The Electoral College: An Internet Age Dinosaur (Part 5): Is the National Popular Vote Proposal a Workable Alternative to Electoral College Abolition?

The Electoral College: An Internet Age Dinosaur (Part 5):

Is the National Popular Vote Proposal a Workable Alternative to Electoral College Abolition?

This post discusses the National Popular Vote (“NPV”) proposal, a widely supported alternative to amending the Constitution to abolish the Electoral College. Supporters argue it would achieve the same result as abolition. And they contend that it will be exceptionally difficult, perhaps even impossible, to amend the Constitution instead. [1] Anyone who supports popular election of the President should support the NPV proposal, for reasons given in previous posts in this series as well as those below. However, there are important questions about supporters’ claims that it is guaranteed to work in practice under current law. To ensure that it will work, supporters should get it approved by Congress as an interstate compact.

What is the National Popular Vote Proposal?

Here’s how the National Popular Vote (“NPV”) proposal works. Each participating state adopts legislation agreeing that it will cast all of its electoral votes for the national popular vote winner if enough other states (that is, states together possessing 270 electoral votes or more) agree to do so. Once enough states adopt the NPV proposal, it will go into effect. [2] For purposes of this post only, let’s assume that the NPV proposal is constitutional. [3] It is carefully thought out. In principle, it achieves the same results as amending the Constitution to provide for direct election of the President by a national popular vote.

How Much Support is there for the NPV Proposal?

As of early 2015, eleven states (including New York and California), with a total of 165 electoral votes, have passed this legislation. It has also passed at least one legislative house in several other states. Supporters state that there is strong popular support in every state for which polling data are available for electing the president by a national popular vote. [4] And they claim that the NPV proposal has bipartisan support. According to nationalpopularvote.com, “For example, the most recent state to enter the compact is New York, in April 2014. In the Republican-controlled New York Senate, the chamber approved of the bill 57-4, and majorities of both parties voted for the bill in both legislative chambers.” [5] Now, to simplify life even more, let’s assume that the NPV proposal is adopted by enough states so that it goes into effect. [6]

Is the NPV Proposal Guaranteed to Work in Practice?

But is the NPV proposal guaranteed to work in practice as supporters claim? Unfortunately, no. It has an Achilles’ heel that must be overcome: it is very likely under current law that the NPV compact would be unenforceable if a State reneged on an agreement to observe it during an election. [7] Here’s what has happened in the past, and might happen in a future election even under the NPV.

During the 1800 election, in which John Adams and Thomas Jefferson were the major party candidates, legislatures in at least four states (three of them very large ones) deliberately changed their laws for distributing electoral votes to try to alter the outcome in favor of the candidate preferred by the state legislature. In Pennsylvania alone, Thomas Jefferson probably lost 7 out of the 15 Pennsylvania electoral votes as a direct result of the legislative change (about 10 percent of his total vote). [8] Thus, it is not unrealistic to think that in a future close election, partisans of one candidate or another might try to persuade a legislature to renege on its agreement to observe the NPV.

Imagine what the 2000 presidential election (George W. Bush v. Albert Gore, Jr.) would have been like if states that together had a small majority of Electoral College votes (say, 280 or 290), including Florida, had adopted the NPV prior to the election. Suppose Florida’s legislature had then changed its mind and given its twenty-nine (29) electoral votes to the national popular vote loser (Bush), changing the election outcome. NPV supporters’ argument that if the NPV had been adopted by Florida, its legislature could be prevented from changing its mind in such a case (for example, by an NPV provision or by a federal law purporting to limit the legislature’s freedom of action), is likely to lose under current Supreme Court precedents interpreting Article II. Instead, the Supreme Court would quite probably uphold the election of the Electoral College winner (see note 9). [9] Therefore, there is no guarantee that the NPV will work as intended in cases where states renege.

What Should NPV Supporters Do to Assure It Will Work?

Because state legislatures would retain their ability to renege even after adopting the NPV, its supporters would be well-advised to get Congress to approve the NPV as an “interstate compact” under Article I of the Constitution. Congressional approval would guarantee the NPV compact’s enforceability because the Supreme Court would then unquestionably be willing to enforce the compact’s terms (including limits on withdrawal) against participating states.

While getting Congressional approval would not be easy—given pressure from small states, partisan groups, etc.—the debate on the proposal would be healthy. Remember that, in 1969, the Democratically-controlled House of Representatives voted—by a very large margin—in favor of a constitutional amendment abolishing the Electoral College—and it did so with the support of Republican President Richard Nixon, among others. [10] For various reasons, it should be easier to gain approval for the NPV than it would be for an amendment abolishing the Electoral College. Getting Congressional approval would also avoid a situation where Americans in states that were not parties to the compact—which together might well have nearly as many electoral votes as the NPV compact states—felt as though they had been disenfranchised by the NPV.

NPV supporters have stated that it is their position that Congressional consent for the NPV compact is not required but that “nonetheless, National Popular Vote is working to obtain support for the compact in Congress.” [11] Congressional consent is more than simply desirable—it is necessary to guarantee that the NPV will actually work even in the heat of a sharply contested election like the 2000 election. The alternative is to risk politically tragic Supreme Court intervention on behalf of the popular vote loser in yet another presidential election.

Notes

1. History suggests that at least if an abolition proposal were considered by itself, they’re probably right. But note that politically, this is completely different from whether it would be possible to eliminate the Electoral College as one of a series of changes to the Constitution proposed as part of its general revision by a national convention, a concept that will be explored in a later post.
2. Details on the proposal and its current status and support can be found at supporters’ websites: http://www.nationalpopularvote.com; http://www.fairvote.org/reforms/national-popular-vote (accessed 01/07/2015). For a history of the Electoral College and efforts to replace it with direct election of the President, including detailed legal analysis of a National Popular Vote proposal see http://www.every-vote-equal.com/pdf/EveryVoteEqual_web.pdf (accessed 01/10/2015).
3. For a contrary argument, see Norman R. Williams, “Why the National Popular Vote Compact is Unconstitutional,” 2012 BYU Law Review 1523 (2012). For other analyses of the constitutional questions, see particularly the sources cited by Williams at 1525 n. 6, 1526 n. 10, and 1538 n. 67.
4. See state-by-state data in discussion of Myth No. 24, http://www.nationalpopularvote.com.
5. The bill passed the New York Assembly by a vote of 100-32. See http://www.capitalnewyork.com/article/albany/2014/03/8542603/legislature-approves-national-popular-vote (accessed 01/09/2015).
6. It’s not clear that this will actually happen. Each of the states that has adopted the NPV proposal to date has uniformly voted for the Democratic presidential candidate in every one of the past six presidential elections (1992-2012). Some observers believe that it will be difficult for NPV supporters to line up enough additional states to reach their goal of passage by states with more than 270 electoral votes. Some resistance may be based on the same sorts of parochial reasons that have prevented the Electoral College from being abolished so far (see earlier posts in this series). Popular election of the president isn’t a “partisan” issue. Of course, true partisans probably won’t see it that way—so “red” states aren’t especially likely to sign up to the NPV proposal. And key “purple” or “swing” states may not want to do so either—precisely because at least some of them are “winners” under the Electoral College system, since they have more influence under that system than they would under the NPV proposal. See the discussion in James Joyner, “New York becomes 11th state to pass national popular vote law,” April 18, 2014, http://www.outsidethebeltway.com/new-york-becomes-11th-state-to-pass-national-popular-vote-law.(accessed 01/07/2015).
7. The NPV has a provision that is intended to prevent states from reneging in this way—but the important question is whether it can be enforced.
8. For the details, see Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: W.W. Norton and Co., 2005), 98, 822 nn. 57-58.
9. In the Supreme Court’s view, under Article II of the Constitution state legislatures have unrestricted rights to determine how a state’s electoral votes will be cast—they don’t even have to hold a popular vote to decide this. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, rev. ed. 2009), 20. For arguments in favor of enforceability, see http://www.every-vote-equal.com/pdf/EveryVoteEqual_web.pdf, Chapter 8, section 6.2, p. 352-58. The determinative question regarding enforceability is this: given the Supreme Court’s interpretation of Article II’s Electoral College provisions and its interpretations of the Contract and Compact clauses, which provision will the Supreme Court decide “trumps” the others in the event of an apparent conflict (assuming that there is a conflict, which itself is debatable). Suffice it to say that the arguments for enforceability made by supporters are, unfortunately, quite unlikely to persuade the Supreme Court. It would be very desirable for supporters of the NPV to be realistic about the strength (or lack thereof) of those arguments.
10. In 1969, the House of Representatives passed a proposed constitutional amendment providing for the direct election of the President by an overwhelming vote of 338-70, or 83 percent of the House members voting. At the time, the idea of direct election of the President was supported by a broad range of interest groups with differing political views, ranging from the U.S. Chamber of Commerce, to the AFL-CIO, to the American Bar Association, to President Nixon. The proposed constitutional amendment died in the Senate, though it had substantial support there as well. Lawrence D. Longley and Alan G. Braun, The Politics of Electoral College Reform, 2d ed. (New Haven: Yale University Press, 1975), 150, 172-75.
11. See Myth 1.16.5, The National Popular Vote compact requires congressional consent to become effective, http://www.nationalpopularvote.com/pages/answers/section.php?s=16.

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The Electoral College: An Internet Age Dinosaur (Part 4)

THE ELECTORAL COLLEGE: AN INTERNET AGE DINOSAUR (PART 4)

Faced with persuasive evidence that the Electoral College is remarkably anti-democratic and even dangerous to America in today’s world, its supporters make two primary arguments in its defense. [Note 1] They argue that it should be preserved because it protects the interests of the states, particularly small states, as distinct political entities by giving them added influence in presidential elections (and thus in national policy). And they argue that it protects limited government. Both claims are badly flawed.

Do States Need Electoral College Protection?

Whether it was desirable to treat states as entities deserving special constitutional protection was hotly debated when the Electoral College was created in 1787. Most large state delegates in Philadelphia—and here we can include illustrious Founders such as Madison, Wilson, Hamilton, Franklin, King, and Washington—thought that there was no legitimate reason whatsoever to give states special political advantages in the national government without regard to their population size or wealth merely because they were states. Quite to the contrary, delegates such as James Madison adamantly believed that proportional representation of states based on wealth or population should be the rule for both Houses of Congress in a truly republican government.

Nor was this a new view in 1787. As early as 1776, John Adams of Massachusetts said during Congressional debate over representation in the Confederation that “the individuality of colonies is a mere sound.” [Note 2] By this Adams meant that it was profoundly erroneous to treat colonies as sovereign and equal political entities in the process of building a nation. Yet small states were able to force the 1787 Philadelphia Convention to protect their corporate interests in a variety of ways, such as equal state voting in the Senate and the Electoral College. But this was merely powerful testimony to their bargaining leverage given the urgent political and military need for consensus Convention members believed existed, not proof of the merits of their position. [Note 3]

But continuing a two-century old expedient compromise that gave states as states special influence in Presidential elections is no longer necessary or desirable today. We do not elect Presidents to represent states; they are elected to represent the nation and all of its people. State power in presidential elections cannot be enhanced for some states without prejudicing the interests of the nation, of other states, and of individual voters; it is a zero-sum game (i.e., a game in which when someone wins, someone else must lose, as in dividing up a cake). Other features of the Constitution adequately protect federalism and state interests, without the serious negative side-effects created by the Electoral College. Both the Senate and the Supreme Court have historically been both willing and able to protect state powers and prerogatives under the Constitution. The Court’s federalism decisions in recent years confirm this. For example, look at the Court’s decision in the Affordable Care Act case, in which the Court majority held that Congress had no power to force states to expand Medicaid against their will. [Note 4]

Can Protecting Limited Government Justify the Electoral College?

The argument that the Electoral College is needed to protect limited government is also deeply flawed. Of course, many people think that “limited government” (which often means different things to different people) is desirable. [Note 5] And it is quite possible that the Electoral College effectively supports that view, because its operation exaggerates the political influence of areas of the country (often, small “red” states) where a majority of residents prefer more limited government. But this is actually further proof that the Electoral College is inconsistent with the underlying spirit of the Constitution itself, not an argument in favor of the Electoral College.

America’s history over the past century shows that most Americans reject the view that the Constitution’s purpose is to cast in concrete a particular set of social and economic relationships. Instead, Americans periodically have decided that government’s role in American life should be changed or expanded as social conditions change. For example, Congress did this in adopting major New Deal legislation such as the Social Security Act, and labor and stock market regulation. Since the New Deal, the Supreme Court has generally accepted such changes, except where they clearly violated constitutional rights or structural principles. In the process, the Court has essentially agreed with Justice Holmes’ famous dissenting view, in a case that struck down New York state protective social legislation, that:

…[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. [Note 6]

Instead, as Holmes saw, the Constitution’s primary purpose is to provide a fair and orderly mechanism through which the people, the ultimate source of political power and legitimacy in our democracy, may peacefully decide (through representatives) that fundamental social or economic changes are needed and put them into effect. [Note 7] In contrast, to argue that the Electoral College is needed because it effectively protects limited government by exaggerating its supporters’ influence is in reality to argue that it is desirable to prevent constitutionally permissible political changes sought by the majority of the people by artificially blocking or distorting the operation of their will. This is inconsistent with the underlying spirit of the Constitution and especially with our nation’s pressing need for peaceful but effective change to improve our government, so this argument for the Electoral College must be rejected. If supporters of limited government are going to prevail, they need to do it through the democratic process, not through the Electoral College.

In deciding whether to continue the Electoral College, therefore, it is important to weigh the evidence of its serious disadvantages only against real benefits to the nation as a whole, not against the supposed benefits to states or to supporters of limited government.

NOTES

1. For this evidence, see Parts 1-3 of this series of posts.
2. Adams in Thomas Jefferson, Writings (New York: Library of America, 1984), 29.
3. Though, unlike Adams, various individuals then did believe that states should be treated as sovereigns, this is beside the point here. We can also disregard for present purposes the fact that the Electoral College politically strengthened slavery during the early American republic.
4. National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services, 567 U.S. ___ (June 28, 2012).
5. Observations about the role of government here are not intended to imply any view on the desirability (or lack of desirability) of government’s role in any part of national life–instead, they concern only how such views relate to the structure of the Constitution.
6. Lochner v. New York, 198 U.S. 45 (1905), at 198 U.S. 75-76 (Holmes, J., dissenting).
7. Justice Holmes’ extensive service as a soldier in the Civil War made him exceptionally well-qualified to advance a view of the Constitution conducive to peaceful social change. For Holmes’ moving reflections on the Civil War, see his May 30, 1884, Memorial Day Address, “In Our Youth Our Hearts Were Touched with Fire,” http://people.virginia.edu/~mmd5f/memorial.htm.

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The Electoral College: An Internet Age Dinosaur (Part 3)

THE ELECTORAL COLLEGE:  AN INTERNET AGE DINOSAUR (Part 3)

Earlier posts in this series showed that the Electoral College is not only anti-democratic; it is also potentially dangerous to America’s future.  This post discusses another reason to abolish the Electoral College that will appeal to many citizens:  it artificially protects the dominant political position of the two major political parties.  Many people believe that as coalitions of strange bedfellows, those parties have lacked coherent ideas for decades.  An important reason they still survive is the strong protection against competition they receive from the Electoral College.  It permanently prevents the rise of serious national third-party candidacies.  This protection is so obvious that some political scientists have even described it as one of the benefits that justifies the College’s continued use.[1]  Here is how that protection works.

Throughout America’s history, presidential candidates with strong regional appeal have periodically arisen, such as South Carolina Senator Strom Thurmond in 1948 or Alabama Governor George C. Wallace in 1968.  There have also been a smaller number of truly national third-party candidacies such as that of Theodore Roosevelt in 1912.  The Electoral College affects these regional and national third-party insurgencies in distinctly different ways.   As two political scientists who studied the system extensively conclude:  “The Electoral College system is quite clear in its bias:  it favors third parties with a sectional orientation, and it discriminates against those with a national orientation.”[2] As a result, strong sectional third party candidacies such as the Wallace candidacy might sometimes be able to throw presidential elections into the House of Representatives by denying either major party candidate a majority of the Electoral College vote.[3]  In that event, there will be some bargaining for the votes of Congressmen from states supporting the third party candidacy which may in turn influence national policy, but the third party candidate is highly unlikely to win the election and become president.  And national third-party candidates are unlikely to ever win either.

National third-party candidacies are seriously impaired by the effects of the “unit rule” (statewide winner-take-all voting for the Electoral College electors) and the need to compete in party stronghold states where the dominant major party is protected by that rule.[4]  The unit rule helps Republicans who are in control in some states boost the chances of Republican candidates there, and it helps Democrats who control other states to do the same thing for Democratic candidates.   But in both cases it leaves minority voters in those states without any voice.  In 1992, for example, businessman Ross Perot received more than 19.7 million votes—18.9 percent of the total vote cast—and did not receive a single vote in the Electoral College.[5] In the 1992 presidential election, George H.W. Bush won all twenty-five of the electoral votes of Florida even though he received only 41 percent of the vote there, as opposed to the 59 percent of the vote received by Bill Clinton and Ross Perot.  On the other hand, Bill Clinton won all fifty-four of the electoral votes of California, though he received only 46 percent of the votes there.

Third-party candidates with national popular appeal—such as Ross Perot or Theodore Roosevelt—can draw votes away from the major parties across the country.  In those parts of the country where one major party is politically dominant (so-called “Red” or “Blue” states), even the votes lost to a nationally significant third-party candidate are likely to leave the dominant major party with a plurality, so it will still receive all of the Electoral College votes.   It is possible, though, that a third-party candidacy will change the outcome that would otherwise occur between the two major parties by drawing votes away from the leading major party candidate (as an example, Ralph Nader’s 97,000-plus votes in Florida vs. the state’s loss by Vice-President Albert Gore to George W. Bush in the 2000 election by 537 votes).[6]

But the national third-party candidacy would need to be exceptionally strong before it would change the outcome so much that the third-party would win.  Under the Electoral College, the third-party candidate will normally be shut out entirely or receive an electoral vote far smaller than its popular vote.  This is what happened to Theodore Roosevelt, probably the most popular third-party candidate of the twentieth century, when he ran in 1912. Roosevelt won 27 percent of the popular vote, or nearly 70 percent of Woodrow Wilson’s popular vote total.  Roosevelt received only 20 percent as many Electoral College votes as Wilson, however.

In the presidential elections from 1992 through 2012, more than half of all states have been won consistently by one major party or the other, and these states have a total of more than 344 electoral votes (more than sixty percent of the Electoral College total vote).[7]  This means that to win, a third-party candidacy must be strong enough either to seriously challenge one of the two major parties in its stronghold states by winning a plurality of votes in some or all of those states, and that it must also win a plurality in all of the states that shift allegiances from election to election.  This level of electoral success is a tall order, a heavy burden imposed entirely by the Electoral College, since a strong national third-party candidacy like Theodore Roosevelt’s might well survive in a system that used a national runoff.  Roosevelt, after all, came in second to Wilson in 1912 in the popular vote.  So the College serves as a formidable barrier to third-party candidacies.

The long and short of it is this:  if you like one or both of the the two major parties, and think that they’re just the right folks to lead America into the future, you should want to keep the Electoral College.  If, on the other hand, you think that they’re both pretty much bankrupt and would like to see some real political competition for a change, you should favor getting rid of it for this reason as well.

Notes

[1] Larry Sabato, A More Perfect Constitution (New York:  Walker & Company, 2008), 138-39.

[2] Lawrence D. Longley and Alan G. Braun, The Politics of Electoral College Reform, 2d ed. (New Haven: Yale University Press, 1975), 9.

[3] In 1968, Wallace carried five states and received 46 electoral votes.  By May, 1972, he had already won three state primaries, including Florida, and was favored to win two additional primaries and expected to have at least ten percent of the total votes at the Democratic convention when an assassination attempt left him permanently paralyzed.  See William Greider, “Wallace Is Shot, Legs Paralyzed; Suspect Seized at Laurel Rally”. Washington Post, May 16, 1972 (accessed 12/28/2014).

[4] Although the use of the “unit rule” is not required in allocating state electoral votes, at present it is used in forty-eight states.  In 1800, when Thomas Jefferson was elected, it was used in two states.  In any two-party system where the unit rule is a permissible option, there are strong incentives to adopt it, so it’s fair to think of the unit rule as part of our Electoral College system.

[5] Joseph A. Pika and John Anthony Maltese, The Politics of the Presidency, 6th ed. (Washington, D.C.: CQ Press, 2004), 68.

[6] Ralph Nader denied that his candidacy had had a “spoiler” effect, but it is clear that there will be elections where a third-party candidate will actually change the election result.  This is an important reason why major parties periodically engage in surreptitious support for third-party candidates, hoping to draw votes from an opponent.

[[7] Dan Balz, “The Republican Party’s uphill path to 270 electoral votes in 2016 elections,” Washington Post, January 18, 2014, http://www.washingtonpost.com/politics/the-gops-uphill-path-to-270-in-2016/2014/01/18/9404eb06-7fcf-11e3-93c1-0e888170b723_story.html (accessed 12/28/2014).

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THE ELECTORAL COLLEGE—AN INTERNET AGE DINOSAUR (PART 2)

THE ELECTORAL COLLEGE—AN INTERNET AGE DINOSAUR (PART 2)

This post discusses two important political costs that the Electoral College imposes on America’s political system.  The first is that it periodically elects “minority” Presidents; that is, candidates who have lost the popular vote can become President.  The second is that it confers great political influence on strategically located special interest voting blocs—influence that is often grossly disproportionate to their actual size.  Our increasingly strained system can no longer afford these costs.[1]

The Electoral College has elected Presidents who lost the popular vote several times during our history, most recently President George W. Bush in 2000.  Some would dismiss this “minority president” problem as being the result of a small series of unpredictable flukes.  But political scientists believe that it is precisely when Presidential elections are closest—i.e., most competitive—that the chances are greatest that using the Electoral College system will result in the election of a Presidential candidate who receives a popular vote minority.  Of the eleven presidential elections in our history through 2008 in which the leading candidate had a margin of less than three points over his closest competitor, the Electoral College (assisted by the Supreme Court in at least one case) has chosen a candidate who did not receive a popular vote majority in at least three (some would say four), elections. [2]  In other words, we overrule the popular will and elect a minority President between one out of every three and one out of every four times in close elections.  Yet those are precisely the elections when voters think that the outcome matters most and when the violation of democratic principles is most harmful.

Electing minority presidents is also dangerous, because it can lead to the election of a President who is viewed as illegitimate by a large part of the American people.[3]   As the events of September 11, 2001 proved, America cannot afford to have a President who is seen as illegitimate.  When the United States came under terrorist attack, President Bush needed to be able to perform his role as Commander-in-Chief without facing any questions about his legitimacy whatsoever.  But Bush had lost the popular vote in the 2000 election to Albert Gore, Jr.  That fact, together with the Supreme Court’s extraordinary intervention in the 2000 election through its Bush v. Gore decision, had brought Bush’s legitimacy as President into question for many people.[4]  More than two years after the election and well after the 2001 attacks, 38 percent of the American population still did not consider George Bush the legitimate president of the United States.[5] We need Presidents who can exercise the full powers of that  office with unquestioned public support for his or her right to exercise them.  Minority presidents lack the needed legitimacy to gain that support.  And there is another large cost imposed by the Electoral College on our political system—it unfairly gives disproportionately large influence to special interest voting blocs in strategic states. Here’s how.

Under the Electoral College structure (combined with the “winner take all” unit rule for choosing electors), small blocs of interest group voters located in strategic states who will all vote the same way based on an issue of overriding concern to them can “swing” the outcome of Presidential elections.  The result is that satisfying the political interests of those bloc voters becomes far more important to candidates than it would be otherwise.  The nature of the membership of such strategically placed blocs has changed over time as our population has grown and the concentration of various demographic and political groups has shifted from one part of the country to another through migration. For example, during the 1990s, it appears that rural voters were disadvantaged by the Electoral College because their vote was concentrated in electorally less important smaller states, while Hispanic voters were given a significant voting advantage by it because their vote was concentrated in electorally influential large states.[6] During some earlier time periods, it appears that the Electoral College may have given a significant advantage to Jewish voters, who tended to be concentrated in states that had large numbers of electoral votes.[7]

In some states where the major parties are very competitive, these strategic blocs may consist of as few as 100,000 voters.  By comparison, in the 2012 election, more than 129 million votes were cast, and Barack Obama was elected president by a nationwide margin of about 5 million votes, so the loss of 100,000 votes would be of little consequence in a popular vote system.  If the Electoral College did not exist, therefore, these same bloc voters would have no more influence on Presidential politics than any other similarly-sized group of voters.  The possibility of presidential “rewards” to favored blocs is especially troublesome in the context of national security and foreign affairs, when policies not in the national interest may be adopted to curry favor with a particular bloc of voters, such as an ethnic group whose members are concentrated in a few strategically important states.[8]

The temptation to pander to bloc voters in order to win close elections can be very great.[9]  In 2016, for example, it is quite likely that enormous attention will be paid to the political demands of relatively small voter blocs in fewer than ten contested swing states with roughly 100 electoral votes (out of a total of 538 votes), since they may well decide the election outcome. To allow the special interests of such small groups of voters to control presidential election outcomes cannot be good for the country, and would occur far less often in a popular vote system.

That the Electoral College elects minority-vote presidents and also gives vastly disproportionate influence to strategically located special interest groups are only two of several very good reasons to abolish it.

.

[1] The Electoral College also prevents the rise of national third-party presidential candidates, a large cost that will be discussed in a later post.

[2] These three elections are 1876, 1888, and 2000.  Lawrence D. Longley and Neal R. Pierce, The Electoral College Primer (New Haven: Yale University Press, 1996), 135; George C. Edwards III, Why the Electoral College is Bad for America (New Haven: Yale University Press, 2004), 45.  Some political historians would add a fourth, based on the fact that the House of Representatives chose John Quincy Adams as President in 1824 over Andrew Jackson, although Jackson led the Electoral College voting by a large margin (but failed to achieve a majority) and quite probably would have been the popular vote winner (had popular votes been cast).  If 1824 is included, the rate of Electoral College failure to choose a popular vote majority candidate correctly in close elections would be greater than 35 percent.  Some might see Abraham Lincoln’s election with less than 40 percent of the popular vote as a counterexample, though.

[3] Joseph A. Pika and John Anthony Maltese, The Politics of the Presidency, 6th ed. (Washington, D.C.: CQ Press, 2004), 52, 67-70.

[4] Justice Stephen Breyer’s dissent in Bush v. Gore persuasively argued that the 2000 election should have been decided by the House of Representatives.  Doing so would very probably not have changed the election outcome.  Thus, the argument that the Court’s decision was both legally wrong and misguided is not “sour grapes.”  Bush et al. v. Gore et al., 531 U.S. 98 (2000), at 144 (Breyer, J., dissenting).  The decision’s greatest political vice was the damage it did to Bush’s political legitimacy, which would have been greatly strengthened by winning a contested House election, just as Jefferson’s was strengthened by the hotly contested 1800 House election he won.

[5] George C. Edwards III, Why the Electoral College is Bad for America (New Haven: Yale University Press, 2004), xvi.

[6] Lawrence D. Longley and Neal R. Pierce, The Electoral College Primer (New Haven: Yale University Press, 1996), Table 21, 148.

[7] Id..

[8] For a good recent example of these potential election dynamics, see Nate Cohn, “Why the Cuba Issue No Longer Cuts Against Democrats in Florida,” New York Times, December 17, 2014, http://www.nytimes.com/2014/12/18/upshot/why-the-cuba-issue-no-longer-cuts-against-democrats-in-florida.html?_r=0&abt=0002&abg=0 (accessed 12/19/2014).  Note that the merits of President Obama’s decision are irrelevant to the political analysis here.

[9] For a classic example of the political calculations that result from the existence of strategic bloc voting in an Electoral College system, see the memorandum to President Truman from his senior adviser Clark M. Clifford, “Memorandum for the President,” November 19, 1947, available at http://www.trumanlibrary.org/whistlestop/study_collections/1948campaign/large/docs/documents/pdfs/1-1.pdf. (accessed 12/19/2014). Though it was written in 1947, this memorandum is still entirely relevant to today’s presidential politics.

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The Electoral College: An Internet Age Dinosaur (Part 1)

The Electoral College:  An Internet Age Dinosaur (Part 1)

For 225 years, the Electoral College has elected the American President, not the American people.  In fact, it was created to prevent Presidents from being elected by popular majorities.  Constitutional scholar Akhil Amar called it “a constitutional accident waiting to happen” in 1998.  Shortly afterwards, it caused bitter political controversy.[1]  In 2000, George W. Bush, who lost the popular vote, was still elected president by winning Florida’s electoral votes–at least according to five unelected Supreme Court justices.  This post explains how the Electoral College works, why the Founders created it, and why it is a dinosaur in the Internet Age.[2]

The Electoral College may seem mysterious, but it is based on a few simple rules.[3]  All actual votes for President are cast by individuals called “electors,” not by ordinary voters. [4]   Electors are chosen  by states.  Each state receives one elector for each Senator and Congressional seat it has.[5]  State legislatures are free to decide how to choose electors.[6]  Individual Americans have no constitutional right to vote even for Presidential electors, let alone directly for President.[7]  All fifty state legislatures could decide to choose the Presidential electors themselves, and negate the results of a popular vote for electors, even after the popular vote had all been cast.  If no candidate for president receives a majority of the Electoral College vote, the House of Representatives decides who will become President, a process commonly called “contingent” election.  Why did we create such a system?

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The Electoral College grew out of a compromise by the 1787 Philadelphia Constitutional Convention.  The Founders argued throughout their four month-long meeting about how the President should be elected.  That issue was among the last major ones resolved.  The College was a solution to a tug-of-war not only over who would elect the President but, just as importantly, how powerful the office of President would be.

Some delegates, such as Roger Sherman of Connecticut, favored election of the President by Congress because it would make the President far weaker than a king. They wanted the President to “exist primarily as an agent for carrying out Congress’s will.”[8]  Sherman said that he wanted the President to be “absolutely dependent” on Congress, as it was Congress’ will “which was to be executed.”[9] Making the president independent of Congress would be “the very essence of tyranny.”[10] Some delegates, including Elbridge Gerry of Massachusetts and Gunning Bedford of Delaware, went so far as to propose that the President be chosen directly by the state legislatures.[11]  Other delegates, such as William Paterson of New Jersey and  his small state coalition, wanted to make the presidency so weak that they proposed that the President be removeable from office by a majority of state governors.[12]

Other prominent delegates, including Alexander Hamilton of New York, James Wilson of Pennsylvania, and James Madison of Virginia wanted a stronger President.  They envisioned a leader who could be independent of a “state-dominated” Congress and instead represent the broad national interest.[13]  Wilson argued that the President should be elected directly by the people, which would avoid problems such as undue Congressional influence.  James Madison described popular election as the best way to choose an able President, at least in principle.  But others such as Elbridge Gerry described popular election as a “radically vicious” idea, pointing to the “ignorance of the people.”  Gerry believed that if the people were allowed to elect the president, they could be dominated by groups of “respectable, united and influential men.”[14]  Charles Pinckney of South Carolina thought that the people could be duped by “a few active and designing men.”  George Mason of Virginia added that popular election of the President would be “the equivalent of ‘refer[ring] a trial of colors to a blind man.”[15]  Ultimately, even most delegates who wanted a stronger president were unwilling to support direct popular election.   Wilson’s proposal for direct election was defeated by a vote of nine states to one.

Caught between significant opposition to popular election of the President and many delegates’ continued opposition to Congressional election, the Philadelphia delegates compromised by inventing the Electoral College.  Under this convoluted system, states could decide how to choose electors, who would then in turn actually choose the President.  But the advocates of strong state authority and a weak presidency extracted vitally important concessions in return.  Most relevant here, small states were assured a large “bonus” vote, by giving each state, no matter how small, a minimum of three electors in the Electoral College.[16]

By the early nineteenth century if not before, informed observers had concluded that at least parts of the Electoral College system violated republican principles of proportionality and voter equality.   As Sanford Levinson points out, James Madison acknowledged as much.  In 1823, Madison wrote:

The present rule of voting for President by the House of Representatives is so great a departure from the Republican principle of numerical equality…and is so pregnant also with a mischievous tendency in practice, that an amendment of the Constitution on this point is justly called for by all its considerate and best friends.[17]

Today, the anti-democratic rationale underlying the Electoral College has been rendered obsolete by changes in American social conditions.[18]  In the Internet age, an overwhelming majority of voters can readily obtain necessary information about presidential candidates and discuss issues widely online, so there is a nearly level “information playing field.”  There would be no relative disadvantage to states from allowing popular elections due to differing voter eligibility rules.  And there is no longer any plausible justification for giving voters in different states votes of greatly unequal weight in Presidential elections.   It will strengthen our democracy to give the people the right to elect the President directly by majority vote.  The Electoral College is an Internet Age dinosaur, and it should be abolished.[19]

Notes

[1] Akil Reed Ahmar, “An Accident Waiting to Happen,” in Constitutional Stupidities, Constitutional Tragedies, ed. William N. Eskridge Jr. and Sanford Levinson (New York: New York University Press, 1998), 15-17.

[2] Future posts will explain other very unfortunate side effects of continuing to use it to elect Presidents.

[3] Article II, Section 1 of the Constitution established the Electoral College system.  A good general overview of its history and of the issues it raises is Lawrence D. Longley and Neal R. Pierce, The Electoral College Primer (New Haven: Yale University Press, 1996).  Also informative is Lawrence D. Longley and Alan G. Braun, The Politics of Electoral College Reform, 2d ed. (New Haven: Yale University Press, 1975).   For incisive analyses of problems with the Electoral College see Amar, “An Accident” (see note 1); Sanford Levinson, Our Undemocratic Constitution:  Where the Constitution Goes Wrong (and How We the People Can Correct It), 81-97, and  George C. Edwards III, Why the Electoral College is Bad for America (New Haven: Yale University Press, 2004).  Earlier scholarly analysis of various biases in voting created by the Electoral College is found in John H. Yunker and Lawrence D. Longley, eds., The Electoral College:  Its Biases Newly Measured for the 1960s and 1970s, vol. 3: 04-031, Sage Professional Papers in American Politics (Beverly Hills: Sage Publications, 1976).

[4] Though there is debate on the issue, electors do not appear to be constitutionally required to vote for any particular candidate for President.  Longley and Pierce, Primer, 102-109; Edwards, Electoral College, 17-27.  This leads to the problem of the so-called “faithless elector,” who decides to vote for a presidential candidate different than the one supported by the voters who elected the elector.

[5] Under the Twenty-Third Amendment to the Constitution, the District of Columbia also receives three electors, though it has no voting Senators or Congressman.

[6] Methods that legislatures have employed during our history (or could employ) include:  choosing electors directly; allowing them to be elected by plurality statewide vote in a “winner take all” system, the system most commonly used today, which is called the “unit rule”; allowing them to be determined by Congressional district majority vote, a system called the “district rule;” or even proportionally awarding them based on the statewide vote for different candidates.

[7] Alexander Keyssar, The Right to Vote:  The Contested History of Democracy in the United States, Rev. ed. (New York: Basic Books, 2009), 262.

[8]  Richard R. Beeman, Plain, Honest Men (New York: Random House, 2009)(“PHM”), 231.

[9] The Records of the Federal Convention, Max Farrand, ed., 4 vols. (New Haven:  Yale University Press, 1966)(“Farrand”), 1: 68.

[10] Id. At the Convention, Sherman also had a strong hand in making sure that under the Constitution, Congress in turn was strongly dependent on decisions made by the states’ legislatures.  At the time, state legislatures could exert powerful influence on Congress because the legislatures directly elected Senators and also strongly influenced the election of federal House of Representatives members by setting their district boundaries. The district boundaries drawn by state legislatures could be so politically arbitrary that the process of creating them became known as the “gerry-mander” after a district was drawn in an odd lizard-like shape specifically designed to protect an ally of Massachusetts governor Elbridge Gerry.

[11] Beeman, PHM, 135.

[12] New Jersey plan, Farrand, 1: 244.

[13] A majority of members at the Convention wanted the President to be able to serve more than one term, and they were concerned, among other things, that Congressional election of the President would lead him to curry favor with Congress in order to be re-elected.

[14] Beeman,  PHM, 252.

[15] Id (emphasis added).

[16] In a second key concession, the Convention accepted Roger Sherman’s contingent election proposal.  Under it, the House of Representatives would vote for President in certain cases.  But it would vote under special rules that gave small states far more power than they would otherwise have had, because each state would cast only one vote, no matter how large it was. A contingent election occurred in 1800, and resulted in the election of Thomas Jefferson by the House of Representatives.  Some historians conclude that it was commonly expected that under the Constitution, the House of Representatives would often choose the President, because the Electoral College would frequently not produce a majority for any candidate.  The contingent system should have been used to decide the 2000 election.  See the dissent of Justice Breyer in Bush v. Gore, 531 U.S. 98 (2000).

[17] James Madison to George Hay, August 3, 1823, quoted in Levinson, Our Undemocratic Constitution, 95.

[18] Ahmar, “An Accident” (note 1).

[19] And it has become obvious in recent years that the Electoral College system has other serious political costs to be discussed in future posts.

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WHY SHOULD STATES HAVE EQUAL VOTING POWER IN THE UNITED STATES SENATE?

The United States Constitution provides that the Senate shall be composed of two Senators from each state. This composition was agreed on as a compromise in 1787 between large and small states. Large states wanted Congressional representation to be based either on population or wealth (or some combination). Small states wanted equal representation in Congress. The Philadelphia Convention agreed that states would receive their seats in the House of Representatives based on relative population, but that states would be equal in the Senate. The result was that as of 1790, states with 19 percent of the American population had 46 percent of the votes in the Senate. [Note 1]

Many Founders knew when they agreed to the 1787 compromise on state voting power in the Senate that it was flatly inconsistent with the republican principle of majority rule that was the basis of government legitimacy under the new Constitution. For that reason, leading delegates such as James Madison and James Wilson originally strongly opposed it. They realized after a bitter fight that they had no choice but to accept this distortion of the popular will to get enough states to agree peacefully to the Constitution. Unfortunately, the limited distortion they accepted has now been transformed into a far larger distortion than they intended as the nation has grown.

In 1787, the largest state was about 12 times as large as the smallest state. As of 2000, California was about 50 times larger than North Dakota. But California’s two Senators, who represented about 34 million people in 2000, still had the same number of votes as the Senators from North Dakota, who represented 2 percent as many people. This sharply increased distortion of the popular will has major effects on national policy. Senators from small rural states often do not vote the same way on national issues as Senators who represent major cities such as New York and Los Angeles. Here’s a way to see the negative effects this serious failure to follow popular will creates.

Suppose we did an experiment in which we reconfigured the current (“Old”) Senate to make a “New” Senate that more directly reflects the popular will. Then let’s look at a series of actual Senate votes over about twenty years from the late 1960s to the 1980s and see the likely results if the New Senate had voted on them instead. (See Note 2 for details). On a number of issues, national policy would have changed under the New Senate, often reaching the opposite result from the Old Senate.

For example, the New Senate would have adopted national “no fault” auto insurance standards to cut consumer insurance costs. (Voting Study, 4). And it would have refused to provide a federal loan guarantee to bail out defense contractor Lockheed Corporation. (Voting Study, 4). The New Senate would also have adopted fundamentally different positions on several major foreign policy and environmental issues than the Old Senate did. The New Senate might well have supported a constitutional amendment for direct election of the President in 1970 (Voting Study, 6-7). In short, the New Senate experiment shows that national policy is strongly affected by state voting strength in the Senate, often in unfortunate ways that do not represent the national popular will.

Here’s an example from the Voting Study: Federal No Fault Auto Insurance (Senate vote, May 31, 1976). On motion to recommit and thus kill bill to establish federal standards for no-fault motor vehicle insurance, results: Old Senate: Yeas: 49 Nays: 45. Motion adopted; bill killed. New Senate: Yeas: 68 Nays: 75. Motion failed. Bill would have been adopted.

Should Americans today accept the very large distortion of popular will that results from the Constitution’s two hundred year-old compromise on Senate voting? Should we do so even though it adversely affects national policy and badly weakens the democratic legitimacy of the entire Congress? Or is it time to create a New Senate that will actually make decisions in the national interest? Such a reform would sharply dilute the power of special interest groups (or “factions”) by balancing their interests against many others in the larger states and by lessening the power of smaller states where their influence might be strong enough to be politically dominant.

Notes

Note 1. For an excellent account of the struggle over representation at the 1787 Convention, see Richard Beeman, Plain Honest Men: The Making of the American Constitution (New York: Random House, 2009). For additional discussion of the consequences of this compromise, see George William Van Cleve, A Slaveholders’ Union: Slavery, Politics and the Constitution in the Early American Republic (Chicago: University of Chicago Press, 2010), 119-121.

Note 2. First, the old Senate would be expanded somewhat. Then the formula for allocating Senate votes for states would be changed. In the “New” Senate, each state’s number of votes would be increased so that it was mid-way between the Old Senate and a full population system like that used for the existing House of Representatives. The New Senate Voting Study (pdf attached
to this post) shows how this would work (pages 1-2). In our experiment, the actual Old Senate votes are adjusted to show the likely results if the New Senate had voted on them instead; the results are shown in the Voting Study.

NOTE: THE TEXT OF THE NEW SENATE VOTING STUDY IS CONTAINED IN THE PDF DOCUMENT BELOW:   

state voting power in senate

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