t was the end of a long, sweltering summer at the Constitutional Convention in Philadelphia in 1787. Delegates were anxious to finish, but a looming question remained: How would the new office of president be filled? Some delegates wanted Congress to choose. Others wanted popular election. That idea was overwhelmingly voted downit would be “unnatural,” warned one foe. Southern states had extra representation in Congress because slaves were counted in the population, under the grand compromise that allowed the Constitution to move forward; a popular vote would wipe out that advantage, since slaves didn’t vote. Subscribe Online & Save 33%

The delegates referred the mess to the Committee on Detail, which wrote a draft of the Constitution with the Electoral College as a rather convoluted solution. The states would each choose electors, with one electoral vote per senator and House member. That way small states, especially slave states, would have extra clout. If no one got an electoral vote majority, the House of Representatives would decide. Anyway, everyone knew George Washington would be the first president. With a shrug, the Founding Fathers moved on to other matters.

The Electoral College is the exploding cigar of American politics. For long periods of time, it has seemed to work well enough, and so we have treated it like a quaint anachronism with little real impact, little more than a question on the citizenship test and a subject for political thriller novels. Then, every so often, it blows up in our faces, throwing whole elections in doubt and making a mockery of the popular will. On these occasions, most recently the 2000 elections, the foolishness of the system becomes apparent, and demands for reform sweep the land. But the demands always peter out, because the Electoral College is written into the Constitution, and trying to amend the Constitution is just too daunting, and perhaps not even advisable. And so we live with the thing, like an old soldier with a bullet lodged in his spine. It’s too dangerous to remove, the experts say, but it’s capable, under the right circumstances, of crippling us.

Fortunately, politics advances just as medicine does, and there is now a new procedure that could remove the Electoral College without having to amend the Constitution. It’s called the National Popular Vote. It’s a clever, subtle, and nonpartisan fix, one that’s beginning to catch on in a number of states. But before I explain the solution in detail, it’s important to understand just how big a problem the Electoral College really is.

our times in American history, the candidate who won fewer votes nonetheless became president. (Political scientists, with rare concision, call this the “wrong winner” problem.) In 1824, Andrew Jackson won the most total votes, but not enough states to win the Electoral College. The House of Representatives picked John Quincy Adams instead, after an alleged “corrupt bargain” with another candidate. Then, in 1876, Democrat Samuel J. Tilden won more votes than Republican Rutherford B. Hayes, but not an Electoral College majority. The deadlocked election went to Congress. The deal: Republicans got the White House, but Democrats got federal troops pulled out of the South, ending Reconstruction and ushering in more than eighty years of repression of former slaves and their descendants. In 1888, Benjamin Harrison lost the popular vote but won the Electoral College.

And then there was the 2000 election. That year, Al Gore won half a million votes more than George W. Bush. This was a wider popular vote margin than the one by which Kennedy bested Nixonbut Bush won the Electoral College by 271 to 266.

The Florida recount transfixed the nation. Election night was surreal, with the TV networks calling first Gore and then Bush the winner. Then there were the snarled recounts, with local officials squinting at “hanging chads.” There was the “Brooks Brothers riot” of GOP congressional staffers that shut down counting in Miami. And finally came the abrupt and unsigned Supreme Court intervention that stopped the recount and handed Bush the presidency.

Without the melodrama, we would have been shocked by the simple fact that the new president had come in second in the popular vote. Indeed, just before the election, the Republicans had prepared talking points urging their adherents to say the election was illegitimate if Gore had prevailed without winning the popular vote.

Near misses are even more common. In 2004, Bush won the popular vote, but a switch of sixty thousand votes in Ohio would have elected John Kerry. In 1976, the election would have been thrown into the House of Representatives with the shift of a few thousand votes in Delaware and Ohio. Any race could turn on such flukes. And when the House chooses, each state gets one vote, giving empty Idaho the same weight as crowded California. Massive pressure would push lawmakers to back the candidate of their party, not the one chosen by the voters. The resulting political fracas would dwarf anything seen in a century.

But that’s what would happen if the system doesn’t workwhen the runner-up gets the gold medal. The truth is, the Electoral College warps competition and subverts political equality even when it does work.

Because most states are reliably “red” or “blue,” candidates focus nearly all their efforts on a few swing states. As a result, many voters never see a campaign ad, receive more than a perfunctory candidate visit, or experience the mass mobilization of a real campaign. As late as 1976, forty states were tightly contested, including all the big ones. More recently, though, only about seventeen states were in play by November. As BusinessWeek has noted,

Below is a remarkable pair of maps based on a study by the organization FairVote, chaired by former Republican congressman and third-party presidential candidate John Anderson. In the map on the left, the “hands” represent visits by the major-party presidential and vice presidential candidates in the final five weeks before the 2004 election. In the map on the right, dollar signs represent advertising spending by the campaigns during that time.

According to FairVote, “more money was spent on television advertising in Florida … than in 45 states and the District of Columbia combined. More than half of all campaign resources were dedicated to just three statesFlorida, Ohio and Pennsylvania.” Voters in eighteen states, meanwhile, didn’t get a candidate visit or a cent of spending on TV advertisements.

In 2004, ardent campaign boosters from New York never even contemplated going door to door in their own neighborhoods. Instead, they packed buses bound for Pennsylvania or even Ohio, where they canvassed neighborhoods exactly like their own. Imagine, by contrast, a system in which every vote counted equally. Candidates would be forced to appeal to the broadest groups of voters, to campaign where people actually live, and to focus on nationwide turnout.

The Electoral College is such an obvious affront to basic democracy that even its backers have a hard time finding persuasive rationalizations for it. The political scientist Norman Ornstein has argued that “[T]hree (or four) crises out of more than 50 presidential elections is remarkably small.” Few of these defenses, even if true, outweigh the fact that the winning candidate can lose. For example, proponents of the Electoral College say that the system protects the power of states with smaller populations. In a technical sense, this may be true. More accurately, though, the system protects swing states, not small states. Candidates do little campaigning in reliably Republican Idaho or Democratic Rhode Island. Moreover, the focus on states risks confusing legal jurisdictions with actual people. It is far more important for citizens to have their voices heard than that states do. Gun owners or women or students or evangelical Christians live all over the country, but only the ones in Ohio or Florida get wooed and get organized. Supporters also note that the Electoral College helps to create consensus and confer legitimacy by making narrow victories seem wider than they are. That’s true, except for when the system demolishes legitimacy by picking the wrong candidate.

Why not change the Constitution? That solution is obvious, elegant, and very hard. The greatest strides toward democracy have often been achieved through amendments. In fact, five of the constitutional amendments have changed who can vote and how. But to change our founding document, first the House and Senate must both pass the amendment by two-thirds votes, then three-fourths of the states must approve. The machinery of the Constitution is calibrated to discourage a change like this.

We came close in recent memory. The 1968 election scared many voters away from both parties, because the racist independent candidate George Wallace came close to denying an Electoral College victory to the winnerand could have bargained for the presidency with civil rights laws as a chip. In 1969, the House overwhelmingly voted to end the Electoral College system. The two most recent winners of the presidency, Lyndon Johnson and Richard Nixon, supported the move. Only seventy lawmakers voted no. But the measure was filibustered to death in the Senate by senators from low-turnout, mostly southern, states, who worried that their interests would be overwhelmed by black urban voting blocs. A few years later, a similar plan was stymied by new opposition from blacks and Jews, concentrated in large states, who believed that the current system forced candidates to pay attention to them. Logically, it’s hard for both arguments to be right. But even if Congress had been able to pass such a measure, it would then face hurdles in the states, especially the smaller ones, which would lose power in a popular vote.

Since it’s so hard to pass an amendment, people have searched for creative ways to fix things without changing the Constitution. As is often the case, such a meandering route to change can be hard.

In nearly every state, the winner takes all the state’s electoral votes. Democrats are especially strong in California, and thus its fifty-five electoral votes are key to their electoral equations. In 2007, a petition drive sought to put the Presidential Election Reform Act on the California ballot as an initiative. Under its terms, the winner in each congressional district gets that district’s electoral vote. It sounds reasonable at first, but on closer look the arguments for it crumble like a mummy hitting air.

Most simply, to take this step in only one big state would simply siphon off votes from one party, in this case the Democrats. (Hence the GOP lawyers behind the effort.) Columnist Bob Herbert estimates that if this scheme had been adopted in 2004, twenty of the electoral votes that Kerry received would have gone to Bush instead. To make this change in only one state guarantees a partisan imbalance. (North Carolina Democrats were poised to try something similar, but national leaders yanked them back.)

Even worse, a district-by-district vote would put the entire presidential poll at the mercy of creative gerrymandering. Only three of California’s congressional districts are remotely competitive. Newsweek’s Jonathan Alter has observed that “if the idea was somehow adopted nationally, it would mean competing for votes in only about 60 far-flung congressional districtsroughly seven percent of the country. Everyone else’s vote would not ‘count,’ if you want to look at it that way.” The federal Voting Rights Act also mandates that district lines be drawn in a way that gives African Americans and other minorities a reasonable chance of winning seats in Congress. But if presidential votes were also allotted according to the congressional map, this would dilute the influence of minority voters, who tend to be concentrated in congressional districts in order to satisfy the Voting Rights Act requirement.

There is a way to circumvent the Electoral College and create a popular vote without a constitutional amendment. It’s called the National Popular Vote, and it takes a little explaining.

The Constitution gives states the power to decide how to allocate the electors who cast the vote for the president. The National Popular Vote is a campaign to get each state to pass a law entering into a binding agreement to award all their electors to the candidate who wins the national popular vote in all fifty states and Washington, D.C. This provision would only go into effect when states whose electoral votes total a majority of the Electoral Collegecurrently, 270 votessign the compact. When that happens, whichever candidate wins the popular vote will automatically garner a majority of the electoral votes. While this arrangement is rather complex, it has the advantage of being fair and utterly nonpartisanand could take effect as soon as enough large states agree to participate. If that happens, it would force public officials to represent a much broader segment of the populace out of electoral self-interest.

Devised by computer scientist and entrepreneur John Koza and two law professors, the brother Akhil and Vikram Amar, the plan is being promoted by a coalition of election reform advocates including the groups National Popular Vote and Common Cause, and by a collection of former lawmakers of both parties. Last April, Maryland became the first state to sign the compact. New Jersey followed suit in January of this year, as did Illinois in April. The measure has passed one house in seven states and, as of this writing, had passed both legislative houses in Illinois and was awaiting the governor’s signature. It is being actively debated in more than a dozen other states. (The plan would seem tailor-made for a postpartisan leader such as Arnold Schwarzenegger, but the California governor vetoed this measure in 2006.)

Changing the Constitution through state laws may seem like a meandering path toward fundamental reform, but there is a precedent. For most of the country’s history, state legislators, not voters, chose U.S. senators. When Abraham Lincoln debated Stephen Douglas, citizens couldn’t vote for them directlythey voted for legislators who then chose the man to send to Washington. The system was prone to corruption and served as a bulwark against popular will at the polls. In 1906, a muckraking magazine called Cosmopolitan (not that Cosmo) published a series called “The Treason of the Senate,” which exposed the flaws of the system and generated public pressure to change it. The Progressives began to agitate for direct election of senators. Then as now, however, changing the Constitution was a slow, hard process. So legislators ran for office pledging to vote for whoever won nonbinding “beauty contest” elections. By the time the Constitution actually was revised, many senators already were effectively elected directly by the voters.

With the National Popular Vote, the Electoral College may never need to be stricken from the Constitution. But for practical purposes, it would be rendered a formality, a charming relic of a time when lawmakers took snuff and democracy was the furthest thing from their minds.

Michael Waldman

Michael Waldman is the executive director of the Brennan Center for Justice at New York University School of Law.