Here’s a good enough solution to the way we elect US presidents

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Here is a common conundrum. You’ve been searching for flights to Florida for that dream family vacation. You want to go in about three months, and you find what you consider a very good deal on flights and hotel rooms. It’s not the best deal you’ve ever seen, but it fits within your budget and will make you and your family happy. As most of us realize, the rational thing to do is buy the flights and enjoy the trip. Don’t let your search for the absolute perfect deal leave you paralyzed and unable to ever buy tickets for a great vacation.

Most of us apply this “good enough” principle in our daily lives all the time, yet those who resist making any changes to the disastrous system we have for electing our president are ignoring it. But they should not let the search for a perfect way to elect our president get in the way of meaningful reform to our current, deeply flawed system.

{mosads}Specifically, there is now a series of coordinated lawsuits filed by plaintiffs in four different states who all contend that the “winner-take-all” system—where nearly every state gives all of its Electoral College votes to the one candidate who wins the most popular votes in the state—violates the constitution. After all, they argue, when a state counts millions of votes for a candidate only to discard them and pretend one candidate won the state in a landslide, the state violates the core concepts of “one person, one vote” and the freedom of political expression. A better system, the plaintiffs contend, would be to have each state allocate electors in proportion to the popular vote in the state: a candidate that gets 2/3 of the vote in the state should get 2/3 of the electors. You know, like we usually do it in a democracy.

Massachusetts is one of the states that has been sued in this litigation campaign, and its response to the lawsuit has been marred by its failure to see that constitutional law often requires “good enough” solutions to replace obviously broken ones. Secretary of State William Galvin, for instance, has not exactly given a full-throated defense of the unequal system that results in his blue state being essentially ignored in the presidential race. But he has expressed concern that a system of proportional allocation of electoral votes would be “unpredictable” and could result in a “mathematical game” because of how popular vote percentages might be translated into electoral votes. In an op-ed, professors Allen Guelzo and James Hulme expressed a similar sentiment when they scoffed at the idea that a candidate that should get 15.56 electors in a hypothetical proportional scheme would need to be rounded up to 16 electoral votes or rounded down to 15.

This is the classic error of failing to act because a proposed solution is imperfect. It is true, of course, that any change to the current system that keeps the Electoral College in place would necessarily involve rounding. There is simply no way to translate over 100 million popular votes into 538 electoral votes without some degree of rounding off to the nearest elector. But the question is not whether a proportional system is perfect. Instead, it is whether the current system violates the Constitution and whether a proportional system that would replace it complies with our constitutional ideals.

And the answer to that query is clear. If you want to talk about rounding errors that don’t comply with our ideals of equality and democracy, examine the current system first. The winner-take-all system rounds up from 51 percent to all of the electors of a state, and rounds down from 49 percent to zero electors. That’s an unconstitutional disaster. A proposed solution that rounds from 60 percent of the vote to 66 percent of the electors is also imperfect in the sense that it is not precisely translating popular votes into electoral votes, but it is much closer to our constitutional ideal of “one person, one vote” than the current system is.

When faced with this discrepancy, the courts should strike down the current system and require states to make best efforts to comply with the Constitution. Indeed, accepting a “good enough” solution to a constitutional problem is well within our constitutional tradition: consider the Supreme Court’s famous edict in the wake of Brown v. Board of Education that schools be desegregated with “all deliberate speed”—not “immediately.” More recently, the Supreme Court modified the Affordable Care Act’s Medicaid provision to permit states to opt in or out as a way to fix what it saw as a constitutional violation in the law as written. These were imperfect solutions to major constitutional problems. But they were better than the alternative, which was to let a constitutional violation continue without the courts doing anything.

My younger sister is a social worker who lives by the “good enough” mantra; she even has the phrase tattooed on her arm. “Good enough is enough,” she often tells her clients and her audiences. Good enough is surely enough when it comes to Electoral College reform too.

Jason Harrow is Chief Counsel of

Tags Electoral College; popular vote

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