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posted on 14 November 2016

Constitutional Amendment To Abolish Electoral College? No Way!

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It now looks like Donald Trump won an election in which his opponent had more than a million more popular votes. The total could even reach close to 2 million and possibly even reach that number. This has raised cries for abolishing the Electoral College.

founding.fathers.constitution.380x160

Abolishing the Electoral College would require amending the U.S. Constitution, namely replacing Article II, Section 1 ( as well as modifying the wording of the Twelfth Amendment). Here is Article II, Section 1 of the U.S. Constitution:

Article II

Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

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.

Full presentation of the provisions of the U.S. Constitution and amendments related to voting for president and vice president is available here.

The process for amending the U.S. Constitution is specified by Article V of the Constitution

Article V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Summarizing, passing an amendment to the U.S. Constitution requires the following to occur:

  • Approval by at least 2/3 of the House of Representatives.

  • Approval by at least 2/3 of the Senate.

  • Ratification by at least 3/4 of the states (legislature or state convention, established by the legislature of that state, which could include public referendum).

Note: The approval of the House and Senate is not necessary if 2/3 or more of the states petition for a constitutional convention.

With regard to the Electoral College that is prescribed by the Constitution, it seems inconceivable that 2/3 of either house of Congress would vote to abolish under most circumstances because 2/3 majority in either house is quite rare and has only occurred for both houses at the same time in four years since 1900 (1935, 1936, 1965, and 1966).

The proposal of a constitutional amendment abolishing the Electoral College originating in Congress is extremely unlikely because it is not conceivable that it could be bipartisan.

But, if such an occasion arose that a Congress would send the amendment to the states, it is inconceivable that 38 states (3/4 of 50 is 37.5) would approve it.

The 12 smallest states which currently have an outsized influence on the election of a president would never agree to give that up. I would suggest that it would be difficult to get 1/3 of states (17) to give up their advantage.

The unequal distribution of voting rights in electing a president by the Electoral College system has been discussed in two recent articles:

  1. A Candidate Losing The Popular Vote By 10 Million Could Become President

  2. Some Votes For President Are 'Thrown Out'

A graphic from (2) is reproduced below with horizontal red lines added to divide the states into four groups:

individ.votes.per.electoral.vote.quartiles

There are 13 states on each of the bottom three groups (12 states plus the District of Colombia in the bottom "quartile") and 12 states in the top quartile.

It is reasonable to suggest that few if any of the 20 states below 500,000 votes per Electoral Vote (EV) would ever ratify an amendment that would "devalue" the power of their citizens' individual votes by 40% or more compared to the very largest states.

So I will assert that ratification of an amendment to abolish the Electoral College ever gaining much more than 30 states ratifying is unlikely; getting 38 states to ratify would be impossible given anything like the distribution of power between the two major parties that exists today.

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