The Hybrid Primary Home

Ending voter and candidate exclusion.

Electing the president by popular vote without a constitutional amendment.

Posted by on May 26, 2019


In November of 2000, the voters selected Al Gore(D) as the top U.S. presidential candidate – but George Bush(R) was nonetheless elected president with the help of the U.S. Supreme Court and the electoral college. In 2016, Hillary Clinton(D) won the popular vote for president, but Donald Trump(R) was nonetheless elected and sworn in as president – again because of the constitutionally mandated electoral college process. Worse yet, it’s likely that this travesty will be repeated in the coming years – if nothing is done.

U.S. Constitution, Clause 2: 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.

https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-2%E2%80%934.

There isn’t really anything wrong with clause 2 shown above. There really isn’t anything wrong with the 12th amendment either. The 12th amendment specifies how these electors cast their vote for president and vice president. Even if these constitutional provisions were flawed – it would be nearly impossible to get an amendment through congress and passed by the state legislatures. Politically, it just won’t happen.

So how do we go about changing the electoral college so that the president is chosen by popular vote instead of by party? The solution involves changing the way electors are chosen, and this is always mandated by state law – not the U.S. Constitution. The statutory language used in Oregon is a good example of what needs to be altered:

The problem isn’t electoral college delegates, it’s how the delegates are selected – by political parties. The delegates represent political parties – not the voters. Shown below are proposed state statutory provisions that establish an alternative process for selecting electoral college delegates. “Electoral College Electors” are all state election officials and the appointed electors form an “Electoral College Committee”. This committee is presided over by Oregon’s chief elections officer – the Secretary of State. These delegates represent the voters – not political parties.

“Inclusion”/“Exclusion” of votes.

Shown below are the statutory provisions that define how the winners of the primary and general election are determined and certified. Note that in both cases, the outcome is determined by canvassing the popular vote – not just in Oregon, but the entire presidential election worldwide. The U.S. Constitution stipulates how many electors each state is entitled to, and how they cast their votes, but it’s not stipulated how they decide who they vote for. In the past, the U.S. Supreme Court has stepped in to strike down state laws that restrict the autonomy of presidential electors – so the statutory language must be very general.

The canvass of the popular vote for president could actually be very complicated. It’s likely that many compromises will need to be made every election cycle to insure free and fair elections in both the short and long terms. Rather than delegating authority to make these decisions to inherently political institutions like congress, the state legislatures or the U.S. Supreme Court, small groups of election officials are appointed in each state to act on behalf of voters. The provisions shown above are deliberately worded to give each Electoral College Committee absolute authority to analyze the vote and determine the winners.

  • Paragraph (a) gives the committee authority to recognize worldwide U.S. territories like Puerto Rico and Guam. The committee can make this recognition regardless of any federal or state law and regardless of any federal or state court rulings. The recognition is based on the “belief” of the committee.
  • Paragraph (b) authorizes the committee to exclude the votes from any district if the election process was not “free”. Once again, this determination is based on the “belief” of the committee and there is no obligation to reconcile this belief with any contradictory federal/state law or the rulings of any court.
  • Paragraph (c) authorizes the committee to exclude votes if the election process was not “fair”. The best example is the 2000 presidential race in Florida between Al Gore and George W. Bush. The Electoral College Committee in Oregon could have – and probably would have, excluded the votes from Florida because of the hanging chad problem. Note that excluding votes has the practical effect of calling the state contest a “draw”.
  • A committee need not exclude the votes from an entire state if there is corruption in a single district.
  • A committee is never required to exclude any votes. The committee has full authority to choose the best course of action to insure free and fair elections. In 2000, a “butterfly” ballot corrupted the election contest for U.S. President in Florida. Would excluding the results have led to a “fairer” overall outcome?
  • Who decided that major party nominees get to pick the vice president? The winner of the general election could be President with the runner up Vice President. We could also hold a separate election for Vice President.