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The Electoral College — The Last Round

by Gordon S. Jones  vote-button-1

My last column on the Electoral College prompted a number of thoughtful responses, so I would like to deal with those, and then make some general points in (qualified) support of the Electoral College itself.

One reader produced polling results demonstrating that support for the elimination of the EC and its replacement with a direct popular election of the president runs between 70 and 80 percent in every state in the country.

With opposition like that, it is quite astonishing that the EC can survive. Surely it must have some things going for it. I shall try to explain what those are as I go along.

Another reader stated that “[m]ost Americans don’t care whether their presidential candidate wins or loses in their state or district . . . they care whether he/she wins the White House. Voters want to know, that even if they were on the losing side, their vote actually was directly and equally counted and mattered to their candidate.  Most Americans think it’s wrong for the candidate with the most popular votes to lose. We don’t allow this in any other election in our representative republic.”

That last sentence is intriguing. It implies that we are a nation where “majority rules,” just like it did in kindergarten. But that is manifestly untrue. The “majority” does not rule in the United States. Quite the contrary. No president in the history of the country has gotten a majority of the voting age population. Lyndon Johnson’s 37.8 percent in 1964 is the highest, but most presidents get along quite well with the support of about a quarter of those who are eligible to vote.

One reason they can do it is the EC, which exaggerates the degree of support a president commands in the eyes of the public. Barack Obama got only 50.5 percent of the popular vote in 2012, but his 61.7 percent of the EC vote demonstrates a legitimizing breadth of appeal across the country. This result is not to be sneered at.

I have discussed previously the utility of the EC in avoiding recounts, but the closeness of the 2012 popular vote illustrates another problem for majoritarians. Truman, Kennedy, Nixon [1960], Clinton, Bush [2000] and Obama [2008] all failed to reach the magic 50 percent plus one. True, all of them (except Bush) got more votes than their major party opponent, but demonstrably all of them were opposed by a majority of those casting ballots. What should we have done in those cases? Held a runoff?

And it is not true that “We don’t allow this in any other election in our representative republic.” We allow it in every congressional election. With the exception of Louisiana and Georgia (and the Virgin Islands and American Samoa), every state awards the electoral victory to the “first past the post,” whether he or she has a majority of the vote or not. A simple plurality is sufficient.

This is not a theoretical “problem.” Between 1992 and 2004, 95 members of the House of Representatives have received less than a majority of the vote in their districts. Over that same period 24 U.S. Senators have been sworn in when a majority of their voters opposed their election.

And of course hundreds, if not thousands, of local officials are elected every year with a minority of the vote.

Nor is the United States alone in its method of choosing a chief executive. It has not been widely enough noted that parliamentary systems, like that used in Britain, actually function as a kind of electoral college. Unless he or she lived in Whitney, no Briton cast a ballot for David Cameron to be Prime Minister, any more than any U.S. citizen cast a ballot for Barack Obama. Cameron was elected by an “electoral college” made up of the members of the British House of Commons.

(It is instructive to note that Cameron’s Conservative party did not have a majority of the seats in the Commons; he had to enlist support from the Liberal Democrats to be “elected” Prime Minister. “Liberal,” in the British context means “Conservative” in the U.S. Furthermore, among modern, industrialized, developed nations, almost none have direct election of the chief executive. Those nations that do are either (a) small, (b) characterized by rampant political instability, or (c) both.)

These points illustrate the complexity of electoral systems, and the difficulty of producing “representative” government. As I tell my students every semester, what we are looking for is an electoral and representative system that works. What I mean is one that produces a broadly acceptable result every election. Despite its creakiness, the EC does that, and it always has.

Here are some other strengths of the EC, just as points to ponder. None of them will convince avowed opponents of the EC, but they might introduce some caution for those not already seduced by the siren song of plebiscitary majorities.

On the theoretical side:

  • The EC makes it virtually mandatory that a candidate for president have an appeal beyond a narrow regional base. Under direct election of the president, the economies of scale in the mega media markets of the two coasts would eliminate any campaigning or electoral clout from the heartland. With the exception of Texas and the upper Midwest, the “flyover” states would indeed be flown over. Utah would have about the same electoral weight as the city of Chicago.
  • The 12 most populous states have enough votes to command a popular vote majority, and you can bet that that is where the campaigning will take place.
  • Direct election of the president may not be the same thing as democracy, in that the president is not supposed to exercise lawmaking powers, but it is certainly plebiscitary, and plebiscites were anathema to the Founders, and should be to us as well. The power of the centralized state is never as great as when it has received approval by a vote of the people. Napoleon recognized this principle, as have various despots and dictators in Third World countries in the 20th and 21st centuries.
  • One of my readers attributed the low voter participation rate in the U.S. to cynicism brought on by the EC. But a low voting percentage is not necessarily bad. Communist countries routinely racked up voter participation in the high 90 percent range, which ratifies the power of the dictatorship, but says nothing about the degree of freedom enjoyed by the people.
  • Under the Electoral College, as it has developed, we keep alive the conceit that the president is not elected by the undifferentiated mass, but by the states. And in that system, the states retain their individual characters, and muse be dealt with as states. Under the EC, a presidential candidate has to campaign in New York among New Yorkers, which is different from campaigning among Texans in Texas. A demagogic appeal to the population in one state or region turns off voters in another state or region, preserving some measure of the compactual relationship that brought the country into being.
  • By contrast, a candidate vying for individual votes, wherever they may be, need only appeal to a bare majority based on its self-interest. As indicated above, that would mean an emphasis on the large population centers, where supermajorities of inner-city hordes would overwhelm any countervailing influences of self-restraint. It may be true that the nation is 80 percent ex-urban, but that is no solace, because it underlines the point that it will be much more cost-effective to campaign among the 20 percent, leaving the rest to split and fractionate as they will, to be overrun by the urban majorities.
  • One argument against the EC is that elections today are decided by the 11 or so “battleground” states (the number of battleground states is closer to 20, but let that go). But what that analysis omits is that those are not the same states all the time, and that there is considerable variety among them. Any fair list of the battleground states would include New Mexico, Florida, Pennsylvania, Missouri, and Oregon. Moreover, it was only a few years ago (when Pete Wilson assassinated the Republican Party there) that California was a swing state.
  • By contrast, with direct election of the president, the key states will be the high population states of the two coasts, with some sprinkling of the upper Midwest thrown in, a much more homogenous population. Perhaps Texas (and sometimes Florida) can outweigh New York, California, Pennsylvania, New Jersey, Illinois, and Washington, but I doubt it.

On the practical side:

  • To their credit, my critics did not attempt to defend the National Popular Vote Interstate Compact, but there are some problems with it that should be dealt with in the interests of completeness. To remind you, under the Compact, states signing on would pass laws requiring the Electors chosen in each state to cast their EC ballots for the winner of the national popular vote.
  • To begin with, when would we know that they had or hadn’t done so? In addition to the recount problem discussed in the last column, the Electors are chosen by the voters in November. In December they convene at the state capital/capitol and cast their ballots, which are sealed and sent to the President of the Senate (the Vice President). In January he opens the ballots (in the presence of the Congress assembled) and they are counted. Only then would we know if the Electors had followed the state law.
  • And what if they hadn’t? What is the penalty? Are they going to be taken out and shot for following the Constitution rather than state law? Under the Supremacy Clause, I’m betting that they are going to win their court battle. In the meantime, uncertainty reigns.

If the present system is unsatisfactory, and it obviously is to a great many people, what alternatives are there? Here are a couple:

  • Eliminate the electors. This would require a constitutional amendment, but the physical electors really are an anachronism, performing a purely ministerial function. It would change nothing to provide that the winner of the popular vote, state by state, receives the number of electoral votes to which the state is entitled. Poof! No more “faithless” elector. I might mourn, but I already mourn the demise of the Founders’ ingenious workmanship, and pretty much no one else would.
  • Eliminate the “winner-take-all” feature. This would not require a constitutional amendment, merely a state law, something like the Virginia proposal that started this whole discussion. Two states (Nebraska and Maine) have already done this. In the 2008 election, four of Nebraska’s electoral votes were awarded to John McCain, one to Barack Obama.
  • The law could allocate electors on the basis of representative districts, two for the Senate, state-wide, and one each for the legislative districts. That is how Nebraska does it. Or one could award electoral votes proportionally. In Utah, for example, the Democrats could get a proportion of our six electoral votes equal to their percentage of the popular vote. If they got 30 percent, they would get two electoral votes.
  • The point is that such an arrangement would reduce the possibility of a misalignment between popular and EC majorities (or pluralities) to virtually zero. If that is a desirable step, then this is a far less cumbersome way to get there than the National Popular Vote Interstate Compact.

Finally, this discussion should have made it evident that there are legitimate criticisms to be made of the Electoral College, and something to be said for it as well. And happily, the Framers of the Constitution gave us a mechanism for debating and adopting changes when we don’t like something. That method involves a national debate, and the agreement of three-fourths of the states. It emphatically does not allow for the imposition of changes by as few as 11 states entering into an Interstate Compact.

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Gordon S. Jones is a senior fellow at Frontiers of Freedom.  Jones is also an adjunct professor at Utah Valley University and Salt Lake Community College. Jones has extensive experience in Congress, in public policy, and elective politics.