The Electoral College

October 28, 2008


Questions and Answers:

  Bio

The election of 2000 caused many Americans to focus, perhaps for the first time, on the existence of the Electoral College. Few voters seemed to have strong feelings about the system one way or another prior to the election. After the election, many voters quickly developed passionate opinions regarding the wisdom of awarding the presidency based upon states’ votes rather than individuals’ votes. Some Americans seem to have become instant Electoral College opponents or supporters, depending on which candidate they backed in the voting booth that year.

How unfortunate. The Electoral College is a brilliant constitutional device that deserves the support of the American people. It does not deserve such support, however, simply because one man in one year won one election—nor does it deserve to be opposed because one man lost one election. It should be evaluated and judged on its own merits, regardless of which candidate a person voted for in 2000. A fair evaluation of the system reveals that it is the perfect complement to the other checks and balances in the Constitution.

We hear much talk today about efforts to “spread democracy” in the Middle East and elsewhere. Americans quickly and easily speak of our own country as a democracy. But the founding generation would not have been so quick to use the same description. To the contrary, patriots such as James Madison, Benjamin Rush, and Fisher Ames described democracies as “spectacles of turbulence and contention,” “the greatest of evils,” and a “volcano, which conceals the fiery materials of its own destruction.” The delegates to the convention never sought to create a pure democracy. They knew that such a government, in its purest form, could allow even “inflamed” majorities and “unreflective mob[s]” to rule. Freedom and self-government can co-exist only if devices are created to temper the momentary passions of the public. Thus, the Constitution they drafted includes several protections for minority interests and small states: a Senate in which each state has equal representation, a presidential veto, and supermajority requirements for certain types of governmental action. The Electoral College is a protective device that operates in this same spirit.

Some will argue at this juncture that the Electoral College is a protective device that was once needed, but that it has become outdated. Not so. Of course, some things have changed: The communication problems of the 18th century have been replaced by 24-hour news networks, Blackberrys, and the Internet. Many economic and commercial concerns are more international and less local than they once were. But the more fundamental aspects of our world have not changed. Power still corrupts. Self-government still suffers when ambition, greed, and individual selfishness run rampant. Minorities still need to be protected. Some states are still smaller than others, and each state has unique interests that should be represented in the federal government. Moderation and compromise among voters, political parties, and presidential candidates are still beneficial. Americans still need a President who represents the variety of subcultures that span the nation, rather than a President who only represents isolated regions, urban areas, or special interest groups. Finally, voters still need tools to help protect them against fraud and mistakes in the election process. The Electoral College continues to provide all these benefits to our country.

Discontent with the Electoral College is a real factor in America. But the cure is not elimination of the system. The Electoral College tends to be unsupported because it is not understood. To the degree that voter dissatisfaction exists, the appropriate solution is education about the history of and justifications for the system. This education will reveal that the Electoral College serves a critical role in our republican democracy.



 Bio

Friends: Some might be persuaded by Ms. Ross’ stunning description of the electoral college as a “brilliant constitutional device,” but I think I’ll stick with Thomas Jefferson, who called it “the most dangerous blot in our Constitution,” and the commanding majorities of American citizens who regularly tell pollsters that they favor moving to direct popular election of the president. To support direct election, one need only believe in the current system we use for electing Governors, Mayors, U.S. Senators and indeed nearly every other official in the nation. I will cheerfully concede that the electoral college should not “be opposed simply because one man in one year won one election” (even if that “one man” who “won” in the electoral college but lost in the national popular vote by more than 500,000 votes goes on, hypothetically speaking of course, to squander goodwill all over the world, unleash aggressive war on a false pretext that costs tens of thousands of lives and hundreds of billions of dollars, disgrace America abroad by making torture and rendition state policy while letting terrorists slip our grasp, wreck the government such that more than a thousand of our citizens die in the aftermath of a hurricane, and ruin the economy). But everybody makes mistakes, and one bad apple shouldn’t spoil the barrel. Yet, we have had not one “wrong winner” election in which the popular will was thwarted, but four of them, and this system is inescapably an accident waiting to happen.

But while the rejection of popular rule is surely the original and fundamental flaw of the system, it is not the worst feature of the way we practice the electoral college today.

The two worst features are the following:

First, the bizarre and hopelessly arbitrary regime that has evolved marginalizes the vast majority of the American people. Most of us live in safe red or blue states where it is perfectly obvious who is going to win and who is going to lose. Thus, of the four largest states—New York, California, Texas and Florida—only Florida is a swing state. The other three are effectively ignored by the campaigns in the general election except for the purposes of fundraising to export dollars to swing states or raising volunteers to travel to swing states. Lest you think the electoral college today “benefits” small states, consider this: Of the twelve smallest states, only New Hampshire and now North Dakota are swing states. The other small ones, like Rhode Island and Vermont on the blue side, or Montana and Alaska on the red, are “safe” and thus ignored. Today, there are, at most, 10 states left in play in the 2008 election, which means that, again, hundreds of millions of people will simply watch to see what happens in Ohio, Florida, Nevada, Colorado and—here’s the great surprise of the season—Virginia and North Carolina. In the last two election cycles, more money was spent on political advertising and organizing in Florida and Ohio than in 45 states and the District of Columbia. This is a perfectly rational allocation of resources where most of the country is consigned to “spectator” status and the people are reduced to observers.

Wouldn’t it make a lot more sense just to have a national election in which every vote counts and every vote counts equally? That way, the candidates will campaign and invest resources everywhere and all of us will have an incentive to vote. This is the National Popular Vote plan.

Second, the segregation of our states in the general election into safe and swing states dramatically raises the stakes for victory in particular states, like Florida 2000, so that strategic partisan actors—like Secretaries of State who are supposed to be assuring a fair election—are given every incentive to suppress the vote, purge voter rolls, manipulate the placement of machines, and falsely accuse voters of being felons—all to eke out razor-thin victories of, say, 537 votes out of millions cast to deliver winner-take-all prizes, such as 25 electors from Florida in 2000. The combination of the safe state/swing state patchwork and the winner-take-all prizes in all states (but two, Maine and Nebraska) creates dramatic moral hazards that undermine real democracy (which some of us, unlike Ms. Ross, do favor) and public confidence in the nature of our politics.

Ms. Ross (may I call you Tara?) calls for education about the “history of and justifications for the system.” This is a debate we desperately need to have and I look forward to it.

By the way, the National Popular Vote does not abolish the Electoral College but simply uses the Electoral College to get us to a national election of the president—with real democratic legitimacy. It does this by creating an interstate compact in which all the states that join agree to cast their electors for the winner of the national vote; the compact comes into being when states equaling 270 in the electoral college sign up, thereby enabling the compact to make the national vote decisive in every presidential election. We in Maryland passed it first; then New Jersey, Hawaii and Illinois. The California legislature passed it but Governor Schwarzenegger vetoed it, as have two other Republican governors.



  Bio

Of course, Jamie. I am happy for us to be on a first name basis. I’ll address your objections in the order that you presented them.

I will cheerfully concede that I sometimes disagree with Thomas Jefferson and find myself more in agreement with some of the other Founders. In this instance, I agree with Alexander Hamilton that if the “mode of appointment of the Chief Magistrate of the United States . . . be not perfect, it is at least excellent.” 

Jamie cites the “current system we use for electing Governors, Mayors, U.S. Senators and indeed nearly every other official in the nation” as a model for presidential elections, but I find these elections to be irrelevant to the discussion. The President is the only elected official in America who is expected to represent the entire nation. How unsurprising that his mode of election is a bit different from those who represent states, cities, counties, or congressional districts.

Jamie argues that four presidents have been elected despite losing the popular vote. Assuming, arguendo, that this number matters, I would argue that only two elections are fairly cited as examples of this phenomenon: 1888 and 2000. The 1876 election, as Jamie knows, was held in the aftermath of the Civil War and Reconstruction, and it was characterized by rampant fraud, dishonesty, and controversy. We do not know what the results of a fair and free election would have been. In 1824, as I am sure Jamie also knows, not all states relied upon popular elections as a means for elector selection. Instead, some state legislatures appointed electors directly. Andrew Jackson won the plurality of recorded popular votes, but many Americans were not given the opportunity to vote at all.

I’ll condense much of the rest of Jamie’s argument down to one point: In any given election year, there are “safe” and “swing” states and their status as such impacts the strategies of presidential candidates. Naturally, if one focuses on one election year or a handful of election years, as Jamie has done, it is easy to come up with all sorts of scary statistics about how this or that state/individual is being unfairly treated by the system. However, if we focus on the full history of states’ voting, we discover that there is no such thing as a permanently safe or swing state. Jamie essentially concedes this point when he mentions “the great surprise of the season”: Virginia and North Carolina, once safe Republican states, now fall into the “swing” category. Indeed, all sorts of examples can be cited along these lines. Texas used to vote Democratic. California used to vote Republican. New York voted for Ronald Reagan—twice. States that voted for Bill Clinton in the 1990s (e.g., Kentucky, Georgia, and Louisiana) are now solidly Republican states. I could go on. This history of states’ voting shows that the Electoral College is doing exactly what it should do: It ensures that political parties and presidential candidates must work hard to maintain the support of national coalitions of voters. They can never safely ignore any state or region. If they do so, their apathy toward those voters will come back to haunt them later. Such incentives in the presidential election process create a healthy situation for our country in the long term.

I would note, in closing, that our goal is not to create an election system that serves one voter in one state during one election year. Our goal is to maintain a system that will serve many generations of voters. The Electoral College has proven its ability to do that over the course of more than two centuries.



 Bio

Tara: Thanks for your response, and your candid expression of sympathies with the royalist-leaning Alexander Hamilton over Thomas Jefferson, who deplored the “sanctimonious reverence” with which some hold the provisional handiwork of earlier generations instead of trusting their own political understandings to advance democratic arrangements in the light of experience and experiment.

You think that the pervasive use of majority rule to elect the thousands of chief executives in our states, counties and cities is “irrelevant to the discussion.” That’s interesting, and sounds—to this state legislator, anyway—directly at odds with the system of “our Federalism” in which the national government should be deeply interested in learning from the states.

Your argument for disregarding democratic practices in the states is that, “The President is the only elected official in America who is expected to represent the entire nation.” But that is precisely why we need to have direct national election through the National Popular Vote mechanism. If you oppose a popular election for president because it is unjust to have 52% of the people govern 48%, how much more unjust is it to have 48% govern 52%?

I confess that I find your efforts to reduce the number of “wrong winner” elections from four to two strikingly unpersuasive. How does the existence of “rampant fraud, dishonesty, and controversy” in the election of 1876 prove the superiority of the fragmented state-based system which allowed these problems to flourish in the first place? (Does the existence of rampant fraud, dishonesty, and controversy in the 2000 presidential election demonstrate to the citizenry of our time the virtues of not having a national popular vote? Please explain your thinking on that.) And why does the continuing practice in 1824 of state legislatures appointing electors directly without state popular election count as an argument against having a national popular vote today? As I argued before, the current regime is a continuing and constant invitation to corruption, intrigue and state legislative gamesmanship. The problems you identify only bolster my position. Moreover, I could just as easily mobilize lots of cases in which the majority vote “winner” did not actually win because of “rampant fraud, dishonesty and controversy” or because of the pervasive practice of state legislatures directly appointing electors without consulting the people.

In truth, I do not see why you go to such great pains to try to minimize the incidence of the popular vote winner losing under the current regime. After all, your whole point is to reject majority rule and presumably to demonstrate the superior virtues of a system which will allow the popular vote loser to win under certain circumstances—circumstances which I hope you will come to precisely define. Indeed, if you could somehow perform the impressive intellectual acrobatics allowing you to explain away all four “wrong winner” elections, then I would assume that your argument against the national popular vote vanishes completely as a national popular election would guarantee us precisely the same wonderful results that we get under the electoral college regime which produced the miracle of 2000 and other wonders!

Finally, I am not moved at all by your creative explanation of why we should not care about the fact that the vast majority of Americans, in this presidential election as in other recent ones, have been reduced to the status of a spectator population because we live in “safe” states. You argue, quite correctly, that “there is no such thing as a permanently safe or swing state. . . Texas used to vote Democratic. California used to vote Republican,” etc. Thus, the fact that there is no presidential campaign in Texas or California this year because Texas is so strongly Republican and California so strongly Democratic should not trouble any voters in those states because, once upon a time, the states were competitive and the candidates did come and campaign there and actively organize for victory. But how does that help to improve turnout in this election? How does it give Republicans in California or Democrats in Texas (or vice versa) a meaningful incentive to go out and organize and vote? It is to the great and enduring credit of the Obama campaign that it has organized and galvanized the population in “safe” states but I can assure you, from personal experience, that it is mobilizing people to travel. We Obama organizers in Maryland are spending our weekends in Virginia and have even donated our precious campaign signs to people across the Potomac. Now, this has been a wonderful experience, but if we have a national election, Virginians campaigning for presidential candidates will have an equal incentive to come to us!

I should say that people have asked me recently about whether my feelings have changed about the National Popular Vote plan since the political dynamics and demographics of the existing electoral college regime could be changing to benefit my party, the Democrats. Not for a moment. The National Popular Vote plan is not about electing a Democrat president; it is about electing the president democratically. The compact is not meant to permanently favor one party or the other but simply to benefit the party that can best appeal to the majority of the American people. That is the principle I stand on; I confess that I still cannot find yours.



  Bio

Presidential elections are always won by the candidate who earned majority support. No one can win the presidency without first winning a majority of states’ votes. Jamie simply prefers a different measuring stick: individual votes. I believe our country appropriately relies upon tallies of states’ votes in presidential elections for many of the reasons that I have already discussed.

Having said that, such a system is admittedly not purely democratic. In a pure democracy, 51 percent of individuals always rule the other 49 percent—without question, regardless of the majority’s motivations or the impact on the rights of minority groups. Imagine the perils of a pure democracy in the wake of an event like 9-11. A bare majority could impose all sorts of oppressive restrictions on minority groups, even if that majority was merely reacting unthinkingly, perhaps in fear or anger. The U.S. Constitution grants several protections from this type of majority tyranny: for instance, the presidential veto; supermajority requirements to amend the Constitution; and the Senate, with its one state, one vote representation. The existence of these protections does not mean that the majority never rules in this country. The majority usually rules. But the minority also has the ability to throw up road blocks for majorities that have become unreasonable or tyrannical.

I believe Jamie misunderstood my arguments about 1824. I did not cite that election in support of my arguments so much as I disputed Jamie’s citation of it in support of his arguments.

The fraud in the 1876 election resulted from the fractured state of the country following the Civil War. To the degree the Electoral College was involved in that election, it helped. Chaos could have ruled nationwide, but it was instead isolated to four states. The same dynamic works today. In 2000, much of the litigation and controversy had very little to do with the Electoral College. The system did serve us, however, by isolating the existing issues to one state. We did not have to recount ballots (or argue about recounting them) in every state of the Union. Instead, we focused on figuring out what the true result of the Florida election was. Once that decision was reached, the country moved on to a certain election outcome.

Finally, Jamie seems unimpressed with the fact that the identity of safe and swing states is a moving target, instead bemoaning the lack of voter participation in certain states in individual election years. He implies that such problems would not exist without the Electoral College. But he compares our current system to an ideal world—a world that does not exist. Sure. In an ideal world, all presidential candidates would care about each and every individual voter equally. They would travel to each and every state each and every election year, obtaining individual votes one at a time. Voter participation would increase. After all, any vote cast in Wyoming is worth exactly the same as a vote cast in Los Angeles—right? But let’s face it. That is not real life. In real life, the rules of the presidential election game impact the strategies of candidates. Without the Electoral College, a presidential candidate would not travel to Wyoming, knowing that those votes are worth just as much as votes in L.A. Instead, the candidates would flock to densely populated urban areas, ignoring rural areas and small cities. A vote in L.A. might carry equal weight with the vote in Cheyenne, but the voter in L.A. also lives within shouting distance of millions of other voters. Candidates would get more bang for their buck with such a visit. Strategically speaking, they would be foolish to ignore this fact.

Also in real life, by the way, another sound bite offered by Electoral College opponents bites the dust. They might wish for a world in which it is possible to elect a president who has the support of most Americans. In reality, a majority of Americans will never agree on the identity of the best presidential candidate. Given the opportunity, they will fracture their votes across many candidates. Elimination of the Electoral College would provide this opportunity because it would likely lead to the demise of our stable two-party system. In a multi-party system, candidates are no longer striving for a majority (or even a large plurality!) of anything, be it individuals’ or states’ votes. Instead, they are merely working to beat out everyone else. Even a small plurality of voters (15 or 20%) could land a candidate in a run-off or (with the National Popular Vote plan in place) land them in the White House. Presidents would not have a sizable base of support. Most Americans preferred someone else. At least the Electoral College forces Americans to come together and agree on a good compromise candidate.

We should consider that in any game, rules are established for a certain purpose. An often-cited analogy in this context is America’s traditional pastime, baseball. The rules of baseball rely upon a “most games won” rather than a “most runs scored” criterion. These rules are meant to ensure that occasional, stellar performances by a team do not earn it a berth in the playoffs or the World Series. Instead, the goal is to ensure that the two best overall teams face off at the end of the year and that the best of these two teams is crowned the winner. The rules for the presidential election contest are established with a similar purpose. They seek to identify the best national candidate, overall. The system leans in favor of candidates whose strengths play out evenly, rather than those who perform brilliantly in one part of the country but terribly in other regions. Particularly for a country as large and diverse as America, these election rules make a great deal of sense.



 Bio

Tara: I want to thank you for packing every fallacy, canard, and cliché about the current electoral college regime into your last post so I can try to address all of them before signing off!


You say: “Presidential elections are always won by the candidate who earned majority support. No one can win the presidency without first winning a majority of states’ votes.”

 

This is false. To begin with, presidential elections are not “always won by the candidate who earned majority support,” witness the 2000 election in which Vice President Gore collected more than a half million more votes than did then-Governor Bush, whose strategists secured a victory in the electoral college. Nor is it true that, “No one can win the presidency without first winning a majority of states’ votes.” Even if you mean “electors” when you say “votes,” this is wrong, for the Constitution expressly foresees that it will sometimes be the case that no one wins a majority of presidential electors from the states, in which case the House of Representatives conducts a contingent election and chooses a president from the top three electoral college vote winners, with each state delegation in the U.S. House of Representatives (California and Rhode Island alike) casting a single vote. In this scenario, the winner who survives the maze does not have to be the majority winner of either actual votes or electoral college votes. Under the National Popular Vote plan, the winner will always be the candidate who receives the most votes in the popular election.

 

In your brief against majority rule, you invite us to “imagine the perils of a pure democracy in the wake of an event like 9-11. A bare majority could impose all sorts of oppressive restrictions on minority groups, even if that majority was merely reacting unthinkingly, perhaps in fear or anger.”
 

Actually, it does not take much to imagine such a thing since this is precisely what happened: the Bush administration engaged in warrantless spying, illegal rendition, torture of people in U.S. custody, assaults on habeas corpus and due process, lying to the American people to go to war, and so on. Except that these “oppressive restrictions” were perpetuated by a president “elected” by a minority. What you miss in citing the presidential veto and the U.S. Senate as checks against tyranny is that the real constitutional restraint against tyranny by the president (or Congress) lies in the Bill of Rights and judicial review of both law and executive action. One hopes that these mechanisms will apply to protect the people against overreaching by all tyrannical presidents, whether they have received a minority of the popular vote, like President Bush, whose War on Terror policies have been slapped down several times by the Court, or a majority of the vote like Richard Nixon, who also waged war on civil liberties through the COINTELPRO program, domestic spying, the surveillance and harassment of people on his Enemies’ List, and so on.

If I read your sarcasm correctly, you seem to doubt that “voter participation would increase” in the “ideal world” of the National Popular Vote, but your skepticism is misplaced. Voter turnout is considerably higher right now in swing states than it is in safe states. Studies from 2004 show that voters in swing states turned out at a rate of 5-10% above the national average. Should we really doubt that turnout would increase across-the-board when all of our votes count equally and all of us, in effect, live in swing states?

One can only assume that you do not appreciate the irony of your having chosen Wyoming for your thought experiment. You state (again sarcastically, if I read you correctly) that “any vote cast in Wyoming is worth exactly the same as a vote cast in Los Angeles—right? But let’s face it. That is not real life. In real life, the rules of the presidential election game impact the strategies of candidates. Without the Electoral College, a presidential candidate would not travel to Wyoming, knowing that those votes are worth just as much as votes in L.A.”

Let’s start with this: A vote in Wyoming, in a mathematical sense, is actually worth far more than a vote in Los Angeles because the two elector bonus add-on radically inflates the numerical power of the small states against the big states. This is an unjustifiable departure from the one person-one vote principle. But you support this irrationality because, “Without the Electoral College, a presidential candidate would not travel to Wyoming. . .” What’s comical about this is that, in “real life,” the candidates rarely or never travel to Wyoming to campaign any more than they go to Los Angeles to campaign (although they do go there to raise money). Why not? The reason is simple: Wyoming is safe Republican territory and it would waste the time of either candidate to spend an hour there. This, too, is an unjustifiable departure from the one person-one vote principle. But I hope that Tara can see that candidates do not go to large states nor to small states; they go to swing states and, within that small band, they spend a disproportionate amount of time in the larger ones, i.e. Florida and Ohio.

You predict that, under the National Popular Vote, “candidates would flock to densely populated urban areas, ignoring rural areas and small cities.” This point reflects ignorance of where Americans live today and how candidates actually campaign. Most people do not live in big cities, so appealing primarily to people who do is not how candidates get elected in statewide races. Take my state, Maryland. If a candidate for governor tried to win by focusing all of his resources on Baltimore, it would be a suicidal strategy. Candidates win by campaigning statewide, including the Eastern shore and western counties but especially in the suburban areas that dominate our politics now. Predictably, the use of campaign time tends to be a fair reflection of where the whole population actually lives. Was Arnold Schwarzenegger elected governor in California by devoting all of his resources and campaign time to Los Angeles and San Francisco or did he actually campaign in the rest of the state? I understand that he did. If there is any deviation from a fair allocation of campaign resources according to voting population in a National Popular Vote election, I suppose that it would be in favor of campaigning in areas where media time is cheaper—that is, those away from major metropolitan media markets. Wyoming, here we come!

You assert that “elimination of the Electoral College” (which we are not proposing in the National Popular Vote plan) “would likely lead to the demise of our stable two-party system.” You do not explain this conjecture at all and everything that political science teaches us would suggest that you are wrong. Governors and U.S. Senators are all elected by direct popular vote and this mechanism has not destroyed what you call the “two-party system” in the states. Indeed, it is the existing electoral college regime which racists have manipulated with third-party candidacies for more than a century to halt progressive action on civil rights by the Democratic Party. Dixiecrats Harry Byrd, Strom Thurmond, George Wallace all stepped outside of the Democratic Party to run as “racial conservative” Independents in the last century and to strip a few dozen presidential electors from the Democrats, sending a sharp message about the costs of abandoning racism. And what of Ross Perot? Did he twice undermine our “stable two party system” under your preferred technique of choosing a president? Think about it. If you were Ralph Nader, and you wanted to “spoil” the “stable two party system,” do you have a better chance of doing it in a national popular vote where you have to compete everywhere or in the current system by concentrating all of your resources in a swing state, like Florida for example, and trying to divert enough votes there to shift the election to the Republicans? Recall that Nader received more than 90,000 votes in Florida in 2000 while Bush “beat” Gore by just over 500.

Now I happen not to believe that we have a “two party system” in any legal sense since the Constitution does not mention political parties, much less a two-party system, much less two specific parties. I believe in free political competition. But, in the event that propping up the “two party system” is indeed a value of yours, you are better off with a national vote than a deeply fragmented and decentralized system where third party candidates can intervene strategically in one or two battleground states to throw the election this way or that.

Your baseball analogy is only superficially appealing. The current system of choosing the president is more akin to declaring as the winner of the World Series not the team that won the most games but the team that won the most innings. The National Popular Vote plan focuses on what is truly meaningful—the popular support of the candidate—and will give us precisely “the best national candidate, overall.” When you say that today the “system leans in favor of candidates whose strengths play out evenly, rather than those who perform brilliantly in one part of the country but terribly in other regions,” you have it exactly backwards. When you look at the Bush electoral college victory maps, they are geographically polarized, i.e. Solid South versus New England, conservative farm states versus the coasts, etc. It is the current regime that invites presidents to run not at large for all of the American people but to try to stitch together narrow coalitions of red-states-and-purple-states or blue-states-and-purple-states. If we want presidents to represent the whole nation and to seek support everywhere, and to govern for the common good of all, we should have a national election in which every American’s vote counts and every American’s vote counts equally. Anything less undermines democracy.