In the wake of the controversies and problems surounding the 2020 Presidential Election, and the Presidential Elections of 1960, 2004, 2000, and 1876, it is time to make a serious effort to change the rules.
While there is a lot of demand for the elimination of the Electoral College, and using the popular vote, there is no chance of accomplishing that prior to establishing a National Voter Registry and adopting uniform standards for the conduct of elections for every State.
As a compromise, this amendment keeps Electoral Votes but eliminates the Electoral College. It eliminates winner-take-all awarding of Electoral Votes by States and replaces it with awarding Electoral Votes by House District. Both Conservatives and Progressives get concessions on matters of ballot access, voter registration fraud, and election security.
This amendment leaves both sides better off, and it will eliminate the possibility of repeating the drama experienced from November 4, 2020 through January 6, 2021.
The Amendment Text for Reforming Electoral College
The text of the amendment is in quotes, and the commentary follows:
Section 1. Powers and Eligibility of Voters
The following shall be an Eligible Voter for any election for Federal or State office: every living Citizen of the United States who has attained eighteen years, and who is not in prison, and who has not been denied by a Court the legal capacity to participate in legal proceedings or transactions, and to be responsible for their decisions or acts. The Eligible Voters are vested with the power to elect the President and Vice-President through the assignment of Electoral Votes to a Candidate by casting ballots in an election.
Progressives will be pleased that persons with prior prison sentences shall be allowed to vote. This section establishes that the voters, not an Electoral College, have the power to elect the President. Conservatives are pleased these are not direct elections counting votes across the States on a National basis. The compromise is that voters will choose Electoral Votes by House District and by State. Conservatives are also pleased that only Citizens may vote in Federal or State elections because Progressives have repeatedly attempted to give non-Citizens the right to vote.
Section 2. Federal Election Agency
Congress shall establish an Election Agency that continuously collects information from every State, District, and Territory of deceased and newborn persons. Upon establishment of this Agency, it will compile records of deceased and newborn persons for at least thirty years prior to the date of ratification. The Agency shall publish this information daily so that States may continually remove deceased persons from their voter registration lists.
The Election Agency will assist States with cleaning up their voter rolls of deceased persons. Conservatives will not like seeing the creation of a new Federal Agency that could interfere in State elections, but their fears should be allayed by the protections against this interference in Section 3.
States shall submit their voter registration lists to the Election Agency for review, and the Agency shall notify States of deceased, duplicate, ineligible, or fraudulent persons registered to vote in their respective States.
This codifies the ERIC project. ERIC is a voluntary association of States that try to clean up their voter rolls, but not all States participate. Collating every State’s registration list at the National Level will detect persons who moved out of State. If the Agency can compare databases containing Citizenship, age, and residence of persons, then they can offer further assistance for cleaning up the voter rolls.
Section 3. State Powers To Register Voters And Run Elections
Every State shall enact laws establishing and modifying the registration list comprising its living Eligible Voters who are Citizens of that State and who are eligible to vote in a particular district for a member of the House of Representatives. States must authenticate the age, residence, and Citizenship of any person added to their voter registration list subsequent to the ratification of this Amendment. States must publish a report every month listing every voter removed from and added to their registration lists, The States must disclose the evidence used as cause for removal, and they must enumerate the documents used to authenticate the age, residence, and Citizenship of any person added to the list.
For all the voters already on a State’s registration list at the time of adoption of this amendment, voters won’t be burdened with proving their eligibility. However, new voters added to the list will have to provide this documentation. Progressives are concerned that Conservatives remove Eligible Voters from the voter rolls so this section provides protections against these occurences, and provides public notification and accountability.
These laws must not violate this Constitution. Congress shall make no laws regulating the States’ voter registration and how ballots shall be cast by the voters or counted by the State. States shall adopt criteria for accommodations of Eligible Voters who are blind or otherwise unable to utilize a standard ballot.
The option to vote by mail shall be guaranteed, but no State may send an unsolicited mail-in ballot to an Eligible Voter, nor may it compel an Eligible Voter to vote by mail. No State may permit ballots to be collected and deposited by persons who are not related by blood or marriage to the voter or by those who are not State Election Officials.
The design, methods for marking and counting ballots for in-person votes shall be uniform across the State. The design, methods for marking and counting ballots for mail-in ballots shall be uniform across the State.
Progressives insist upon proper accommodations for handicapped voters. They also oppose efforts by Conservatives to eliminate mail-in ballots so this option is protected. However, Conservatives’ concerns are addressed with the prohibition against unsolicited mail-in ballots and ballot harvesting. Unfortunately, Oregon would have to offer in-peson voting and not conduct exclusively mail-in ballot elections. Even though Congress is prohibited from regulating the States’ elections, the safeguards in the Amendment provide all the regulations that Progressives and Conservatives have been seeking. The prescription for uniform ballots across the State is for avoiding the mess that we saw in the 2000 Presidential Election in Florida where every county had its own ballots and procedures for counting hanging chads, etc.
No State Legislature, Executive, or Court shall change these laws and regulations later than sixty days prior to the Final Voting Date or sooner than ninety days after the Final Voting Date.
This section pleases the Progressives who worry about the Independent Power theory promoted by Professor John Eastman asserting that the State Legislatures could over-rule findings of the Secretaries of States certifying election results by the voters.
Section 4. Rules For Federal Election Dates And Vote Counts
The Final Voting Date in a Federal Election shall be the first Tuesday following the first Monday of November in every even-numbered year. In-person voting must be with secret ballots. Voting in person shall be offered on the Saturday, Sunday, and Monday prior to the Final Voting Date, and on the Final Voting Date. No ballots submitted sooner than fifteen days prior to the Final Voting Date, and no ballots marked after the Final Voting Date shall be accepted or counted by the States.
This standardizes the dates over which voting can occur across the nation. A four-day in-person voting period gives persons who have difficulty voting on a weekday the opportunity to vote on the weekend, something Progressives have been demanding.
Section 5. Audit Trail For Federal Vote Counts
The number of ballots cast and the source of votes for candidates shall be recorded by precinct. Each House District shall contain no fewer than one-hundred precincts for the exercise of in-person voting.
The tabulation of votes awarded to each candidate shall not commence prior to the announcement of the total number of ballots accepted. The tabulation of mail-in ballots shall not commence prior to the tabulation of in-person ballots. The identities of Eligible Voters who cast in-person ballots shall be collated with the identities of un-opened envelopes containing mail-in ballots so that un-opened envelopes that repeat voting of an Eligible Voter shall be excluded prior to tabulation of the mail-in ballots. The total number of excluded ballots shall be deducted from the initial total number of ballots announced to yield a revised total number of ballots. No additional ballots shall be eligible for tabulation once the revised total number of ballots is announced.
Differences in the number of votes awarded to all candidates and the revised total number of ballots accepted shall be reported by precinct. If the total number of votes awarded to all candidates for an office exceeds or is less than the number of ballots accepted by an amount that could have changed the outcome for a particular office, then the State shall hold another election for that office for voters in those precincts and House Districts with these material differences.
This section requires the persons running elections to adopt stringent procedures to protect against the casting of multiple ballots cast by a single voter, dumping of fake ballots or the destruction of legitimate ballots. Delaying the processing of ballots to count votes until after the announcement of the total number of ballots accepted will thwart most schemes to throw an election. Minimum of 100 precincts per district ensures that you minimize occurrence of long lines at certain polling locations.
Section 6. Tabulation of Electoral Votes
The State shall tabulate the votes for President and Vice-President by district of the House of Representatives. The candidate receiving a plurality of the votes in a district receives one Electoral Vote. The candidate receiving a plurality of the votes in the entire State receives two electoral votes. The candidate receiving a plurality of the votes from Citizens of the United States eligible to vote in the District and Territories receives four Electoral Votes. Every State, District, and Territory shall preserve every ballot cast so that they may be available for a runoff Electoral Vote Count.
This eliminates the winner-take-all method for awarding every Electoral Vote in a State to one candidate. It gives people in deep Red or Blue States a reason to vote if they know their candidate could at least win the Electoral Vote awarded in their district. The best way to reduce the discrepancy between Electoral Votes and Popular Votes is to increase the number of House Districts from the current 435 Seats. Instead of the 3 electoral votes currently assigned to Washington, DC, I add a fourth vote to allow for the inclusion of voters in the Federal Territories. This gives us 539 Electoral Votes so we cannot get a tie.
Each State, District, and Territory shall certify its election results and tabulate the Electoral Votes no later than forty days after the Final Voting Date. It shall transmit the Electoral Vote count to the Chief Justice of the Supreme Court no later than forty-two days after the Final Voting Date. If a State fails to transmit the Electoral Vote Count, then the Federal Government may seize all the ballots and assume responsibility for tabulating the votes, and postpone the Electoral Vote Count. Congress shall enact laws to penalize any persons obstructing the tabulation and reporting of votes or the destruction of ballots.
States are given a deadline for counting the ballots and reporting the results. The federal government can step in if necessary.
Section 7. Certifying President-Elect With Electoral Vote Majority
The Chief Justice shall tabulate and report the Electoral Vote counts from every State. If one candidate received a majority of Electoral Votes, then the Chief Justice shall certify the President-elect and Vice-President-elect as the winners.
Let the Chief Justice replace the Vice-President for this ceremonial role.
Section 8. Certifying President-Elect Without Electoral Vote Majority
If no single candidate received a majority of Electoral Votes, then the Chief Justice shall certify the two candidates receiving the most Electoral Votes as participants in the runoff election. Then each State shall conduct a runoff Electoral Vote Count using the ballots already cast for the two candidates certified by the Chief Justice, and exclude the ballots cast for the other candidates. The States shall tabulate the votes by district of the House of Representatives and for the entire State. The candidate receiving a majority of votes in a House District receives one Electoral Vote. The candidate receiving a majority of votes for the entire State receives two electoral votes.
Instead of allowing the delegations from the House of Representatives to each cast one vote when no one wins a majority of Electoral Votes, this method would be considered much fairer by most. This Amendment retains Electoral Votes without the Electoral College. Opponents will claim that there should be a run-off election between the top two candidates, or there should be rank-choice voting. I believe that these options weaken political parties even more than they have been during the past 60 years. These alternatives give even more strength to personal popularity over adherence to a Party Program.
The Chief Justice shall review the population counts for each State as reported by the most recent Census and tabulate the size of the population represented by the States where a Candidate received the most votes. The Candidate who won States representing the larger population shall be awarded one Electoral Vote whenever there is an even number of Electoral Votes.
Currently, there are 538 Electoral Votes so you could have a tie-vote of 269 Electoral Votes for each Candidate. This is a fair method for breaking the tie. However, with four votes now going to Washington, DC and the Territories, there are 539 Electoral Votes so no reason to use the tie-breaker until new States are added.
Then the Chief Justice shall tabulate the Electoral Votes and certify the Candidate receiving the majority of Electoral Votes as the President-Elect.
Section 9. Redistricting House Districts
Using my formula for allocating Electoral Votes, in 2016, Trump would have won 290 (230 House + 60 Statewide) and Hillary would have won 248 (205 House + 44 Statewide + 3 for District of Columbia). In 2020, Trump would have won 263 (211 House + 52 Statewide) and Biden would have won 275 (224 House + 28 Statewide + 3 D.C.). My formula seems to have the Electoral Vote count more closely match the popular vote than a winner-take-all system used in most of the States.
However, Progressives have a serious beef about Gerrymandering, and observe that the performance of Republican presidential candidates capturing Electoral Votes is not proportional to the popular vote. They argue for using a popular vote count. However, absent a National Voter registry used for all elections and conducting elections that are run in a uniform manner in every State by a Federal Authority, Conservatives will not accept the use of the popular vote. In addition, Republican candidates currently win a majority of the States and so they get that advantage in the Electoral College, along with redistricting of House Districts that currently favors the election of Republicans. Besides, States like California have extremely lax voter registration requirements so adding votes across States is like adding apples to oranges to equal bananas. Democrats have to offer a concession to Republicans to bring them on board to stymie the Gerrymander.
As a compromise, I propose the following method:
Each State shall enact laws in accordance with their State Constitution to assign responsibility for drawing boundaries for every district represented by a Member of the House. The total number of House seats is allocated to each State based upon the enumeration of Citizens in every State.
Instead of counting every person, including illegal aliens/undocumented persons for redistricting, we only count Citizens to more accurately represent the number of likely eligible voters. This is a concession to Republicans in exchange for their agreement to change how redistricting in performed. This also supersedes Article 2, Section 1 that says “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….” You could have a Citizens Commission or other body, besides the Legislature, tasked with this responsibility. The Supreme Court case Cooper v Harris concerning North Carolina’s gerrymandering practices would become moot.
These district boundaries shall be subject to the following requirements:
The difference in the population of Citizens between the House district with the most and least number of Citizens within that State does not exceed one-twentieth of the total population of Citizens residing within the smallest district.
The perimeter of a District’s boundary must be inside one State and may not be enclosed inside another District; this perimeter must be continuous, and unbroken by another District boundary.
You could assign a computer program to generate various maps using these conditions and allow a committee to pick one of the randomly generated options. These conditions remove a lot of discretion required to effectively gerrymander a State into Partisan Pieces. While some specialists use a Reock Score, I adopt a different version. Recognizing that a beehive with equilateral hexagonals minimizes the length of perimeter boundary lines (wax walls separating honey combs) in States with more than 5 districts, I adopt the minimization of the perimeter boundaries as a ranking criterion. The Reock uses a circle as the standard, but you cannot create a Map with multiple adjacent districts using only circles. Hexagonals would be the most efficient shape to use with more than 5 districts. But with odd-shaped State Boundaries, and other criteria to consider (like municipal and county boundaries, rivers, lakes, mountains, and other physical boundaries), you cannot impose a single mathematical standard. However, you can establish a way to rank Maps with each other to eliminate the most egregious forms of gerrymandering.
If one-third of Members of the State Legislature vote against the first Map submitted for a approval of the Districts for Members of the House of Representatives within a State, then these opponents must offer an alternative map with at least one-twentieth shorter length of the sum of perimeter boundaries no later than thirty days after the vote. Then the approved Map shall be selected in a random process with the odds of selection based upon the number of Legislators who voted for and against the first Map.
This process ensures that discussion and consensus between Members of the Legislatures will occur to minimize the opposition from one-third of the Members. The opponents of the majority-selected Map are constrained to offer an alternative that has significantly shorter boundary perimters. Provided they could draw such a Map, then the winning Map will be subject to a random drawing where the minority Map could win. Unlikely, that the majority would bring the first Map to a vote without knowing in advance that no more than one-third would oppose it.
No information about the voting history or Political Party Membership of Citizens at any level shall be considered. If the State fails to submit a district map six months prior to the first Federal Election held at least one year after completion of the Census, then the task for redistricting shall be assigned to a committee of five Citizens appointed by the Chief Justice. These appointees must have attained thirty-five years and may not be holding any State or Federal office. Their compensation shall be equal to a member of the House of Representatives and shall not exceed six months.
This is the key mandate that eliminates the ability to execute an empirically-based, rational gerrymander strategy. Hard to say which party would benefit the most from these rules.
I’m not sure how these rules impact the representation of African American voters for having an advantage of electing African American representatives to office. Because African American voters tend to be concentrated in urban areas, I believe that it would be harder to partition districts of Black voters with the hexagonal district guideline because you cannot easily adopt odd shaped, squiggly districts that would disperse and dilute their voting strength. Following these guidelines should be a Safe Harbor against any claims of racial discrimination against the body in charge of redistricting.
Section 10. Admitting New States
New States may be admitted by a two-thirds majority vote of Congress. No new State shall be or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the consent of the Legislatures of the States concerned, as well as of a two-thirds majority vote of Congress.
Democrats have been threatening to admit Puerto Rico and Washington, DC as new States for the purpose of adding four additional Democrat Senators. Democrats must make this concession to entice Republicans to surrender their current advantage in the Electoral College. Republicans would be wise to accept it now to avoid the disadvantage they could face at a future date with an emboldened Democrat majority in Congress. We shouldn’t make the admission of New States to the Union a matter of political gamesmanship so this is a sound reform.
Section 11. Voters in the District of Columbia and the Territories
The twenty-third article of amendment to the Constitution of the United States is hereby repealed. Eligible voters in the District constituting the seat of Government of the United States and its Territories shall vote in the Elections for President and Vice-President to assign four electoral votes.
Currently, Washington, DC has 3 Electoral Votes thanks to the 23rd Amendment. This Section repeals the 23rd Amendment and boosts the number of Electoral Votes from 3 to 4. American Citizens, eligible to vote, in Puerto Rico, Guam, and other territories will now be able to vote in Presidential elections. Their votes will be combined with Washington, DC. Likely that the Democrats pick up an additional Electoral Vote for President. Also, that means there’s 539 Electoral Votes so you wouldn’t have any more ties with the current slate of 50 States and 435 House Seats. That’s a Republican concession.
Conclusion
In its next term, the Supreme Court will hear the case Cooper v Harris concerning North Carolina’s gerrymandering practices. This amendment would would make that a moot case. However, if the Court made a ruling pertaining to the Independent Powers theory over how Presidential electoral votes are awarded, then this Amendment would supersede that decision, too.
Everyone recognizes the confusion caused by the Electoral Count Act of 1887, and reforms need to be made there. Why not just solve both problems with one amendment instead of re-running the same bad movie during the next election for President in 2024?