Mr. Spock

Mr. Spock would know better!

Imagine landing on Earth from some other planet, and finding that the candidate receiving nearly three million fewer popular votes than his challenger in an election became President of the United States. On top of that, significant majorities of Congressional or state legislative seats could go to one political party in states with fairly even party registration numbers, while states with less than a million people get the same number of U.S. Senators as a state with 39 million people. Anyhow, it’s easy to guess what Mr. Spock would say – “It’s not logical, Captain.”

Of course, I’m completely aware that many types of change we might need to create fairer electoral processes would require lots of work, or even amending the U.S. Constitution, which is very difficult – and probably difficult with some good reason. Still, there could come a point at which enough Americans finally realize our system is unacceptable, and if we think about solutions now we might have proposals that are ready for prime time when that point hits. Here are a few of my observations on parts of our system basically designed in the late 1700s that were impressive hundreds of years ago, but nearly laughable in our modern world.

U.S. Senate: “Republic” Does Not Excuse Extreme Inequality

Wyoming has the nation’s smallest state population (585,501 according to Wikipedia), while California has the largest (about 39,497,000), but both states get exactly two Senators. This means Wyoming has about 292,750 people per Senator, while California weighs in at about 19,748,500 – roughly 67 times more people per Senator. In fact, the 2010 census showed 31 U.S. cities with a larger population than Wyoming. Of course, Texas and New York are also grotesquely less represented per capita in the Senate than the smaller states, and I don’t just want to call out Wyoming – six other states had less than a million people in 2010. Obviously, a host of other larger states are also many times less represented in the Senate than smaller states.

Hamilton: A genius for his time – 230 years ago

You will never catch me saying that the original U.S. Constitution was not basically brilliantly designed, but the Senate’s a place where time has passed parts of its original intent by. Alexander Hamilton in the 1780s saw the Senate as a check on short-term political passions, designed to counterbalance the House. Originally, Senators were appointed, not elected, and there was talk of appointing them to lifetime terms to provide stability in the government before settling on six-year terms – as opposed to House members being elected for two-year terms, since in theory the House is seen as a body more prone to the changing nature of public opinion.

But today, there is plenty of skepticism over the notion that the Senate deserves its reputation as “the world’s greatest deliberative body.” The 17th Amendment changed the appointment system to a popular vote, making senatorial elections also prone to the changing nature of public opinion and the influence of political messaging machines – or even, say, a misleading Denver Post endorsement editorial. I’m not the harshest critic of today’s two-party dominance, but who can deny that senators and representatives alike of both major parties today take in partisan direction from interest groups and donors, and then vote accordingly at very high percentage rates?

Fast-forward to 2017 and the multiple votes on bad health care bills designed to repeal Obamacare – and you can’t help but see that the per capita disproportion in the Senate is a real problem (the House has its issues too, coming up next). The Senate was literally within a vote or two of passing legislation opposed by most Americans, legislation that would have left tens of millions without health care coverage. I’m cherry-picking here, but this poll showed just 12% support for one Senate bill, and anecdotally most polls I saw had support for Republican bills somewhere in the teens or 20s. So, anti-Obamacare sentiment in red states of small population had vastly more power in the Senate than the real concerns in California, where one CBO estimate suggested more than 2.5 million people would lose coverage – about four times the total population of Wyoming. Thankfully, Senator John McCain and a few Republican senators bucked the party on various iterations of the GOP health care bills, but as of late November 2017, it still remains to be seen if about 50 people in the Senate (plus a rubber stamp tiebreaker vote from Vice President Pence if needed) will still have the power to take health care coverage from millions through the “tax reform” bill. The last sentence was not to gloss over that current estimates say the 2017 proposals would also increase taxes on the poor and grant more wealth to the already wealthy.

I believe there are some interesting good points to be found in both small-r republican forms of government and small-d democratic forms, but when it comes to the U.S. Senate, the representation per capita by state is just too far out of whack to provide fairness for the nation as a whole, especially when it comes to voting on legislation.

Gerrymandering: Rendering Peoples’ House the Party’s House


Gerrymandering: Odd-shaped districts designed for political advantage

In 2011, Pennsylvania voter registration showed Democrats a few percentage points ahead of Republicans, and Obama would win the state in 2012. However, Pennsylvania partisans created new post-census Congressional districts that could have been favorable to Republicans in 12 out of 18 districts. By loading up certain districts with people registered to a certain party, it’s possible to keep registration majorities for the other party in other districts, but the practice of “gerrymandering” for partisan advantage is completely antithetical to the notion of fair representative government. It needs to end.

After each census, states undergo processes to redraw district boundaries, and in Colorado they’re known as redistricting for Congressional districts, and reapportionment for state legislative districts. However, in many cases it’s a very political process, so obviously states with single-party legislative dominance can create districts to their advantage unless the courts step in. In Colorado, the last four redistricting processes had to go to the courts, and in 2003, the ultra-conservative Senate President John Andrews used his political majority in a strategy known to this day as the “Midnight Gerrymander,” though his handiwork eventually was defeated in court.

To be clear, I don’t want to insinuate that only Republicans could be seen as attempting to game the process. I worked at the Colorado State Capitol during redistricting in 2011, and accusations went out that certain Democratic map proposals would have favored then-Senate President Brandon Shaffer or future Senate President Morgan Carroll in their runs for Congress (though both candidates were defeated). Former state Representative B.J. Nikkel was actually drawn into a completely different House district. I practiced with the state’s redistricting software in 2011, and will say that it’s reasonably easy to create a map with basically equal population among the districts, but it gets complex and heated when you factor in issues like political registration, race, city/county/neighborhood boundaries, and where legislators or candidates live.

Nonetheless, people interested in fair political representation should be extremely wary during redistricting and reapportionment, especially if we are unable to change our processes in the near future. In State reapportionment, it’s important to remember that majorities in the state houses can certainly influence maps presented for Congressional redistricting. You’d like to hope the courts would strike down unfair maps, but the first step is getting the maps passed at the state level and there’s no guarantee of another successful step. I will watch with great interest the proceedings of Gill v. Whitford, the challenge to Wisconsin’s most recent redistricting for its state House, but have some concern as to how the conservative 5-4 U.S. Supreme Court majority will handle this case. And of course, you have to consider the roles of the U.S. Senate and the Electoral College in the process of deciding who sits on the Supreme Court, since it’s quite obvious that justices are now nominated and seated primarily only if their political ideology is acceptable to those in power.

The numbers of U.S. Representatives per capita are not as divergent as with the Senate, but it still ranges from 527,624 people per representative in Rhode Island to 994,416 in Montana (it’s not lost on me that Montana’s at a disadvantage here). This is hardly equivalent to “one person, one vote,” but perhaps a more concerning number is that nationwide it averages about 711,000 people per district. Who can effectively represent this many people? I once worked for a State Senator who represented about 143,000 people, and I will attest to the volume of input we received and the difficulty of giving attention to everyone with needs or interest in various issues.

People per Rep

The number of people per U.S. Representative is too high to allow real representation

The U.S. Constitution actually still says “the number of Representatives shall not exceed one for every 30,000 persons,” and of course there’s no danger of violating the Constitution on that front. In 1929, Congress passed a bill saying the House was “not to exceed 435 members,” but the U.S. population has increased from about 123 million in the 1930 census to about 325 million today – not far from tripling, with no change in Congressional representation numbers. Colorado’s Congressional districts average around 740,000 people. I worked for the 2016 campaign of Gail Schwartz in Colorado’s 3rd District – which takes up about half of Colorado’s land mass (a huge state to begin with), and she probably used up half the life of a decent car over about six months trying to meet people and attend events. It’s no wonder that very few Americans really feel represented in Congress, and it’s probably far past time to look at the district numbers and gerrymandering as serious concerns.

Electoral College: A “College” Today as Trump U was a “University”

I would support the National Popular Vote proposal over our current system, in which the winner of the national popular vote would become President if enough states totaling a sufficient number of electoral votes adopt the proposal. But I won’t hold my breath. I worked at the Colorado State Capitol in 2009 when a National Popular Vote bill was introduced, but it faced strong opposition and never came to a recorded vote in the Senate despite passing the House. As it stands today, only 11 states have adopted NPV, but we’ll see if interest increases given the results of the 2016 election. I believe it’s an attainable solution though it will probably take significant time, and it’s possible to implement without abolishing the Electoral College since states have the right to determine how their electoral votes are allocated.

Faithless electors

States in red have laws against “faithless electors”

The Electoral College was originally intended in part as a check on potentially misguided popular opinion, since electors were given the ability to cast their electoral vote for a different person if they had concerns about the fitness for office of the winner of a popular election. It’s a near-meaningless possibility today, given that a number of states (including Colorado) have laws requiring electors to vote for the winner of the state’s popular vote. In a non-scientific statement, it’s hard to imagine electors using their power to swing an election if they couldn’t do it in 2016. A small band of electors, known as “Hamilton Electors,” worked toward creating a deal that could have led to a different Republican taking office, but only seven electors eventually voted for candidates other than the one their state supported (none of which were on the general election ballot). A Colorado elector who refused to vote for Hillary Clinton as state law required was replaced with another elector, and Donald Trump became the nation’s 45th President. I would call the notion that the Electoral College might reverse an election severely antiquated, not worth considering as a possibility any longer.

This leaves us with a fairly undemocratic method of selecting the leader of the free world, whether or not we can call ourselves this much longer. For starters, a state receives electoral votes based on the size of its congressional delegation – Representatives and Senators. As you’ve seen earlier, Wyoming has one Senator per 292,750 people while California is at one Senator per 19,748,500 people. The votes equivalent to the number of Senators account for almost 19% of the total Electoral College votes, again a severely unfair disadvantage to voters in larger states.

Next, most states have a winner-take-all formula for awarding their electoral votes, except for Nebraska and Maine who could split votes based on results in Congressional districts. So, if California provides a huge margin for the Democratic candidate (which they often do), the popular vote margin loses its relative impact in the Electoral College. In fact, the 4,269,978-vote California margin between Clinton and Trump in 2016 was significantly greater than the total population of Wyoming, Vermont, Alaska, North Dakota and South Dakota combined – and total population includes people under 18 plus adults who don’t or can’t vote. A narrow margin in almost any state holds exactly the same power in the Electoral College as a landslide win. The party that narrowly loses in a state gets exactly zero Electoral College votes in most states. Even the states that could split their electoral votes allocate two votes to the state’s popular vote winner, while Maine has only given a candidate other than the state’s popular vote victor one electoral vote since 1972, with Nebraska also at one electoral vote, though their system has only been in place since 1996.

And that’s how a person can lose the popular vote by 3,000,000 votes and still win the election. It’s also how we’re looking at loss of environmental protections, loss of net neutrality, packing of the courts based on ideology, tax breaks for the wealthy at a time of historic highs in income inequality, threats to health care coverage, and so much more when majorities of “the people” probably oppose what Congress and the Trump administration are doing in 2017. There is no longer an effective check and balance in the Electoral College against a worrisome candidate, and the numbers potentially veer far away from a fair representation of the will of the people. The Electoral College was an interesting idea when first envisioned, but it makes no logical sense anymore and ought to be scrapped.

Ideas For a Fairer Future

As I mentioned at the start, I have no illusion that anything listed below will be easy to accomplish, let alone the best solution. But at bare minimum, I think we need to start looking at ways to even out the numbers so our electoral decisions will better reflect the will of the people.

* Support National Popular Vote: The Electoral College is really not useful if Electors can’t decide the popular vote winner is unfit for office. Winner-take-all state elections give all electoral votes to one person even if the margin is narrow, as it was in 2000 when Bush took nearly five percent of the Electoral College by winning Florida by 537 votes – an infinitesimal margin for such a large state.

Rings of Saturn

Ultra-high quality image: Wave structure of the Rings of Saturn

We have the technology to take incredible pictures of the Rings of Saturn, yet we leave the Presidential election up to an arcane system in which the loser of the popular vote can win it all. It’s time for a change, and in my opinion folks should pressure their state legislators to make that change by switching to National Popular Vote. The executive branch holds so much power over the direction of the courts and the nation, and deciding on a President is far too essential to leave up to the results of a severely outdated system. The smallest states would probably be right if they complained about losing their proportional advantage from the current Electoral College scoring, but it’s unfair for so much of the nation, and under the NPV system every American’s vote for President would count for exactly one vote.
* Take Politics out of Redistricting: I mean completely. All federal and state legislative districts should be defined through a nonpolitical process. Otherwise, we’re stuck with a system in which political parties can literally perpetuate their own dominance. I live in Boulder, CO, and might recommend contracting for a new redistricting system with a scientific entity like the National Institute of Standards and Technology (NIST), which has a campus in Boulder and has also done work on elections technology. Guidelines should include adherence to the principles of the Voting Rights Act; complete elimination of gerrymandering; an adequate period of public comment; and that the final results should produce political balance by district as close as possible to actual voter registration.
* Redistrict The Nation: This one might sound a bit radical, but maybe our arbitrary state boundaries don’t always have to be a deciding factor in federal representation. Throughout our history, state boundaries have been established without any sense of numerical equality among states. Look at the boundaries of Colorado and Wyoming, and you see rectangular states with no physical reason, like a river or mountain range, for the existence of a boundary. Hamilton certainly never predicted gigantic states like California or Texas. Perhaps we could draw federal district boundaries based on nearly equal population regardless of state boundaries, with a requirement in place that each state gets some representation in both the House and Senate. With the operation of the federal government the primary concern of a congressperson, it shouldn’t be a hardship for some of them with districts straddling state boundaries to consider the interests of more than one state. In state government, districts can include more than one county and counties can be divided – and there’s really no operational reason that crossing state boundaries couldn’t work in practice at the federal level.
* Today’s Numbers and Boundaries Aren’t Sacred: At 711,000 people per Congressional district, it’s time to cut that number down substantially. People have a fair point if they say a 435-person House is a bit unwieldy, but adding a manageable number of representatives probably wouldn’t make that big of a difference. Having 100 senators is a nice, round number, but just adding one senator to some of the larger states could help with the fairness issue without additional major changes. Splitting some of the larger states, if only into several districts in which to elect U.S. Senators, could also help with the fairness issue. In Colorado’s State Senate, each senator basically serves the same number of people regardless of how many counties are in the district, and this equality is in my opinion much fairer than what we have at the federal level.

Anyhow, thanks for reading, and you get bonus points if this helped you think about the future of our political systems!