states because they are guaranteed at least 3 electoral votes regardless of population.

To be elected President, the candidate must win a clear majority of the Electoral College votes. If no one has a majority, then the election is decided by the House of Representatives with one vote allotted to each State. That’s right; California and Alaska each receive one vote.

This process was part of the overall compromise between large and small states during the Constitutional Convention. The same type of compromise allotted the same number of Senators to each State regardless of population.

Now, the Constitution does not specify how States select Electors. In fact, there is no requirement for popular Presidential elections. In the early days of the Republic, not every State allowed popular voting but instead chose Electors through the state legislature. Today, popular voting is allowed in every State.

Under the Constitutional framework, it is essential to keep in mind that it is the States who actually cast votes for the President. This explains how a candidate, like President Trump, can lose the popular vote but still be elected. He carried lots of States by small margins whereas Hillary Clinton carried much fewer States but by very large margins. A similar result also occurred in 1960 where Richard Nixon and John Kennedy were effectively tied in the popular vote, although Kennedy was rather clearly elected because he carried many States by small margins whereas Nixon tended to win in fewer States but by larger margins.

The Constitution is silent on how States allocate electors and traditionally this has been a matter of State law. With the exception of Maine and Nebraska, all of the States have adopted a winner-take-all or first past the post approach. That is, whoever captures the most popular votes in a State, will be awarded all of that State’s Electoral votes. So, Hillary Clinton was awarded all 55 of California’s Electoral votes even though Donald trump received a significant number of votes in California. If there are more than two candidates, like in 1968, whoever has the most votes (first past the post) wins all of the Electors.

A consequence of the winner-take-all system has been an incredibly stable federal government. Because of winner-take-all, third parties virtually never seem to get out of the starting gate. Since first past the post gets all the Electoral votes, casting a vote for a third party is basically a wasted vote. The consequence is that one of the major Party candidates almost always has a clear majority in the Electoral College.

Now, the current litigation, apparently brought by some diehard Clinton supporters alleges that a winner-take-all is somehow unconstitutional and that Electoral votes should be awarded proportionally. The goal of this litigation is to assure that the winner of the overall popular vote will win the election regardless of how many States that candidate carries. But, this argument fails for a number of reasons.

First, an important aspect of constitutionality is tradition. That is, if a practice has been followed for many years, the Supreme Court is reluctant to tamper with it unless, of course, the practice is in some manner unlawful.

Second, it opens the door for third parties to become a presence in American elections. By proportional allocation of Electoral votes, third parties could conceivably accumulate enough votes to deny any major candidate an Electoral College majority. Third party electors would be in a position to bargain their electoral votes with major party candidates with the threat of throwing the election into the House of Representatives.

Australians are quite familiar with how minor parties can destabilise the government. Proportional voting in the Australian Senate allows minor parties to win enough seats to have veto power over government policy. Witness the difficulty faced by the Turnbull Government in making tax law changes.

Third, even if Electors are chosen proportionately, it does not mean that the winner of the overall popular vote will be elected President. The structure of the Electoral College as mandated by the Constitution prevents popular vote elections. Remember that the number of Electors allotted each State is strongly skewed in favour of the smallest States – each of which has 3 Electoral votes regardless of population. In other words, because Donald Trump rather thoroughly swept the smallest States, he may still have been elected even with proportional Electoral College voting. As for changing how the Electoral College is constituted, that would mean amending the Constitution. This is a remote possibility because at least some of the States that would lose voting power would have to consent to the change – not too likely.

Finally, while the system is convoluted, the candidates all know the rules and a key part of election strategy is mapping the route to victory. This consists of candidates plotting out where they must win to accumulate the magic number of Electoral College votes to secure election. The 2016 election was effectively decided by a handful of mid-western States that appeared on both candidates' paths to victory. Trump won in most of these States by small majorities but, under time-tested rules, he was elected. Had Hillary Clinton won in Michigan, Wisconsin and Pennsylvania, she would have won.

What is the likelihood of the lawsuit prevailing? While it is never possible to predict the courts, my own estimation is that this is an area that the Courts would want to avoid and will avoid. The test challenge is being made against Texas. The litigation is also being supported by a number of academics. I suspect they consist of people incensed about the last election and who have not considered the long-term consequences to the US and the rest of the world of such a potentially destabilising action. This story is far from over and there will be more to say in the coming months.

First published . Last updated 14/12/2018. Disclaimer: The views, information, or opinions expressed in this article are solely those of the author and do not necessarily represent those of the University of Newcastle and its employees.

About Harry Melkonian

Harry Melkonian is a freelance writer, educator, commentator and lawyer with a focus on US politics. He has conducted short courses on US politics in Sydney on topics ranging from current elections to historical issues including well-known events such as the Kennedy Assassination and Nixon and Watergate to less well-known American history such as When No One Was Elected – the Presidency and Vice Presidency 1974-1976. He has periodically appeared on the ABC and SBS as a commentator for Australian elections. Harry was previously a partner at the law firm White & Case in the US, and is licensed to practice law in the jurisdictions of New York, California, England and New South Wales. He is now an Honorary Associate at Macquarie Law School, specialising in US constitutional issues as well as media and defamation law.