Brnovich v. Democratic National Committee involved the Supreme Court gutting the remaining vestiges of the Voting Rights Act (VRA), such that jurisdictions will have free rein to impose partisan burdens on franchise rights that have a disproportionate negative effect on racial minority voters who, based on racial political polarization, prefer Democratic Party candidates over their Republican opponents. Brnovich follows the highly divisive 2020 presidential election that Joe Biden won against former President Trump based on very narrow margins in highly contested swing states, notwithstanding a nationwide popular margin of more than 8 million votes. This blurring of the lines between partisan and racial motivation in the context of pronounced racial political polarization in a highly contested two-party election framework has left ample room for partisans on both sides of the two-party divide to be incentivized to exacerbate the racial, regional, and socioeconomic cleavages that have systematically undermined national cohesion in recent years.
Something must be done to remedy the chasm that divides the country. Some reflexively blame the two-party system and argue for its replacement with a multi-party framework as found in western Europe. Many, including myself, blame the country’s reliance on single-member plurality districting, which encourages partisan gerrymandering and vote dilution of minority party votes. Because presidential governance, more than its Congressional counterpart, relies on democratic legitimacy, a potential means of increasing national cohesion is for state legislatures to reform their means of awarding their states’ Electoral College votes from the current “winner-take-all” framework to one that awards Electoral College votes in rough approximation to the percentage of the two-party vote won by the major candidates, with a bonus vote for the state winner where the popular vote result would otherwise indicate an even split of Electoral College votes (Apportionment Proposal).
The Apportionment Proposal will also engender national cohesion by depolarizing the legitimacy of the election outcome in each state, thereby disincentivizing voter suppression and foreign election interference in highly contested swing states because the popular vote outcome in each state will be less outcome determinative. Limiting the award of Electoral College votes to the two leading candidates also protects against the proliferation of splinter and regional party candidates that would undermine national cohesion. Finally, unlike replacement of the Electoral College with a French-style nationwide popular vote, or the often mooted proposal to award bonus Electoral College votes to the nationwide popular vote winner, the Apportionment Proposal does not require a constitutional amendment and protects a key advantage of the original Electoral College, namely to encourage nationwide campaigning by candidates in lieu of monographic focus on the country’s major population centers. This also explains its advantage over the national popular vote compact, whereby each state would award its Electoral College votes to the nationwide popular vote winner.
M. Akram Faizer,
Reforming State Electoral College Laws to Depolarize American Politics,
70 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol70/iss2/5