The year 2020 will bring crucially important expressions of American democracy. We will elect every member of the House of Representatives by majority vote in each member’s district. We will elect 35 senators by majority vote in states having open seats.
All of these elections will be decided with every voter having a vote equal to every other voter. It seems to be the voice of democracy in its purest form. But there will also be the election of the president, and that’s where things are very different.
The president will not be elected by a majority of Americans. He or she will be elected by the Electoral College, a body of electors established by the Constitution and convened every four years for the sole purpose of electing the president and vice president. It consists of 538 electors, and a majority of 270 votes is required to win election.
Each state’s number of electors is equal to the combined total of the state’s membership in the Senate and House of Representatives. This is where the concept of one-person-one-vote disappears. Consider: The least populated state, Wyoming (with a population of 577,000), has 3 electoral votes, while North Carolina (10.4 million residents) has 15. For purposes of arithmetic comparison, this means that for each vote cast by a voter in North Carolina, a voter in Wyoming has the equivalent of 3.5 votes.
So, what do we do about this glaring inequity? The answer is — nothing. A change in the methodology of Electoral College voting will require an amendment to the Constitution, requiring the approval of two-thirds of the states. That means that those states having less than the average population of all states would have to give up their leveraged benefit in electing the president. They are not going to do that.
However, that’s not the end of the issue. There is a separate — and more troublesome — issue regarding how each state casts its votes. Pursuant to Article II, Section 1 of the Constitution, each state legislature determines the manner by which its state’s electors are chosen. Herein lies the problem.
All but two states, Maine and Nebraska, allocate their electoral votes on a winner-take-all basis. This means that in 2016, more than 1.7 million votes for Donald Trump in Virginia were simply thrown out, and in North Carolina, 2.1 million votes for Hillary Clinton were ignored. And, of course, although Clinton won the nationwide popular vote by more than 2.8 million votes, she went home the loser because Donald Trump won the Electoral College vote. Whether this is a horrific example of democracy betrayed or a blessed result depends on whether the observer is sitting in the blue bleachers or the red ones.
Maine and Nebraska use the “congressional district method” for allocating Electoral College votes, selecting one elector within each congressional district by popular vote and selecting the remaining two electors by a statewide popular vote. This method has been used in Maine since 1972 and in Nebraska since 1996. No state allocates its electoral votes in direct proportion to the votes for each candidate.
So, why doesn’t someone bring a federal case to disallow the winner-take-all destruction of the one-person-one-vote principle? It is because such an action would seem to be sailing against the wind as a result of the Supreme Court’s very recent gerrymandering decision.
In that case, North Carolina plaintiffs claimed that the state’s districting plan diluted the votes of Democrats, and in Maryland the plaintiffs claimed that the state’s districting plan diluted the votes of Republicans. There was no question that both states’ legislatures engaged in the practice of partisan gerrymandering. As one of the two Republicans chairing the Carolina redistricting committee stated, “The map was drawn with the aim of electing 10 Republicans and three Democrats because we did not believe it would be possible to draw a map with 11 Republicans and two Democrats.” If this is not the erasure of the fundamentals of democracy, then one cannot be found.
Nevertheless, quoting the late Justice Scalia, Chief Justice Roberts wrote, “Fairness does not seem to us a judicially manageable standard … Some criterion more solid and more demonstrable than that seems necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decision-making.”
Obviously, the chief justice does not consider the principle of one-person,-one-vote to be at the heart of fundamental democracy, nor does he think it deserving of constitutional protection. So, things are not going to change in 2020.