By Cynthia Richie Terrell on June 12, 2020
Substantially enlarge the House of Representatives through federal legislation to make it and the Electoral College more representative of the nation’s population.
When the framers of the Constitution designed the House of Representatives, they set a constitutional cap of 30,000 constituents per representative. With population growth, the House grew from 65 to 435 members in 1929, when Congress capped its size. With further population growth, the average Congressperson now represents over 747,000 constituents. Repealing the 1929 Permanent Apportionment Act and expanding the House will tighten the link between representatives and their constituencies and make the House more representative of the nation.
To return the House to its original proportionality of 30,000 constituents per representative would require expanding it by over 10,000 members—an obviously impractical proposal. The House was designed for members who deliberate face-to-face. While the original proportions are no longer achievable, the goal of closer connections between members of Congress and constituents should not be.
This expansion will also have a salutary effect on the Electoral College. The framers designed the Electoral College to balance the influence of the population at large and of the states on presidential elections—and, among states, the influence of small and large. Demographic changes have shifted the delicate balance and increased the likelihood that a majority of the population and a majority of the states will make opposed choices. In the forty-four elections from 1824, when popular votes were first tabulated, through 1996, the winner of the presidency lost the popular vote in only two elections. In the five presidential elections since, it has happened twice, and demographic changes have only increased the likelihood of this outcome. An increasing frequency of such events would cast doubt on the legitimacy of presidential elections.
Introduce ranked-choice voting in presidential, congressional, and state elections.
Most election outcomes in the United States are determined by winner-take-all electoral systems. The candidate who receives the plurality of votes—that is, more than any other candidate, though not necessarily a majority—wins the election. In some cases, the winning candidate must receive a majority of votes. Both variations of winner-take-all voting are used in state and congressional elections in the United States. On the presidential level, the Electoral College determines the overall winner. Most states use a winner-take-all model to allocate all of their Electoral College votes to the state’s popular vote winner; only Maine and Nebraska use a proportional system to allocate their Electoral College votes.
The winner-take-all model of voting presents serious shortcomings. In the case of plurality outcomes, when votes are distributed among three or more candidates, the winner of the election may be a candidate who is disliked by a majority of voters. With a vocal minority able to impose its will over a more moderate majority, candidates are incentivized to appeal to the political fringes, and third-party candidates face pressure not to run lest they split the vote. Requiring a majority outcome through run-off elections seeks to avoid or mitigate these pressures, but run-off elections are costly and participation is generally low.
There is an alternative: ranked-choice voting (RCV). Instead of choosing only one candidate, voters choose their preferred candidate and then rank their second choice, their third choice, and so on. After votes are tallied, the least popular candidate is removed, and that candidate’s supporters’ votes are allocated to their second choices. The process continues until a single candidate receives a majority of support. The reallocation of votes is tantamount to a run-off election, without the need for voters to show up at the polls a second time.
- Ranked-choice voting became law in Maine through a ballot initiative in 2016. It was used in the 2018 election to determine a majority winner in one of Maine’s two congressional districts. In 2020, Maine will become the first state to use ranked-choice voting in the presidential election.26
- In 2019, New York City residents elected to revise the city’s charter to establish ranked-choice voting for all primary and special elections. New York City is now among more than fifteen cities that use ranked-choice voting.27
Because second and third choices matter in the ranked-choice model, candidates have an incentive to speak to a broader group of voters. The result: more moderate candidates and campaigns, a more welcoming environment for third-party candidates, and greater confidence among voters that their votes are not being wasted or distorting the outcome.
Amend or repeal and replace the 1967 law that mandates single-member districts for the House, so that states have the option to use multi-member districts on the condition that they adopt a non-winner-take-all election model.
The number of congressional seats each state has is determined by the census. Yet states do have wide latitude to determine how the representatives allocated to them are elected, including how congressional districts are drawn. The Uniform Congressional District Act, passed in 1967, standardized the use of single-member districts (SMDs), in which each district sends a single representative to Congress. Prior to this, states had the option of drawing multi-member districts (MMDs), which were larger and sent more than one representative to Congress.
The 1967 law made sense at the time. The civil rights movement was in full swing, and there was concern that efforts might be made in the South to draw large multi-member districts with white majorities. In this version of gerrymandering, black residents in the South risked losing all or most representation in the House.
Many of the concerns that motivated the 1967 law are still valid today. Within the framework of winner-take-all voting, MMDs would mean a step backward for equal voice and representation. State legislatures could—as they sought to do decades ago—draw large gerrymandered districts that dilute minority votes, both racial and ideological. States that use winner-take-all voting should not be permitted to draw MMDs.
Ranked-choice voting, however, changes the equation dramatically. If MMDs were coupled with ranked-choice voting in congressional elections, they would encourage the participation of a wider array of candidates, each of whom would have to appeal to a more heterogeneous bloc of voters. Instead of exacerbating the distortions of winner-take-all voting and drowning out minority votes, MMDs would amplify the representational benefits of ranked-choice voting and signal a victory for equal voice and representation.
Voting is an important tool in addressing the injustices in America. The elected officials who matter most in reforming the criminal justice system are elected at the state and local levels.
The 19th Amendment ratified in August of 1920 brought with it the hope of universal suffrage, and the promise that no one could be denied the right to vote on the basis of sex. But, despite the progress made by the Amendment, the right to universal suffrage it promised fell short, with women of color continuing to be barred from the voting booth. It wasn’t until the 1965 Voting Rights Act, that women of color’s right to vote was legally upheld, 45 years after all women were promised the right to vote.
In the 55 years since the Voting Rights Act, women of color have achieved many milestones and first in political representation. In 1965, Patsy Mink was the first woman of color to serve in the House of Representatives, followed shortly by Shirley Chisholm in 1969. Both women would go on to run for president in 1972, becoming the second and third women of color to do so, and the first women of color to run for the nomination of a major party. In 1993, the first woman of color, Carol Moseley-Braun was elected to the Senate; since breaking that glass ceiling, only five women of color have been able to follow in her path and serve in the Senate.
Although there has been an increase in the diversity of candidates and women candidates in particular over the past few years, underrepresentation persists because our recruitment and electoral systems doubly disadvantage women of color who consider running for office. Women of color face both race- and gender-based stereotypes and discrimination in all walks of life including running for office. Political party and organization recruitment strategies often replicate what has worked successfully in the past, often leading to the continuation of supporting white, male candidates. In addition to the lack of diverse candidate recruitment, our plurality-win, first past the post electoral system often results in minority candidates splitting the vote if more than one runs. This trend results in many women and people of color being told to “wait their turn.”
Kristen Clarke, President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law, leads one of the country’s most important national civil rights organizations in the pursuit of equal justice for all. Under her leadership, the organization has been at the forefront of some of the nation’s biggest racial justice problems today. The Lawyers’ Committee seeks to promote fair housing and community development, economic justice, voting rights, equal educational opportunity, criminal justice, judicial diversity and more. Kristen received her A.B. from Harvard University and her J.D. from Columbia Law School.
Terri Mazur Esq. is an experienced trial lawyer who focuses on her practice on federal securities litigation and regulatory investigations, primarily in the financial services industry, antitrust, defense of financial institutions in the consumer financial services industry, and complex commercial disputes. She represents corporate clients, financial institutions, accounting firms, officers and directors in complex individual, class and multidistrict litigation involving securities fraud, lending, leasing, credit reporting and practices, breach of contract and fiduciary duty, professional responsibility and fraud claims. She also represents national and multinational corporations in the chemica, energy, airline and other industries in monopoly, cartel, price fixing, market allocation and conspiracy cases.
Terri has tried numerous cases, including bench and jury trials, and evidentiary hearings for injunctive and emergency relief, in federal and state courts across the country. She has written numerous appellate briefs and argued before the Courts of Appeals for the Third, Sevent, Ninth, and Tenth Circuits, as well as in state appellate courts.
She also frequently speaks and writes on securities and antitrust issues, as well as on issues affecting women lawyers. You can hear her speak at the Seneca Falls Revisited virtual conference this July.
My garden is flourishing - weeds and all, I hope that you too are finding opportunities for rejuvenation as we prepare for the election season before us.
P.S. Don't forget to check out this week's suggested reading from the RepresentWomen team!