Professor Mulroy is the author of the recently published book,"Rethinking US Election Law: Unskewing the System," where he describes the most serious shortcomings in elections to federal office in the United States and how they can be overcome. He has been on the law faculty since 2000, teaching in the areas of Constitutional Law, Criminal Law, Criminal Procedure, Civil Rights, and Election Law. A former civil rights lawyer for the U.S. Justice Dept. and former federal prosecutor, he tried a number of voting rights cases which went to the Supreme Court.
Anyone wondering about the 2020 elections must also be wondering how much their vote counts. In 2016, the candidate with fewer national votes won out over the candidate with more. In the past 3 federal elections, the party with the most nationwide votes lost control of the Senate to the party with fewer nationwide votes. And in 2012, the party with a minority of national votes retained a 30-seat majority over the party with the majority of national votes.
These 'counter-majoritarian' outcomes reproduce at the state level as well. Depending on the state, they can unfairly help Republicans, or Democrats. Even when the majority party wins a majority, that party usually gets significantly more seats, or less seats, than their proportional vote share.
The villain in all these scenarios is our "winner-take-all" election system, where 50.1% of the vote gets 100% of the power. Under that system, running up big super-majorities in individual states (President, Senate) or districts (House) leads to "wasted" votes. But distributing your votes efficiently--getting bare majorities in more states, or districts--means you can snatch away the White House, the Senate, or the House, even if you're not the most popular alternative.
Political scientists have recognized the potential for such "anomalous" results for many years. But we inherited the winner-take-all, single-member district system from England, and we've stuck with it out of inertia.
There is a solution, however, one which almost every Western democracy has instituted at least partially at the national level: proportional representation (PR). Under PR, 55% of the vote nets roughly 55% of the seats, and 35% of the vote nets, give or take, 35% of the seats. Instead of "winner-take-all," it's "majority take most, and minority take its fair share."
Under this system, Democrats in Texas, and Republicans in New York, need not stay home thinking their vote would be futile. They may not control the whole shebang, but if they and their cohorts show up, they can get a seat at the table. Indeed, because a few percentage points increase in a party's performance could make the difference between, say, 20% versus 30% of the seats, every election is competitive, and every voter has an incentive to turn out every time.
Many Western democracies achieve PR with parliamentary systems of government, where
people vote for parties rather than candidates. That's not the American way. A more
American way to achieve PR would be to use Ranked Choice Voting (RCV), where voters
can rank their 1st, 2nd, and 3rd choice for candidates. That's how Australians elect
their Senate, and it's worked well for 80 years. Here in the U.S., Minneapolis, MN,
and Cambridge, MA, have used a similar system successfully for several decades.
RCV has other advantages as well. It encourages candidates to run positive campaigns and speak to all voters, not just their natural base. It elects majority-supported, consensus candidates with broad support, without the trouble, expense, and historically low turnout of special 'runoff' elections. That's why I've advocated for it in Memphis, where referendum voters have decisively voted for it in 2008 and 2018.
I've studied similar proportional and semi-proportional voting systems—cumulative voting, used in corporate elections, and preference voting, described above—for many years. Early on, I wrote about how they have been, and could be, used to remedy claims of racial/ethnic minority vote dilution under the Voting Rights Act. More recently, I've written a book explaining how they can more generally cure much of what's ailing our U.S. democracy today – the Electoral College, gerrymandering, hyperpolarization, campaign finance issues, and other problems. I spent a sabbatical semester in Australia studying their electoral systems. Space doesn't permit a full explanation, but suffice it to say that there are innovative, legal, proven electoral reforms which can solve the above problems and more, none of which require a federal constitutional amendment.
Many of these reforms are being used as we speak. As I write this, 15 states and DC have joined an interstate compact which could reform the Electoral College in our lifetime. Four states have adopted RCV for Democratic presidential primaries in 2020. And over a dozen cities have adopted RCV, with more cities and states on the way, including Maine, which already uses RCV for all its statewide elections, including U.S. House and Senate.
When you go to vote next year, think about the system we've inherited, and ask yourself, "Does it really need to be this way?"