It’s Election Day 2020 and many of us will be sitting on the edge of our chairs tonight and probably for several days to come to find out the results. You will hear lots of talk about how important it is that “every vote counts” and “every vote be counted”. While counting the votes is indeed important, if you’re a Democrat in Indiana, most years your vote for president doesn’t mean Jack shit.

I’m not talking about voter fraud or the fact that I submitted a mail in absentee ballot because my disability. I’m talking about people who go to the polls today, placed their ballot for Biden/Harris, it gets counted and added to the Indiana total. But it doesn’t affect the outcome of the election.

The reason is that Indiana is primarily a Republican state. While Indianapolis, Gary, and some other urban areas are heavily Democrat, overall there are enough rural votes that are strongly conservative and Republican that unless we have an especially strong Democrat candidate, all 11 of Indiana’s electoral votes are going to go to the Republican. I couldn’t find registration numbers for the general election but in the June primary there were approximately 4.5 million registered voters in Indiana. For the sake of argument let’s assume that 2,250,001 people voted Republican and 2,249,999 voted Democrat. The result would be that all 11 Indiana electoral votes would go to the Republican. Now of course if I was one of one or two lazy Democrats that didn’t vote then I would’ve made a difference.

However according to Wikipedia in 2016 Trump got 1,557,286 and Clinton got 1,033,126 a difference of 524,160. So unless we had over half a million lazy Democrats who didn’t vote in 2016, the Indiana outcome would’ve been the same. And as we know Clinton won the popular vote but because of this winner-take-all electoral college system Trump won the electoral college and became president.

Some people have said that a way to reform the electoral college without abolishing it completely is to get rid of the winner-take-all and allocate the electoral votes based on congressional district outcome. Electoral votes are determined by the total number of members of Congress. We have nine house members and two senators giving 11 electoral votes. Let’s suppose we put two of those votes on the statewide total in the other nine votes based on who won the district. In 2016 Clinton won the 1st and 7th congressional districts (Indianapolis and Gary area) and Trump won everything else. In that case since I live in Indianapolis in the 7th district my vote would’ve at least contributed to 1 electoral vote. In fact 2 states Maine and Nebraska do it that way.

Even though that would be somewhat more equitable, it would still allow for the possibility that a candidate could win the popular vote and not win the electoral vote. How did we get to the system of the electoral college? Why is it in the Constitution? I’m no history expert but I know a little about it. First of all we need to talk about how states are allocated number of representatives.

Originally the Constitution separable representatives at 65 from 1787 until the census of 1790. The apportionment based on the 1790 census resulted in 105 members. From 1800 through 1840 the number of representatives was determined by the ratio of the number of persons each was to represent. However the way to handle fractional reminders evolved over those years. The methods involved and the numbers grew. In 1911 the house size was fixed at 433 with provision for one additional seat each for Arizona and New Mexico when they became states giving a total of 435. There was a temporary increase to 437 when Alaska and Hawaii became states but since then it has stayed at 435. See this linked document from the U.S. Census for details.

In 1788 the first Congress based on the new Constitution as mentioned before had 65 seats in the House of Representatives plus 26 senators (2 each for the 13 states) giving 78 electoral votes. The distribution among the 13 states ranged from just one representative and two senators for Rhode Island and Delaware giving them three electoral votes each up to 10 representatives and two senators for Virginia. The system was set up to narrow the gap between the small states like Rhode Island and large states like Virginia. Had they only counted representatives, which were based on population, the ratio between these two states would have been 1/10 = 0.10 ratio. However by giving every state the same number of senators and 2 electoral votes to go with them the ratio was 3/13=0.23 ratio more than double what it would’ve been otherwise.

Compare that instead to the current situation where in California has 53 members of the house plus 2 senators for a total of 55 electoral votes and 7 states have only one representative and 2 senators. That gives us a ratio of 3/55= 0.0545 including senators and 1/53=0.0189 without senators. While the inclusion of 2 senators have a much bigger impact for smaller states then it did in the early days, the giant gap in representation between large states and small states is far beyond what it was in the days of the original 13.

This system of assigning representatives, senators, and electoral votes was designed to give smaller states a bigger influence. But with a large disparity between large states and small states this system of allocation makes things worse for small states. While one can argue that large states deserve a bigger congressional presence than small ones, when it comes to choosing a president it means that large states that have a nearly equal proportion of voters in the two parties become hugely influential. These are the so-called “swing states”.

For the same reason that it is not fair to Democrats who live in Indiana that their state is going to go mostly Republican in most presidential elections, it similarly not fair to Republicans in New York or California that typically go Democrat. If you’re in the minority party in a particular state, your vote essentially contributes nothing to the outcome of the Presidential election.

During the contested election of 2000 in which everything came down to recounts in Florida I listened carefully to the audio from the arguments in the Supreme Court. TV cameras are not allowed but they did allow live audio. During the questioning one of the justices (I’m sorry I forget who) pointed out that there is nothing in the U.S. Constitution that says that my vote for president has to be counted! That’s absolutely true. Nothing in the Constitution says that we get to vote for president. It is up to the individuals states to decide how they will choose electors to the electoral college.

It is only by state laws that we get any say in it at all. Did you read your ballot when you voted in Indiana? The following language appears above the names for president. “A ballot cast for the name candidates for President and Vice President of the United States is considered a ballot cast for the slate of presidential electors and alternate presidential electors nominated by that political party or independent candidate”. Here is a sample Indiana ballot.

But that’s only because that’s how Indiana (and all the other states) choose to do it. They could just as easily say that the state legislature would pick the electors for the electoral college. They could even say that members of the House and Senate for that state would be the electors. And as we mentioned before, not every state has the winner take all policy.

Suppose you had a Republican state with a Republican state legislature, congressional delegation, and governor. Suppose they didn’t like the fact that the Democrat got the most votes in the state. They can hastily pass a law voiding the election, inserting their own slate of Republican electors and send them to the electoral college. That’s highly unlikely but the Constitution would not have a problem with it. It’s up to the states to pick their electors however they choose.

One of the reasons that we have the electoral college apart from the way it’s allocated to benefit smaller states, is because the founders didn’t trust the people with such an important decision. The original idea was that educated knowledgeable people (people meaning rich white guys) would come together representing the best interests of their state and do what was right for the country by picking the right person. In some ways the electoral college was designed protect to the country from a candidate like Trump. They speculated what if a populist who could sway the mind of uneducated voters were to get a majority of votes but was otherwise unqualified to hold such an important position? It would then be up to these wise men who were entrusted with the fate of our nation to do the right thing and elect someone who is qualified.

There were a large number of Republicans who were uncomfortable with Trump as their candidate. Listen to some of the nasty things people like Lindsey Graham and Mitch McConnell had to say about Trump during the Republican primaries leading up to 2016. It was entirely within the power of the Republican Party to decide that Trump wasn’t fit and to replace him with a different candidate or even possibly vote for Clinton although that was highly unlikely. Instead, knowing that they would hold great power by having an alleged Republican in the Oval Office who held to alleged conservative principles and most of all who would appoint conservative justices to the Supreme Court that they “did the right thing” by listening to the people who gave Trump the electoral majority even know he didn’t when the popular vote.

There’s another way that your vote for president might not count. That is if there is a tie in the electoral college. In that case the US House of Representatives picks the president. If you’re a Democrat you say “That’s cool! Democrats lead in the house 232-197 with 5 vacancies.” But that’s not how it works. When the House decides a tied electoral vote, each state gets 1 vote! By my rough count with the possibility of some vacancies I didn’t account for Republicans have the majority of House members on a state-by-state basis with 26 states having Republican majorities. Theoretically a Democrat could when the popular vote, have a tie in the electoral college, have it go to the House of Representatives where the Democrats hold the majority, but because it’s one vote per state we could still have a Republican president. Here is the current composition of the House of Representatives.

During the 2016 election Trump constantly said “The system is rigged” and he was convinced he was losing. He was half right. The system is rigged and because it was rigged he won. George W. Bush won in 2000 because of the same rigged system.

Biden, Harris, and other Democrats are saying that the future of democracy is at stake. They say that Trump represents an existential threat to a democratic way of life. Time will tell if that is hyperbole or not. But the real threat to a fair and equitable system of choosing a president clearly is this antiquated, states-rights-driven, electoral college system and its bizarre arcane backup of throwing the election into the House of Representatives. Not to mention the bizarre precedent of the 2000 election in which the Supreme Court issued what progressives and conservatives alike claim was one of the worst decision in the history of the court essentially decided the election. Many constitutional scholars have argued that the Supreme Court had no standing in Bush v Gore. And as we’ve stated, how the states choose their electors is not a federal issue. It is clearly a state issue.

In the early days of our country, actually up until the end of the Civil War, most people identified their citizenship with the particular state in which they lived. They didn’t consider themselves to be a citizen of the United States. They were citizen of Virginia and Pennsylvania or whatever state. It wasn’t just a situation of our history long debate over large central government versus a loose collection of affiliated states. Our very identities were tied to the states themselves and so anything that promoted state’s rights was important early in the country.

But this isn’t the late 1700s or early 1800s. It’s 2020. I’m a citizen of the United States of America who just happens to live in Indiana. And while we can engage in serious dialogue about big government versus small government and other such federal power issues, it is absolutely ludicrous that the only office that affects ALL Americans, the President of the United States, is chosen by such an arcane, unfair, contrary to its original purpose, system of electoral votes.

As a brief aside, our primary system is highly flawed as well. Because Indiana holds its primary late in the season, by the time they get to us, the race is already over. In June Biden had already locked up the nomination. But that’s a separate topic of why your Indiana vote doesn’t count.

Whatever happens over the next few days in regards to the winner of this office, if you REALLY care about the future of this country, the future of democracy, and a fair and equitable system choosing the most important office in our country and the free world then you will take all that energy, anger, angst, motivation that you displayed when you stood in line for hours risking your life to a pandemic just to cast a vote that in many places didn’t mean squat and channel that into abolishing the electoral college and amending the Constitution for direct vote for president.