Frank Bernheisel: The View From Here
Frank Bernheisel
Frank Bernheisel
Posted 10.08.20
Just Outside Washington



The Constitutional Convention took place in Philadelphia from May 25 to September 17, 1787. Our Founders made many compromises to achieve the Constitution ratified in 1789. Some of these compromises, which worked in 1789, have outlived their usefulness, for example: "Representatives and direct Taxes shall be apportioned... by adding to the whole Number of free Persons ... and excluding Indians not taxed, three fifths of all other Persons.", which was modified by the 13th Amendment. As we race toward a presidential election, maybe we should consider other revisions.

When we look back at the last five elections, we see that three were won by a person who had fewer votes than the opponent. That is because of the Electoral College, which many are discussing. What is the Electoral College? The Constitution says:

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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

It goes on to say that the Electors in each state shall vote and send the results, in a sealed envelope, to the President of the Senate. The Constitution goes on to say:

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President....

So, the total number of Senators and Representatives is 535, 100 Senators and 435 Representatives, determine the number of Electors in the Electoral College, i.e. 535 Electors cast ballots. However, in 1961 the Twenty-third Amendment was adopted, which entitled the District to the same number of electoral votes as that of the least populous state in the election of the President and Vice President. That is three, bringing the Electoral College to 538 Electors.

So, what is wrong with this picture?

The 538 Electors cast ballots. Sounds fair, but it is not. For example, California has two Senators representing about 40 million persons, and Wyoming has two Senators representing about 0.6 million persons.* That results in giving each person in Wyoming a much greater say in the Presidential election than each person in California.

But wait, there is more!

The number of voting seats in the House of Representatives was capped at 435 by the Reapportionment Act of 1929 and every state gets at least one Representative, which makes the bias in the Elector worse. California was allotted 53 Representatives, based on the 2010 Census, that is one for every 755,000 persons, Wyoming has one Representative for its 600,000 people. Looking at the number of Representatives and population in all states, there are 25 states with even more than California's 755 persons for each Representative. On the flip side, there are 24 states that have less than 755 persons per Representative.

So does under-representation cancel out over-representation; I think not.

Growth in population dilutes the representation of each person in a state after the Census and reapportionment. (And population decline increases the representation.) For example, Montana, because of its high rate of growth, now has over 1 million persons per Representative. We look to the 2020 Census to resolve some of the disparity in representation per person but the cap of 435 Representatives as the country grows, means that the bias will just move around and not be resolved.

The clear solution to the problem is to do away with the Electors.

The National Archives reports that over the past 200 years more than 700 proposals have been introduced in Congress to reform or eliminate the Electoral College -- without any becoming law. This is because the Electoral College is constitutionally mandated and abolishing it would require a constitutional amendment. Unfortunately, this is a long and drawn out process.

For example, the Nineteenth Amendment, which prohibits the states and the federal government from denying the right to vote to citizens of the United States based on sex was initially introduced to Congress in 1878. It finally was approved by Congress in 1919. It took over a year to be ratified by the necessary 36 ratifying states to secure adoption.

The National Popular Vote Interstate Compact (NPVIC) is trying a work around. NPVIC is an agreement among fifteen states and the District of Columbia to award all their electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia. The compact is designed to ensure that the candidate who receives the most votes nationwide is elected President. As of July 2020, fifteen states and the District of Columbia had adopted NPVIC, although it is suspended in Colorado. These states have 196 electoral votes, which is 36 poercent of the Electoral College, and 73 percent of the 270 votes needed to give the compact legal force, provided it is approved by Congress.

In its current session, the Virginia (my state) General Assembly just voted down joining the NPVIC. Some legal scholars have raised questions, which may impede implementation of the compact. These views include the compact will require congressional consent under the Constitution's Compact Clause or the presidential election process cannot be altered except by a constitutional amendment. Given our contentious culture, NPVIC will, most likely, end up before the Supreme Court.

Whatever we do with the Electoral College, that still leaves the Senate with unequal representation. As mentioned above, as of 2019, each Senator in Wyoming represents 300,000 people while each Senator in California represents 20 million people. Unequal in the extreme. Article I. Section 3 of the U.S. Constitution states:

The Senate of the United States shall be composed of two Senators from each State, [chosen by the Legislature thereof,] for six Years; and each Senator shall have one Vote

The part in brackets was changed to the popular election by the people of each state by the Seventeenth Amendment, which was ratified in 1913. To change the number of Senators per state would require an additional amendment.

But first, how did this happen?

The original proposal in the Constitutional Convention was for the Senate to be apportioned by population. The small states such as Delaware, objected. To get the Constitution approved, the Connecticut delegation proposed what is known as the Connecticut Compromise, which resulted in the wording of Section 3. A change in Senate representation would require another amendment. This would run into the same problems the Founders addressed; the states with the smaller population would object. Three-quarters of the states in the United States are required to ratify an amendment; therefore, out of 50 states, 38 states or more are required. There are 14 states with less than two million in population all of which, in my opinion, would refuse to ratify such amendment.

Senate Minority Leader Chuck Schumer has suggested that if Democrats win a majority in the Senate, in the 2020 election, he will introduce legislation to make Puerto Rico and Washington, DC, states.

This would add four Senators from areas, which generally vote Democratic. This would balance the tendency of the more rural states to vote Republican. Not a solution, but a messy work around, but it would level the playing field a bit.

* The population figures are based on 2019 estimates, which will be officially revised based on the 2020 Census.