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Thoughts on The Electoral College  | e-mail post

This (last) week's Homespun Symposium question is:
Is it time for the U.S. to end the Electoral College? If so, in favor of what alternative system? If not, why is it still relevant and beneficial to the nation?
[Links to other responses on this question]

In a nutshell, my thoughts on the Electoral College are in line with Churchill's comments on democracy, namely, that it is the worst possible way for the United States to elect the President, other than any possible alternative, that is. But before I defend the status quo, it is worth considering the objections to it.

Common Complaints and Criticisms of the College

It Is No Longer Relevant or Necessary

The wording of the symposium question itself, asking "why is it still relevant?" alludes to the common complaint that the Electoral College is an 18th-century anachronism, the raison d'etre of which has long since vanished, as there is no longer any risk that some ill-informed electorate might somehow vote for someone who might, for example, agree to the re-colonialization of the U.S. by the British monarchy. Even historically, the option of the college electors to vote against the will of their states' voters was really just a failsafe that was never triggered; the electors have historically proven themselves to be consistently faithful to the will of the voters the represented (and under the laws of many states today, are legally bound to be faithful to the state's popular vote).

Certainly times have changed since the founding fathers wrote the Constitution. The voting franchise has been radically expanded over the past two centuries, the political institutions and universal public education means that the collective electorate can be trusted to not elect an unthinkable candidate, improvements in our infrastructure and logistics mean that we can all vote on the same day, and telecommunication technology allows us to have a pretty good idea of who won the election within hours of casting our own ballot. However, the Electoral College was not simply a failsafe, and to suggest that it was trivializes its significance.

Nobody Else Seems to Need One, Why Do We?

Some would say that the fact that while we were once the only democracy, there are now many, and the fact that they all seem to function well without anything like an Electoral College would suggest it is unncessary. They might even point out that the most recent birth of a democracy, for which the U.S. was the midwife, if not the father, we didn't disintermediate the electorate from the election result when setting up the Presidential election in Afghanistan. It's actually rather humorous to think about how hard that would have been to explain; the first opportunity for a democratic election in a culture's history and we suggest what some might see as institutionalizing a star chamber. On its face, it would be akin to explaining baseball to one who has never heard of it and then introducing the Infield Fly Rule after a five-minute explanation of the diamond, pitching and hitting and the running of the bases.

Of course, the differences between the reborn Afghanistan and the United States of the late eighteenth (or early twenty-first) century are myriad and obvious, ranging from the size and relative homogeneity of the country to the implications of a federal system of shared power between state and national governments. Another critical distinction is that in the early days of our nation, the political elites were trusted and widely respected by the citizens and had a fundamental faith in some form of a democratic government; the Electoral College provided a failsafe mechanism, if the general population made an irrational electoral decision. In contrast, the majority of the establishment elite in Afghanistan, warlords or Muslim clerics, would have strong personal motivations in favor of a tribal feudalism or a theocracy, respectively, in contrast to a democracy. While such a group would certainly be willing to select a President in defiance of the popular vote, it would be safe to assume that it would most certainly not be to put in place the best champion of freedom and representative government; such a group would hardly be a reliable safety net against a slip away from democracy. On the other hand, if the electors were vetted or approved by the interim administration, it would be alleged that they were pawns of the United States, and all the problems that would cause. In any event, I imagine that the Afghani people being just introduced to the idea of democractic elections and voting would have been confused, suspicious or skeptical of any analog to our Electoral College.

And, while there are many functioning democracies today, but the majority of them are parlimentary democracies with a Prime Minister selected by the members of parliment. Even in many countries with a President, the President's resposibilities and powers are comparatively quite limited compared to those of the U.S. President. In Germany, the Chancellor has most of the domestic power, and in India, any Presidential power or authority can be taken away by the legislature. There is not a single other country in the world that offers a relevantly similar comparison to the needs and requirements of our electoral process. And so I will gladly admit that something like our Electoral College would be an unnecessary and maybe even unhelpful feature of any other democratic nation, that certainly doesn't imply that it is not the best thing for our genuinely unique form of government.

It's The Electoral Equivalent of the Infield Fly Rule

I made reference above to the rather quirky Infield Fly Rule in baseball; in fact, I believe the Infield Fly Rule shares some very apt parallels with our use of the Electoral College in the Presidential election. Just as "the Infield Fly Rule is obviously not a core principle of baseball. Unlike the diamond itself or the concepts of 'out' and 'safe,' the Infield Fly Rule is not necesssary to the game. Without the Infield Fly Rule, baseball does not degenerate into bladderball,"1 neither is the Electoral College itself a core principle of a democratic Presidential election. Rather, on their face, they are both seemingly arbitrary and incongrous adjuncts to an otherwise clear and concise set of base principles.

Certainly, the rationale and wisdom of both the Rule and the College are a subject of legitimate debate, with reasonable arguments on each side. However, simplification alone seems an entirely insufficient reason for such a significant change.

It Can Contravene The Will of the People as Expressed by the Popular Vote

Possibly the most common fundamental criticism is an intuitively powerful one: that it can result in the election of a President that did not win the popular vote. As we saw in 2000, this is not simply a hypothetical possibility. The reason for this, and one of the additional criticisms of the Electoral College process, is the inequality of voting power it creates between people who live in large states and those who live in small states. This is most starkly illustrated by noting that California, with nearly 60 times the population of Wyoming, only has 20 times as many electoral votes as Wyoming. Thus, from a purely mathematical view, a Wyoming voter carries three times the weight as a California voter in a Presidential election. Taking this to a logical extreme, it is argued that such a situation would clearly violate the "one person, one vote" ideal of a broadly-extended voting franchise in a representative democracy. For opponents of the Electoral College, this is a categorical objection to the College because it can result in the violation of the fundamental democratic principles that are the foundation of the government.

While many people would point to the election of 2000 as an example of the Electoral College being broken, I would suggest that it is extremely short-sighted to suggest the elimination of the Electoral College simply because of an unexpected (and to many, undesirable) outcome in a single election. In some ways this would be like a blackjack player deciding he was never again going to follow the statistically correct guidance to hit on 16 when the dealer's showing a seven, simply because he lost a lot of money on such a hand by being dealt a ten on his hit and busting, only to discover the dealer's hole card was a nine watching him hit and draw a two.

Moreover, this criticism in some way implies that either: the Electoral College was created as some sort of logistical convenience because conducting a popular national vote would have been impractical; our nation's founders were just wrong about core tenets of federalism. The former is clearly not the case, as it would have certainly be possible to allow for a national popular vote election. If one believe the latter then it would only be consistent to reconfigure the Senate into a population-proportioned body like the House.

The Electoral College's Function: Electing a President for the Collective Whole

I am very much a traditionalist in terms of leaving procedural operation of our government unchanged, as evidenced by my recent argument against Bill Frist's plan to change the senate rules on filibuster cloture. As with the Electoral College, this is another example of a seemingly odd rule that deviates from a pure sort of "majority rules" democracy but provides a valuable moderating influence on the operation of our government.

Just as the filibuster allows a substantial minority to prevent even the barest (and potentially nonrepresentative*) majority from exercising complete control over the senate, the Electoral College works to elect a President for the nation as a collective whole, which would most likely not happen in a pure popular vote election. Consider that when the country was founded, "the United States" was not simply a proper name for a new nation; it was moreso a plural noun describing the federal system of a collection of states joining together to form a more perfect union, as they said.

In fact, to suggest that the outcome we saw in the 2000 election, with a the popular vote winner not being elected, somehow discredits or shows the defect in the Electoral College system seems to be rather insulting to the intelligence of the framers of the Constitution, whom history has demonstrated to be both wise and prescient. Certainly these people understood math, and the they would thus be aware of the possibility of such outcomes (although they did admittedly forget to account for the possiblity of one candidate not winning a majority of electoral votes, hence the 12th Amendment). However, even in those cases where the popular vote and the electoral vote differ, the Electoral College system does insure that the President who is elected will meet two criteria:
In the case of the Electoral College and our approach to electing the President, our country has seen astoundingly close elections (consider Kennedy-Nixon in 196o); a tied Electoral College vote that almost started a civil war in 1800; and several Presidents that did not win the popular vote, one of whom was sent to the White House by a 8-7 party line vote in a congressional commission (Rutherford B Hayes). Yet somehow, even with these challenges, this method of electing the President has worked for over 200 years and makes the the world's oldest continually functioning democracy. In fact, the two-pronged test of representational legitmacy the Electoral College imposes is profoundly wise. Let's consider life without the Electoral College.

Impact of Replacing the Electoral College with a Direct Popular Vote Election

A Smaller Effective Pool of Presidential Candidates

First, I believe eliminating the Electoral College would make it even more likely that our Presidential candidate pool would quickly be reduced to large-state governors and possibly senators. Consider a popular NY or California governor running for the election, or for even more electoral favorability, a Pres/Veep ticket with one from each state. To make it more tangible, imagine a constitutional amendment that allowed naturalized citizens to become President and a Schwarzenegger & Guiliani ticket in 2008 (they could flip for who is at the top of the ticket). Call it the mega-state ticket.

Even with lower than average national turnout this year (a hair less than 45% versus a national average of around 55%) New York and California cast 15% of the ballots that were cast nationally. Had those voters turned out at levels consistent with the rest of the country (adding another 4.1 million votes to the total), they would have represented 18% of the total ballot. Extending the math, in a popular vote situation, a the mega-state ticket could lose 48 of the states 52-48 but carrying California and NY at 59% (not unreasonable for a popular governor) would let them win the national popular vote. If "native son" popularity increased turnout in those states, the mega-state ticket would need carry their home states by an even smaller margin to move into the White House; also, it would only take a 55-45 victory in NY and CA to override a 49-51 loss across the rest of the country.

An Intense Campaign Focus on a Select Group of Homogenous Voters

My second concern also relates to the impact of population distribution on electioneering and campaigning. The 33 largest metro areas in the U.S. are home to over half of the U.S. population (about 149MM out of 294MM). Actually, just the NYC, LA and Chicago metro areas contain 1/6th of the entire U.S. population, while the top 12 metros are 1/3rd. The tremendous concentration of voters in these areas would likely have profound implications in the way campaigns are conducted. The combination of highly-concentrated media buying opportunities combined with the relative efficiency of getting voters to the polls in high population density environments could turn the largest cities into virtual political theme parks in the last weeks of the election. Combine this with an obvious incentive to pander to specific issues of importance to megapolitan residents would make any criticisms of the concentrated attention paid to swing states this year laughable.

I would think anyone would agree that the combined population of (for example) Florida, Pennsylvania, Ohio, Iowa and Minnesota provides a vastly more representative cross-section of the U.S. than the numerically equivalent combined population of the New York, Los Angeles and Chicago metro areas.

A Decline In the Quality of Presidential Campaigning (Really, It Could Be Worse)

The third, and possibly accidental benefit of the the Electoral College system and the resultant concentration of campaigning in a limited number of swing states, many of which are relatively less populous, is that it makes campaigning a somewhat more personal affair that delivers a more engaged and more informed electorate in those states. That is, while it necessarily concentrates decision-making into certain states, it also, by implication, concentrates the amount of data presented to the voters in relatively smaller states. This has always been rationale for New Hampshire and Iowa leading the Presidential caucus and primary season: it is practical for even a relatively underfunded candidate to deliver their message on a relatively even playing field in those less populous states. (Although this benefit has been heavily eroded by states pulling their primaries earlier and earlier into the election year.)

I can tell you that living in Minnesota we were exposed to no shortage of candidate appearances and communication. (Something I experienced during the caucus season growing up in Iowa as well.) People here, as well as in Wisconsin, Iowa, Ohio and the other swing states were certainly in a position to make informed decisions based on the most positive and articulate persuasion one can expect to get in a contemporary national campaign. I say this because stump-driven , in-person campaigning is almost always more positive than media-driven campaigning. In contrast, I think it most probable that a pure popular vote contest would only encourage even more media-driven campaigning, which is almost inevitably more negative, as it is a lot easier to send a clear negative message about an opponent in 30 seconds or a minute than it is to convery a positive agenda. And, given the above average voter turnout in these typically high-turnout states, people were obviously engaged. (Local cheerleading: Minnesota again led the nation with 77.3% turnout)

The Value of Maintaining the Winner-Takes-All Approach to State Electors

I will also take a moment to argue in favor of maintaining the current standard of an at-large, winner-takes-all method of awarding state's electoral votes. Nebraska and Maine have implemented a proportional representation scheme such that one vote is awarded to the winner of each electoral (in effect, congressional) district and the state's two "senate votes" are awarded to the state's popular vote winner. Fortunately, Maine and Nebraska only represent 9 total electoral votes and, as a practical matter, have been so homogenous in their voting behavior that neither state has yet split their slate of electors. In general, however, I believe this mechanism of selecting electors is unwise

Even more pernicious is the occasionally suggested variant of proportional representation: selecting a state's electors proportional to the popular vote of the state, such that a 60-40 win in Minnesota, with 10 electoral votes, would send 6 of the winner's electors and 4 of their opponent's to the Electoral College. This year Colorado had proposed constitutional amendment #36 on the ballot that would have adopted proportional allocation as their method of choosing electors. Fortunately it was defeated. I am hopeful that since the popular and electoral vote outcomes were consistent this year, people will not be as motivated to press ahead for such changes in other states.

One justification some present for these methods is that they would be more likely to provide electoral vote outcomes that are more consistent with the popular vote. As was discussed above, however, it is not clear if that is a fundamentally compelling reason for such a change and not simply a short-sighted reaction to a 2000 election result that disappointed many people.

It is presumed that even the electoral district-based assignment used by Nebraska and Maine would tend to bring the popular and electoral vote proportions in line as well. Interestingly, the 2000 election visibly rebuts that presumption. National use of district-based elector assignment would have given Bush a 288 to 249 victory in the Electoral College in contrast to the actual 271-266 split. (Bush won the popular vote in 228 districts and 30 states; Gore won 207 districts, 20 states and D.C.; district data from Polidata.)

And while it understandable that the district-based selection of electors could diverge from the popular vote, for the same logical reasons as the winner-take-all method, certainly a proportional allocation scheme would insure the popular vote winner would become President. While you might think that, even under a nationwide proportional allocation scheme, George Bush still would have become the President in 2000. David Leip breaks down the math on how the electoral votes would have turned out, but as no candidate would have a majority of electoral votes (for which Gore supporters can fairly blame Nader), the election would have been decided by the House of Representatives, per the 12th Amendment, with one vote per state. Since the Republicans controlled a majority of the individual state delegations in the House, it would be certain that Bush would have won even with the proportional allocation scheme.

So, it would appear that regardless of the electoral vote allocation method George Bush would inevitably have become President without winning the popular vote in 2000. (The one exception would be if the proportional allocation method were used and freeing Nader's electoral votes to be cast for Gore if Nader agreed to it.) But while the math may not have changed in the retrospective analysis, a national change to the method of choosing electors would have significant impacts on the future elections.

Objections to Electoral District Allocation (Used by Nebraska and Maine)

First, if all the states followed Nebraska and Maine, especially with our two-party system, one would expect the congressional candidates, especially incumbents, to be under intense pressure from the national party organization to campaign on behalf of the party's Presidential nominee while focusing on their election as well. This demand on congressional candidates to "deliver" their districts for their party's nominee would likely result in a split 435 electoral votes that would closely mirror the party composition in Congress. There are two related problems with this:
Moreover, with district-based electors, especially with a narrowly divided House, the two at-large electors for each state become critical to winning the presidency. And in this model, because winning the popular vote of any state is worth two votes, whether it is California or Wyoming, electoral influence thus becomes even more concentrated in the smaller states and campaigns would probably find it most efficient to focus time and resources on the least populous states with split house representation.

Oh, and if you thought parties in power during times of reapportionment or redistricting are willing to play hardball now just to improve their party's chances at winning or retaining seats in the house, it would only get more aggressive if the district map would also influence the Presidential election. (If you followed the drama in Texas around their most recent redistricting, you know how serious a fight this can be today.)

Objections to Proportional Allocation of Electors

While district-based selection seems like a well-meaning, if clearly flawed attempt to improve the Electoral College system, the prospect of selecting electors proportional to the state's popular vote is a superficially sensible idea with very severe possible consequences. What sort of severe consequences? Before considering the prospective effects it would have, just looking at how such a method would have altered past elections hints of the risk. I'm not going to tally up all the numbers right now, but a quick glance at some past election results suggests that the nationwide use of a proportional scheme would have definitely allowed George Wallace (having won 13% of the popular vote) to select the President in 1968. It is most likely Ross Perot (with 18%) would have been in the same position in 1992. (Bear in mind that my discussion here assumes electors would cast their votes for any candidate if directed to do so by the candidate to whom they were pledged.)

Because the Electoral College is required to elect the President by a majority, not simply a plurality, with proportional electors, a moderately strong national third party candidates would no longer be just potential spoilers for certain candidates, they would in fact become the kingmakers. There is something fundamentally perverse about any set of circumstances that provides an individual trusted by less than 20% of the voting public to run the country with the power to select the nation's President.

Of course, in either of these two cases, regardless of the choice made by Wallace or Perot, any potential winner, Nixon, Humphrey, Bush or Clinton would have met the critiera of sufficiently representing the citizenry and the nation as a whole to be considered a legitimate President. However, there is the concern of what sort of commitments might Perot or Wallace extracted for their support? Would Wallace have demanded Nixon make it a priority to repeal the Voting Rights Act? Would Perot have become the Secretary of the Treasury?

Some might argue that this sort of situation is actually the primary benefit of proportional electors, that it would improve our government by engaging other contituencies in defining the national agenda, rather than forcing the electorate to simply select Agenda A or Agenda B, neither of which a majority of Americans agree with in their entirety. The idealist might imagine the third party candidate securing the commitment to a pro-choice policy position from the would-be Republican President, or possibly supporting the Democratic candidate in exchange for a commitment to a more aggressive foreign policy or the reconfiguration or retrenchment of many social programs. While this might sound appealing to some, it would seem to be prone to creating the potential for an incoherent national policy, and would also be likely to result in protracted negotiations; there would be resistance from the major party candidates to anything that might compromise their base. Ultimately, it is likely many of the commitments might not be kept, or only nominally addressed.

However, even if the thought of George Wallace or Ross Perot personally selecting the leader of the free world doesn't disturb you enough to reject the idea of proportional electors, consider the some of the likely changes in the Presidential election process such an approach would induce. Proportional electors would most likely increase minor party voting dramatically by eliminating the perception of a "thrown-away" vote, given the real or perceived influence they would have on the ultimate selection of the next President, and by implication, the next President's agenda. In addition to targeting independent voters and specific wings of the major parties, they would also likely draw out many who were politically disengaged as they didn't feel any affinity to either major party. I believe you would rapidly see a larger number of minor party candidates. Third party candidates wouldn't worry as much about running a national campaigns to "inject their ideas into the debate" but would instead focus their time and resources in a region or a limited number of high-opportunity states, maximizing their chances to win the electoral votes necessary to influence the final outcome; of course, the more minor party candidates there are, the fewer electoral votes any candidate needs to have an opportunity to have some influence.

Under these circumstances, it is not very difficult to imagine a scenario in which the Greens could easily pick up 10-20 electoral votes by focusing on California, Colorado, Florida,
Massachusetts, Minnesota, New York, Oregon, and Washington; the Libertarians could possibly do as well with a concentrated campaign in New England, Texas and possibly a couple of Western states; a "Christian Fortress America" party led by the likes of Pat Buchanan or Alan Keyes could likely pull a lot of votes out of Bible Belt states. These three parties together could easily finish the election holding 7% to 12% of the electoral votes. And unlike those cases in which there is only one significant third-party candidate that usually is a spoiler for one major party candidate or the other, a collection of minor parties would be stripping electoral votes from both major parties, most likely depriving anyone of a majority.

Now, the major party that controls of the House might consider betting that the other major party won't be able to build a large enough coalition to get a majority, but is that a chance they want to take? Not to mention, if the House of Representatives was regularly involved in selecting the President, I think most people would find that far less palatable than the status quo operation of the Electoral College.

Once the minor-party movement gets momentum, you could easily see the possibility of one or two parties based on ethnicity, some kind of urban/metropolitan-oriented party, and maybe a couple of true single-issue parties. It would not be out of the question that a "California Party" could be formed, focused on capturing the majority of California's electoral votes, possibly making it the largest minor party block of electoral votes.

Now things would have degenerated into some kind of coalition government approach to electing the President. Even the major parties would be under strain and likely to splinter, as there would be a strong incentive for a major party candidate who did not win his party's nomination, but had strong independent and crossover appeal to run a national campaign as an independent. If that person had strong enough relationships in the House, he could possibly in either the House or by being a more attractive coalition partner to build an electoral majority.

It's Not Broken, So Let's Not Fix It

Of course, the mind reels at the possible ways the election process could play out under the proportional allocation approach, and that uncertainty and unpredictability alone is a fairly strong argument against that option. The district allocation model also seems to have some potentially undesireable side effects and no apparent benefit.

1 Aside, The Common Law Origins of the Infield Fly Rule, 123 U. Pa. L. Rev. 1474 (1975). [partially viewable via Amazon] Although I know very little about baseball, I learned of the Infield Fly Rule through this cult classic of legal humor, most famously noted for the satirically obsessive use of footnotes, even providing a citation for the very first word in the article, "The." In total, the Aside drops 48 footnotes over eight pages of text, including the 48 footnotes.

All kidding aside, there is a fairly significant body of work about baseball and the law, much of it collected and reprinted in Baseball and the American Legal Mind (Spencer Weber Waller et al. eds., 1995), from which the Amazon article image above is provided.

For those with an interest in the history of the Aside, it was written by William S. Stevens, now at the American Law Institute. See Robert M Jarvis & Phyllis Coleman, The Uncommon Origins of 'The Common Law Origins of the Infield Fly Rule', 19 Entm't & Sports Law. 17 n.4 (2002) [Issue in PDF or HTML format]

Steven's analysis of the Rule is critiqued in John J. Flynn, A Comment on ?The Common Law Origins of the Infield Fly Rule,? 4 J. Contemp. L. 241 (1978)

For more law review humor, if you have convenient access to the cited documents, see Thomas E Baker, A Compendium of Clever and Amusing Law Review Writings, 51 Drake L. Rev. 105 (2002) [HTML or MSWord] For those who would like a more convenient option, a quicker option would be ordering Amicus Humoriae: An Anthology of Legal Humor (Jarvis Baker McClurg et al. eds., 2003), which also includes text of the orginal Infield Fly Rule Aside.

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