Brnovich v. Democratic National Committee involved the Supreme Court gutting the remaining vestiges of the Voting Rights Act (VRA),1 such that jurisdictions will *146 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. Legislative enactments on franchise rights, such as Arizona's voting restrictions at issue in Brnovich, however, were motivated by partisan considerations over the racial hierarchy framework that first prompted the VRA in 1965.2 Indeed, the Brnovich Court emphasized that partisan motives are not the same as racial motives for VRA purposes, even though racially polarized voting can sometimes “blur the lines.”3 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, especially since the 2008-09 financial crisis.4

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.5 The very narrow margins in swing states, in conjunction with politicization of the delay in declaring a winner caused by the extended time needed to tabulate the exceedingly high number of mail-in ballots from urban precincts due to the COVID-19 pandemic,6 has worsened partisan and ethnic cleavages in an already divided *147 country.7 Divisions surrounding the election result were exemplified by the events of January 6, 2021, when Trump, while still president, incited a large mob of his supporters to storm the Capitol Building in Washington to prevent the House of Representatives from finalizing the Electoral College in Biden's favor.8 Although this led to President Trump's subsequent impeachment by the House of Representatives for Incitement to Insurrection,9 his partisan acquittal by the U.S. Senate10 and subsequent developments evidence the extent of the nation's worsening partisan divide. These developments include polling evidence demonstrating how most Republican voters believe the 2020 presidential election was stolen,11 and actions by several Republican-controlled legislatures, including Georgia, to enact restrictions on early voting and ballot access that disproportionately exclude Democratic-leaning racial minority voters.12 The problem of hyper-partisanship is not solely the fault of Republicans. After candidate Trump lost the nationwide popular vote but won the presidency in 2016 based on very narrow popular vote margins in key swing states, a sizable number of Democrats refused to accept the legitimacy of his election over Hillary Clinton.13 They then pressured the Justice Department to investigate the extent of Russian election interference on Trump's behalf,14 which led to the Deputy Attorney General's appointment of Special Counsel Robert S. Mueller, III, whose invasive investigation deprived Trump of needed political capital to pursue a legislative agenda for the first two years of his presidency.15

*148 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 multiparty framework as found in western Europe.16 However, replacing the two-party system, which has endured for most of the country's history,17 will be complicated and inordinately difficult to effectuate consistent with freedom of association that is protected by the First Amendment. Though understandable, the country's two-party system does not explain why partisanship is escalating, especially since the two-party system was consistent with a bipartisan approach to domestic and foreign policy for much of the 20th Century.18 From today's vantage point, it is easy to forget that it was the Republican former Governor of California and 1948 Vice-Presidential candidate, Earl Warren, whose court ordered an end to segregated public schooling and commenced the modern era of voting rights by judicially invaliding legislative malapportionment nationwide.19 With respect to Congress, the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968 were enacted with higher rates of Republican than Democratic support in both Houses.20

Many, including myself, blame the country's reliance on single-member plurality districting, which encourages partisan gerrymandering and vote dilution of minority *149 party votes.21 This, however, fails to explain the dramatic growth of partisanship at the presidential level, which has worsened dramatically in recent elections. A legitimate explanation for the growth in presidential partisanship is the inordinate democratization of contested caucuses and primaries to choose the major party candidates, with the focus being on choosing the ideologically “pure” as opposed to the most electable candidate. However, primaries and caucuses became the sole means of delivering major party nominations since John F. Kennedy won the Democratic nomination in 1960.22 Primaries and caucuses also were consistent with the high arc of bipartisanship that characterized the Civil Rights and Cold War eras.23 A more likely explanation for the growth in partisanship at the presidential level is the replacement of Madison's Congressional system of government with a more democratic presidential system in which the White House, the federal administrative agencies, and the White House-nominated federal judiciary have taken a hegemonic role in American government.24

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”). For example, rather than awarding Biden all of Georgia's 16 Electoral College votes, based on an extremely narrow popular vote margin of .2%, Georgia's Electoral College votes would be awarded such that Biden obtains 9 votes and Trump 7, i.e., an equal distribution of votes between the candidates plus an additional vote to Biden for winning the statewide popular vote. If legislatively or conditionally enacted by enough states, it will result in an Electoral College result that more closely reflects the nationwide popular vote tally and therefore is more likely to be viewed as democratically legitimate.

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 interference25 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 *150 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.