The Easiest Way to Fix the Electoral College (or why we should all move to Wyoming)
You’ve heard of the Apportionment Act of 1911, right? Of course you have. It’s a big reason why Donald Trump is president right now.
When Donald Trump became president I was frustrated. He won even after losing the popular vote by 3 million people (Although, I hear his inauguration crowds were yuge!). In my shock, I asked google “why do we only have 435 representatives.” That’s when I learned about the Apportionment Act of 1911. As a math guy, it just didn’t make sense to me that even though our country keeps growing, our electoral college doesn’t. This wouldn’t be a problem if our founding fathers hadn’t made the rule that every state gets 2 senators and at least 1 representative.
As the Constitution tells us:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…
What they didn’t plan on, was us screwing up the system. And in 1911, we did.
In 1911 we decided, as a country, to cap the number of representatives at 435. This is one of the main fixtures of the Apportionment Act of 1911. As long as the states remain close to equal in population this shouldn’t be a big deal. But of course, this just isn’t the case.
The best way to illustrate the problem is to consider California, the most populous state, and Wyoming, the least populous state. California has 53 representatives and Wyoming has 1. This means, California with a population of 39,250,017 and Wyoming with a population of 563,626, don’t have proportionate representation in Congress or in the electoral college. There are a total of 538 electoral votes. California gets 55 and Wyoming gets 3 (each state gets 1 electoral vote for each of its 2 senators plus its representatives). So each Californian electoral vote represents 713,636 people, and each Wyoming electoral vote represents 187,875 people. If you’re from Wyoming, your electoral vote is worth 3.8 times more than a Californian electoral vote!
It doesn’t have to be this way. There’s an easy fix.
What we need to do is base the number of representatives on the smallest state. In this case, the least populous state is Wyoming. Using Wyoming as a base line, we can expand the house to provide equal representation for all states. This isn’t a new idea; it’s called the Wyoming Rule. Using the Wyoming Rule, votes will no longer be worth more depending on which state you live in (sorta, keep reading).
How would the election of 2016 have turned out using the Wyoming Rule?
If we had re-apportioned our House of Representatives according to the Wyoming Rule, in 2010 (the last census) we would have resized the House to be 545 members. There would be a total of 648 electoral votes (all the senators+representatives per state, plus DC gets 3 electoral votes to make the math interesting). California would get 68 electoral votes and Wyoming would still get its 3. So, doing the math again, each Californian electoral vote represents 577,206 people and Wyoming stays the same with each electoral vote representing 187,875 people. It’s not perfect, but now a Wyoming electoral vote is worth 3 times are much (instead of 3.8). That may not seem like a big difference, but bear with me; this 3 to 1 ratio is guiding us to a solution. Also, this is the worst case of the most populous vs. the least populous state. All the other state comparisons are less extreme.
But, more interestingly, who becomes president in the 2016 election under the Wyoming rule?
It turns out, not much changes. Trump still wins 333 to 315. How can this be? With more equal representation the popular vote would be better represented in the election. That’s the promise of the Wyoming rule, right? Well, there is still one more issue. Every state gets 2 electoral votes from having 2 senators. California gets 2 and Wyoming gets 2. It’s in the Constitution. That is what is creating this 3–1 power struggle that Wyoming has over Californian voters. An easy fix would be to remove the extra 100 electoral votes (102 counting DC). That would require a constitutional amendment. Even though the majority of Americans want the electoral college changed, getting a constitutional amendment is tough (by design, of course).
Trump won 30 states, Clinton won 20 (Clinton essentially won 21 states counting DC). That means if we subtract the electoral votes that come from 2 senators in each state (60 for Trump and 42 for Clinton), our election looks more reasonable: 273–273. It’s a tie!
Our apolitical, bipartisan House of Representatives would have handily cleaned up the tie and ruled with the populous in mind and everything would have been fixed, right?
If Gore v. Bush has taught us anything, it taught us that even when we expect our checks and balances to work, sometimes they leave us wanting. It’s up to us to fix it.
So how do we fix it?
There is a chaotic prospect looming on the horizon. While no one has been paying attention, we’re surprisingly close to our first constitutional convention since 1787. You may not realize it, but once a state legislature calls a constitutional convention, that call stays until rescinded. It’s being pushed by the Koch brothers and they’re close to pulling it off. With only six more states voting yes, the ball will start rolling to rewrite the constitution. This is the states way of giving a big middle finger to Congress.
In a new constitutional convention, we can rewrite the entire constitution. The metaphorical equivalent of throwing the baby out with the bathwater, but it’s one that’s being pushed by some Republican leaders. We need to be ready if it does happen and coalesce around ideas that can actually help our democracy survive demagogues and dictators.
This is the hard way, but it’s one we need to be prepared for.
What’s the easy way?
The easy way is for either Democrats take back the House and Senate to supermajority levels or to get bipartisan support. This is not as far-fetched as it once appeared pre-Trump. With support from Congress, real issues concerning a representative democracy and fair elections can be discussed.
We are talking about a constitutional amendment. But, the amendment is simple. Remove two words from the constitution (of Senators):
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Representatives to which the State may be entitled in the Congress…
All 27 of our constitutional amendments have come from Congress not through a constitutional convention. It will require a 2/3 vote in Congress and then need to be ratified by 3/4 of the states (38 of the 50 states). It’s a long process, but something as important as improving our election process demands it.
Before going for an amendment we can test the waters by attempting to update the Apportionment Act of 1911 to be more representative and remove the cap (the Wyoming Rule). That gets us to the magical 3–1 representation of largest state, California, to smallest, Wyoming. Then, Removing the ‘2 senators get 2 electoral votes’ rule makes sense. Each representative will still mean 1 electoral college vote, but we will have a more representative electoral college and one in which candidates will still have go to the smaller states to garner support.
Remember, with the Wyoming rule applied and senators removed from the electoral count, Trump only tied with Clinton — even though Clinton won almost 3 million more popular votes. The reason why? The electoral college! It is built from state representative numbers, keeping states like Wisconsin, Pennsylvania, Ohio, and even little old Wyoming in play.
As our founders intended.