Another divisive tweet by President Trump was the backdrop of the question asked by student “John” on Monday morning in my Civics class at Santa Clara High School as we began our unit on the Executive Branch.  His questions were simple ones:  How does one candidate get more popular votes but lose the presidency?  Is the presidency the only election in the United States where that happens?  I said sadly yes!

From dogcatcher to POTUS, the presidential election in the United States is the ONLY office where a candidate could WIN the popular vote yet LOSE the election.  In fact, it has happened FOUR times in our nations’ history: 1824 when Andrew Jackson won the majority of the popular vote but lost to John Quincy Adams.  In 1876, Rutherford B. Hayes squeaked by Samuel Tilden, even though Tilden had more popular votes.  In 2000, Vice-President Al Gore received 543,895 more votes but lost the presidency to Governor George W. Bush, and, most recently in 2016, when Donald Trump won the White House even though Hillary Clinton received 2,868,691 more votes.   Yes, this has happened TWICE in the past 16 years!  John looked puzzled and defeated.  He wanted to blame someone.  I said four words to him: blame the Electoral College.

We looked to our rulebook, the Constitution to understand the electoral college.  Article II, section 1 discusses the election of president.  One of the many compromises at the Constitutional Convention in 1787 was election of our Commander in Chief.  Simply, the Framers did not trust direct democracy as evidenced by the failures of our first government:  the Articles of Confederation.  Of the Articles, James Madison concluded that “a spirit of locality” was destroying “the aggregate interests of the community”.  The Framers did not want our fledging nation to share the fate that had befallen the ancient republics of Greece and Rome.  To avoid that tragic fate, they instituted the Electoral College where the people do not directly elect the president. Rather, states choose electors would elect the president, more populated states having more electors than less populated states.  John then keenly stated “that may have worked in the 1780s when the average voter was not informed and may have choose a candidate based on the color of their wig.  This is 2017!  What can be done to abolish this archaic, undemocratic system?”

I was so proud of John at the moment, being an independent thinker questioning the status quote.  We looked to the Constitution for the answer: how to amend the Electoral College.  Congress has attempted to abolish the Electoral College several times unsuccessfully.  Such reforms have been severely hampered by the amendment process found in Article V of the Constitution.  In this era of hyperpolarization, the threshold of proposal by two-thirds of Congress and ratification of three-fourth of the states is nearly impossible.  Remember, we have only had ONE amendment since 1992.  Germany, for example, has made 50 changes to their constitution since 2003.  As evidenced, Senator Barbara Boxer’s proposal in 2016 to abolish the Electoral College and go the direct popular vote never even made it out of congressional committee!

However, I said there are THREE realistic reforms to the Electoral College that could garner enough support:

1)  Go to the Maine and Nebraska method:  Unlike the other 48 states and the District of Columbia, Maine and Nebraska do not allocate their electoral votes on a “winner-take-all” system.  Rather, they use the “congressional district method.”  These two states allocate two electoral votes to the state popular winner and then one electoral vote to the popular winner in each congressional district (2 in Maine and 3 in Nebraska).  This creates multiple popular vote contests in these states, which could lead to a split electoral vote as seen in 2008 when McCain won the state but Obama won a congressional district in Omaha, and, in 2016, when Clinton won Maine, but Trump won a district in the rural area of the state.  Under the congressional method system, the state legislature need only to pass a bill, thus reforming the Electoral College.   However, it is highly unlikely that at least 38 states would adopt this model.  For example, there is no way the Democratic party that controls California would allow a Republican presidential candidate to win electoral votes in area of the state that are red like the Central Valley.  Similarly, the Republican party that controls the statehouse in Texas does not want a Democratic candidate for POTUS pick up electoral votes in liberal areas like Austin.

Chance:  Possible but highly unlikely

2)  Go to the National Popular Vote Interstate Compact (NPVIC).  Under such a system, all states and D.C. allocate their respective electoral votes to the winner of the popular vote nationwide.  Simply, whoever wins the popular vote wins the presidency.  As of 2017, ten states and the District of Columbia have adopted such a compact. Together, they have 165 electoral votes, which is 30.7% of the total Electoral College and 61.1% of the votes needed to make the NPVIC legal.  However, this is highly unlikely, as you would need three-fourths of the states (38) to have the NPVIC take effect.  Many swing states, like Florida and Ohio, will not vote for this reform, as they would lose their disproportionate influence on presidential elections.

Chance:  Slim to none and Slim left town

3)  Go to the Alternative Voting (AV) System:  Under an AV system, voters would rank their candidates.  For example, in 1992 there were 3 major candidates running for the presidency (Governor Bill Clinton, President George H.W. Bush, and Texas billionaire Ross Perot).  Under such a system, the spoiler effect would be eradicated.  19,743, 821 people voted for Perot that year, 18.91% of the popular vote.  Under an AV system, those voters would have been able to rank wither Clinton or Bush as their second choice.  Overwhelmingly, Perot voters would have ranked Bush as their second choice.  Under an AV system, Bush would have been re-elected.  Similarly, in 2000, 97,421 Floridians voted for Ralph Nader.  If they had a choice to rank the candidates the majority of them would have chosen Vice-President Gore, Gore would have won Florida, therefore, been elected POTUS.  In fact, many municipalities in the Bay Area such as Oakland and the City and County of San Francisco have implemented an AV system for their local elections.  We could be replicated at the state level.  Again, the threshold is high because at least 38 states to support such a change.

Chance:  Possible

As we ended class, John made my day when he stated one of my favorite quotes of all-time from Supreme Court Justice Louis D. Brandeis in 1932, ““A single courageous State may if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Sam asserted it is time for California to be that courageous state and lead the movement for reform the undemocratic Electoral College.  

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