The Federalist Society is pleased to announce its Student Blog Initiative, a project of the Practice Groups and the Student Division. An inaugural group of eight students will contribute to the Federalist Society's blog throughout this academic year. Student contributors accepted into the program are held to the same rigorous standards as the regular and guest contributors to the blog, which exists as a forum for experts to provide thoughtful, balanced commentary in an engaging, accessible manner.
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The Electoral College, as outlined in Article II of the Constitution and the Twelfth Amendment, was designed by the Founders to prevent “tumult and disorder” in presidential elections, as well as “cabal, intrigue, and corruption.” The Founders supported the Electoral College almost unanimously, with Alexander Hamilton declaring that the institution was “almost the only part of the system, of any consequence, which has escaped without severe censure,” and that even the Constitution’s “most plausible” opponent had “deigned to admit that the election of the President is pretty well guarded.”
Nevertheless, the Electoral College has received scrutiny from both sides of the political aisle in recent years, spurred at least in part by the winners of the 2000 and 2016 elections not earning a majority of the national popular vote. Since the election of President Trump in 2016, renewed appeals have abounded for the abolition or other major reforms of the Electoral College to reflect the nationwide majority vote. Republicans supported abolishing the Electoral College in 2012 but oppose such a measure today, and the nation is split overall.
Perhaps another essay could examine the pros and cons of these proposals, or indeed of the Electoral College itself, but in a deeply divided nation, there is another reform that has the potential to garner bipartisan support: the congressional district method of appointing electors.
Article II authorizes each state to appoint its electors “in such manner as the legislature thereof may direct.” Today, 48 states employ a winner-take-all method, awarding all electors to the winner of the state’s plurality vote. Maine and Nebraska, however, have adopted the congressional district method. Under this model, the plurality winner in each state receives two at-large electors, representing the state’s two Senate seats. The other electors, representing the state’s delegation in the House of Representatives, are given to the plurality winner in each congressional district.
Maine adopted the district method in 1972, and Nebraska did so in 1992. But each state has only seen a split vote twice: Maine in 2016 and 2020, and Nebraska in 2008 and 2020. Ultimately, none of these splits were decisive on election night. It is possible that one party or the other might benefit from enacting the district method in every state, but it is hard to predict, as even hypothetical models purporting to show alternative outcomes from previous elections are hamstrung by the fact that that voter turnout would likely change dramatically, particularly in battleground districts.
Voter excitement often varies between red, blue, and purple states. Unsurprisingly, battleground states are more likely to yield a higher voter turnout. Of the states to outperform the national average of 66.7% turnout in the 2020 presidential election, twelve (including Maine and Nebraska) were either swing states or contained a swing district. Of the states with below-average turnout, only three were battleground states.
Thus, the district method would likely produce a significant increase in voter turnout in blue states’ red districts, in red states’ blue districts, and in purple districts, because more voters would feel that they had a say in the election.
As a result, opponents of the Electoral College should support the congressional district method because it satisfies two of their primary concerns: increasing access to and participation in the democratic process, and achieving results that are more representative of the voice of the people.
And for those hoping to preserve the Electoral College, the congressional district method would uphold with the Founders’ vision in three key ways:
First, as long as states individually adopt this method, they are in compliance with Article II.
Second, the Founders themselves employed similar district plans. From 1789 to 1832, at least one state appointed electors based on a district model.
Third, this reform would maintain the “mixed character” of the Electoral College, as described by James Madison, representing the interests of both the states and the people, just like Congress: the Senate representing “distinct and coequal societies” and the population-based House of Representatives signifying “unequal members of the same society.” Unlike the House, elected by the people, and the Senate, originally elected by the states, “the executive power” was meant to “be derived from a very compound source.”
A nationwide congressional district method would preserve the equal representation of all states’ interests through the two at-large votes, but it would also increase voter turnout and better represent the voice of the people in each congressional district, thus preserving the mixed character of the Electoral College.
Still, universal implementation would probably require cooperation. California and New York are unlikely to implement a system that would yield Republican electors without similar action from Texas and Florida, and vice versa. But realistically, state legislatures with rival party majorities could choose to coordinate bills, perhaps on a contingent basis or with State #1’s governor waiting to sign the bill into law until State #2’s legislature passed similar legislation. If states preferred to wait until a larger coalition had formed behind this proposal rather than rolling it out one or two states at a time, they could even seek a constitutional amendment. In a nation plagued by division and mistrust in our institutions, this seems at least worth a shot.