As 2020 presidential candidates begin to declare their intentions, it’s time to think about what we’ll be doing after the polls close on Election Day. We won’t be counting votes. We’ll be counting states.
Twice in recent memory, the person elected president lost the popular vote but won the presidency in the Electoral College. Americans accepted this without any meaningful protest. We shouldn’t have.
The standard explanation (here, here and here) for the discrepancy between the popular vote and the election of the president is that the difference in state populations is not reflected in the number of electors each state has in the Electoral College. Each state’s set of electors consists of its two senators plus the number of representatives the state has in the House. California is the most populous state and Wyoming is the least. Because each elector in California represents 3.18 times as many people as each elector in Wyoming, the standard explanation tells us that Wyoming has 3.18 electoral votes to each one of California’s.
But the standard explanation is wrong. The disparity is far greater than this.
The total number of each state’s electors is not the relevant number in this calculation. The House electors don’t contribute to the disparity, because the House is apportioned between the states by population. The disparity is entirely due to the fact that each state, large or small, has two senators. The reason the popular vote diverges from the Electoral College vote is that each voter in Wyoming has more voting power in the Senate—and so in the Electoral College—than each voter in California.
Here is the proper calculation. California has 25,002,812 eligible voters and two senators. Wyoming has 434,584 eligible voters and two senators. Carol’s voting power in California’s Senate delegation is diluted because she shares it with 25,002,811 other voters. Will’s voting power in Wyoming’s Senate delegation is also diluted because he shares it with 434,583 other voters. Since Will’s voting power in the Senate is less diluted, it’s greater than Carol’s voting power in the Senate. If Carol has one vote in the Senate, how many votes in the Senate does Will have?
Leaving out the irrelevant electors from the House, this is essentially what happened in the Electoral College after the 2016 presidential election: “Carol from California casts her vote for Clinton; Calvin from California casts his vote for Clinton… Will from Wyoming casts his 57 votes for Trump; Wanda from Wyoming casts her 57 votes for Trump…”
So let’s stop talking about states voting for the president. Let’s be clear. Each voter in California has one vote for president, but each voter in Wyoming has 57, a voter in North Dakota has 44, a voter in South Dakota has 39, a voter in Montana has 31, and a voter in Nebraska has 18.
In 2016, disappointed Democrats focused on Hillary Clinton’s surprising losses in Pennsylvania, Ohio, Michigan and Wisconsin. That wasn’t the problem. The problem was that each voter in New York cast one vote for president compared to each voter in Wyoming casting 28; each voter in Illinois cast one vote for president compared to each voter in Wyoming casting 21; and so on.
Those numbers are not only radically unequal, they are unrepresentative. Residents of the central states are, broadly speaking, more white, more religious, older and hold fewer college degrees than the residents of larger states.
Defenders of the undemocratic Senate argue that it was designed to be more deliberative and less reactive to the transitory popular impulses reflected in the House. Granting an equal number of senators to each state, however, was done only to entice the smaller original states to ratify the Constitution. Small states’ greater power in the Senate has no connection to the quality of the Senate’s deliberations—or the quality of the president.
The greater power of small states’ voters is sometimes defended on the ground that these states have unique interests because of their agricultural economies. But agriculture is a major part of the economies of California, New York, Illinois, Florida and Texas. Another defense—the claim that the “Heartland” values of these citizens deserve greater representation—is completely indefensible in a democracy. Rural citizens are not more American than urban citizens.
Many bemoan polarization in American political life, but there is something much worse going on. The more polarized we become, the more the Senate and the Electoral College distort democracy. This is indefensible, and, ultimately, unsustainable.
Kyron Huigens is a professor of law at the Benjamin N. Cardozo School of Law at Yeshiva University.