How to Find Common Ground on Electoral College Reform

Donald Trump was elected President of the United States on November 8th, despite failing to win the so-called popular vote. Hillary Clinton garnered the largest plurality over Donald Trump in this category, with 48% of the total votes cast.

Instead, Trump secured his victory in the Electoral College. The Electoral College is composed of 538 electors, apportioned among the states based on their representation in Congress and three from the District of Columbia. This system has proved advantageous for the Republican Party, which has won the popular vote only twice since 1988. Yet, assuming Trump completes his term, this means that the GOP will have held the White House for 16 of the last 32 years.

Conversely, the Electoral College has not been so kind to Democrats, who have lost the White House twice in the past 5 elections despite receiving the largest plurality. In fact, no Democrat has ever been elected to the Presidency without winning the popular vote.

Trump’s election is certainly testing the faith of Democrats in the Electoral College as an institution. Some have called to end the Electoral College altogether, or to remove its significance by awarding the state’s electoral votes to whomever wins the national popular vote. However, neither of these methods are likely to be implemented. The Constitution requires the approval of two-thirds of the states to amend the Constitution, and state laws mandating that electors vote a certain way are probably unconstitutional.

Electoral College Reform by way of Reapportionment

Interestingly, though, few Democrats have called to reform the electoral college in the most democratic way possible. A way that both furthers the principles of our Constitution, and which could be implemented as early as the next census: expanding and reapportioning the number of seats in the House of Representatives.

Today, the Congress of the United States is composed of 435 members of the House of Representatives and 100 members of the Senate. The Constitution mandates that each state be represented by exactly two senators in the Senate. However, the Constitution instructs that the members of the House must be apportioned based on the country’s total population, though each state must be represented by at least one member. The Constitution imposes no ceiling on the number of representatives that can be seated, but it does give a ratio for representation. Article I Section 2 of the Constitution requires, among other things, that the total number of representatives, “shall not exceed one for every thirty thousand.”

Every 10 years after the new census, the government takes the population totals and determines whether new seats need to be added, and if the current apportionment of the seats need to be altered. If changes needed to be made, congress passes a bill to add and reapportion the seats for the next term. This is all well and good, except the Congress has not added new seats in over 100 years.

History of Apportionment

In 1911, the Congress passed an Apportionment Act to set the number of seats in the House at 433 members with the option for two more seats if the Arizona and New Mexico territories achieved statehood. Congress did not pass a subsequent Apportionment Act until 1929. There, Congress required that the “then existing” number of Representatives be apportioned according to the method used in the last previous apportionment. Thus, because the 1911 Act only allowed new seats to be permanently added for Arizona and or New Mexico, 435 became the “then existing number” of Representatives.

Congress passed another amendment to this law in 1941 which altered the method for how to apportion the “then existing” number of Representatives. Today, the 1941 law exists as 2 U.S.C. §2a and the first Congress after a census apportions itself under these rules. States either gain or lose seats to each other, but under this law no seats are ever permanently added to the whole number of representatives. For example, when Alaska and Hawaii were admitted into the Union in 1959 the House briefly sat 437 members. The 1960 census, operating under the 1941 law requiring the apportionment be made only among the “then existing” number of representatives, these seats were apportioned out by the 1962 election. Thus the composition of the House has not changed in over 100 years.

Two questions arise when considering how to apportion the seats of a deliberative assembly: how many seats, and who gets those seats?

As noted above, the Constitution answers this first question: the number of representatives shall not exceed one for every thirty thousand people. However, the founders did not arrive at this answer easily. Indeed, James Madison wrote in Federalist No. 55 that, “No political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature.”

In 1911, Congress set the number of seats at 435 using a ratio of roughly 1 representative for every 210,000 people. Today, the ratio is around 1 for every 720,000 people. If the House held itself to its constitutional obligation to seat representatives under the 1:30,000 ratio, the House would have over 10,000 members.

The size of the House of Representatives over time.

“A brief review of other governments around the world suggests little harm comes from expanding the number of seats in the House.”

Many might point to this figure and deem that number of members to be unnecessary or counterproductive. Surely a legislature should not be so large that the number of legislators and their specific agendas curtail the conduction of legislative business. But a brief review of other governments around the world suggests little harm comes from expanding the number of seats in the House.

For example, a new ratio of 1 representative for every 500,000 citizens puts the House at 650 seats; this figure equals the number of seats in the U.K. House of Commons, and is slightly above the German Bundestag, which seats 630 members. Different forms of government require more or less representation than others, but this at the very least suggests Congress could still conduct its business even if there are more legislators.

In order to answer the second question, we again look to the constitutional ratio. Article I Section 2 of the Constitution states that “Representatives…shall be apportioned among the several States…according to their respective Numbers…. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at least one Representative; …” The founders were also puzzled as to how to correctly apportion the seats. In fact, George Washington’s first veto struck down a method of apportionment proposed by his Treasury Secretary, Alexander Hamilton.

In the history of the United States, Congress has used 5 different methods to solve the apportionment question. The current mathematical method for apportioning the seats in the House is the Huntington-Hill method, or “the method of equal proportions.” This method assigns seats to states based on their priority value. Essentially, if a state has a high population and has continued to grow that population since the last census, the more likely it is that that state will be apportioned a seat from another state.

Though this method does allocate seats such that the districts in each state represent roughly the same number of people, different states end up with different levels of representation. For example, California averaged 700,000 people per representative after 2010, while the State of Nebraska roughly averaged 1 for every 600,000 people. Perhaps the most glaring example of the issue arises between Rhode Island and Montana. Both states currently have populations that exceed 1 million people; yet Rhode Island has two seats and Montana has one.

Expanding the number of seats in the House would help to alleviate some of this inconsistency, but a closer look at the method of apportionment might also be in order.

None of this means that an expanded House of Representatives would have caused Trump to lose the election, nor is that the goal of this argument. Rather, the point is that if Americans value democracy, and believe that the people should have their say in electing a President, then the people’s house needs to be put back in order.

America prides itself on being a constitutional republic, true, but congress has drifted a significant distance from the democratic elements of our Constitution, and has done very little to rectify itself. If progressives want to fix the problems associated with divergent popular and electoral votes, then they need to find common ground with conservatives. Expanding the House of Representatives appeals to the conservative principle of fidelity to the constitution and the first principles of our nation. I see no reason, apart from pure partisanship, for a conservative to oppose such an idea.

About Evan Schrage

view all posts

Evan is a law student at Loyola University Chicago. He graduated from Michigan State University in 2015, where he was a member of the College of Social Science's Political Science Scholar Program. You can follow him on Twitter: @EvanSchrage