Examining the Electoral College, Part 4: Nationwide Popular Vote

As noted in my earlier comments, the functioning of the Electoral College today bears little resemblance to the intention of the founding fathers, negating the argument that we should introduce no change now because the founding fathers knew what was best. As Robert Bennett says in Taming the Electoral College,

“In some ideal world the method might have been splendid, but that splendor could not be realized in the real world of American politics. For that reason alone, if we were searching today for a way to select the president, it is thoroughly unlikely that we would come up with something even remotely like the electoral college.”

Furthermore, as Bennett notes, “the electoral college seems always to be a work in progress.” Given changes that have occurred on the federal level and the changes in state selection of electors, this is clearly true.

The “wrong winner” problem that we saw in 2000 (where Bush was elected by the Electoral College even though Gore won the popular vote) isn’t necessarily the reason for changing the system to a direct popular election. If such a system had been in place in 2000, both sides would have campaigned differently and the outcome might have been different, just as the outcome in 2004 might have been different. But as noted earlier, there are other potential problems with the current system and there are numerous proposals for reform. The most prominent of those reforms is the Nationwide Popular Vote (NPV) movement. And this is not surprising given, as Bennett notes, steady movement toward relegation of decisions to popular election: popular election of Senators, under the 17th Amendment; referenda, as practiced in many sates; the popular election of electors, which all states now practice.

There are defenders of the electoral college system. One argument against shifting to NPV is that it is too big a change. But Bennett notes that “the electoral college has changed over the years in ways that are fully as momentous as direct election would be, and far from being brittle, the system has proved remarkably adaptable.” Defenders also argue that the “winner-take-all” system of selecting electors requires candidates to concentrate on states as integrated units, but it isn’t clear why that’s a particularly desirable outcome. And while under the current system the presidency could be captured by a candidate who wins the electoral votes of the 11 most populous states, the NPV would require candidates to campaign nationally, since votes everywhere would count equally.

Next: Problems with the “Contingent Procedure”

Examining the Electoral College, Part 3: History Lesson II

Article II, Section 1 of the U.S. Constitution is where the original concept of “electors” is spelled out:

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

The section goes on to describe how the voting of electors will be conducted, with the results conveyed to Congress.

As noted in History Lesson I, though, the system resulted in problems early on, and as a result Amendment XII to the Constitution was adopted. The language quoted above stayed the same, allowing each state to appoint their electors in the manner they see fit, but the method of counting electoral votes was altered, basically separating the voting for president and vice president. The amendment didn’t solve the other problems that were already apparent, however.

Robert Bennett’s book, Taming the Electoral College, recounts the election of 1824, in which the backup procedure established in the Amendment came into play, in large part because there was no obvious successor to Monroe. At that time, most states had chosen popular election as the “manner” for appointing electors, but a few states used other methods. Andrew Jackson had a plurality of popular votes in states using that method, and also had a plurality of electoral votes, but because none of the candidates had a majority of electoral votes the choice went to the House of Representatives, which chose John Quincy Adams. There were also substantial electoral vote problems in the election of 1876 because of rival slates of claimants to the office of elector and disputes over elector qualification. The result of these problems was the Electoral Count Act of 1887, which is basically what governs the counting of electoral votes today, although it doesn’t entirely resolve the problem of competing slates of electors, which was an issue in the 1960 election. Still, though, Bennett points out that “the ECA has played a steadying role in electoral college controversies.”

What’s most interesting to me, though, is the changing “manner” of state selection of electors, since the Constitution leaves that up to individual state legislatures. Since the 1830s, with a few minor exceptions, states have used popular election of electors. But the rules of those elections raises some questions. Originally, as Bennett tells us, electors were intended to be chosen as individuals (who would then meet to deliberate on the best choice for President and Vice-President). But it didn’t take long for slates of electors to become associated with political parties and their candidates. States use a variety of methods of reflecting this association, but usually the identity of the elector isn’t even known to the voters. Also, and this is critical to the real issue I’m exploring, there is the question of whether the slate of electors should be chosen on a proportional basis, or on a “general ticket” state-wide (a.k.a., “winner-take-all”), or on election by district within the state. Where one party dominates the state, the winner-take-all method clearly is in their favor. (Thomas Jefferson himself said he preferred the district election method, but benefited from the winner-take-all method that helped him win election.) Currently, all states but two (Maine and Nebraska) use the winner-take-all method. Those two determine electors district by district. Under the dominant method, then, the size of the popular vote margin in a given state is irrelevant because the winner takes all of the electoral votes.

Bennett observes that the general ticket has led to the close integration of parties into the process. And here’s the real point of this discussion of history:

“The net result of these various developments is to give us a presidential selection system that is quite different from the one envisaged by those who came up with the electoral college in the first place. Instead of being marginalized in the process as the framers had hoped and expected, political parties dominate it. The prevalence of winner-take-all has to some degree deprived the less populous states of the electoral college advantage that was built into the system for them.”

In short, the system we’ve got isn’t the one the founders had in mind. So why not explore making improvements?

Next: Exploring an alternative.

Examining the Electoral College—Part 2: History Lesson I

My reactionary blogging colleague (See Part 1) admonishes “Liberals” to take a history lesson, but I think he’s the one who needs to go back to school. First, he talks about the intent of the Founding Fathers in creating the electoral college system and second he likens the college to the “Great Compromise” that resulted in the bicameral legislature. He’s just wrong on both scores.

As Robert Bennett points out in Taming of the Electoral College, one reason that the “Founding Fathers” did not go with a nationwide popular vote was that there was too much variation in voter qualifications established by each state and that the Southern states insisted that their say be weighted by counting each slave as 3/5 of a person, even though of course slaves weren't allowed to vote. Smaller sates (Mr. Reactionary is right about this part) also resisted because it was believed “a nationwide vote would inevitably result in a president from a center of greater population.” But the system that was created, while it has some of the features of the legislature, doesn’t really protect the small states. First, unlike the bicameral Congress, the Electoral “College” is entirely proportional—larger states do have more say than smaller states. It’s as if the Senate and the House of Representatives were combined, with each member having a vote, unlike in Congress where the Senate is a check on the House. The small state protection in the system came in providing that electors would have two votes and could not cast both of them for a candidate from his home state. Thus, the smaller states were assured that the election of a large state candidate would not be inevitable.

It is also important to remember that the electors were intended to really deliberate, to be independent decision makers. Since our reactionary blogger attempts to quote Alexander Hamilton, let me include this quotation from Hamilton, cited by Bennett: The electors were to be

“men most capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.”

That was the intent of the Founding Fathers. Does that sound like the Electoral College that we’ve got now? Nope. Not even close.

So the fact is that not only are the small states no longer protected in the way that the Congress protects them from the “tyranny of the majority,” but it is laughable to think that our current Electoral College bears any resemblance to the deliberative body that the Founders intended. Small states, while they play a role in primaries for mostly accidental and customary reasons, are virtually ignored in the general election. And almost all states have the “first past the post” or “winner take all” system of elector selection, in which electors are supposed to vote for the winner of the popular vote in their state. Deliberation? Does that sound like deliberation? If the National "masses are asses" isn't it also true that state "masses are asses"?

It’s also interesting that the system the Founders designed didn’t work for long. It was fine for the first election, because George Washington was a virtually unanimous choice in the election of 1789. But by the elections of 1796 and 1800, there were already problems apparent in part because of the emergence of political parties and their designated “slates” for President and Vice President. As a direct result of these elections, the Twelfth Amendment was adopted, which changed the way the “Electoral College” worked. So if in 1801 the country realized that the system designed by the Founding Fathers needed to be tweaked, why is it so outrageous in 2007 to think the same?

Next: History Lesson II—After the 12th Amendment

Examining the Electoral College—Part 1

As you probably know, Maryland recently adopted a law requiring its “electors” in a U.S. Presidential Election to cast their votes for the winner of the National Popular Vote. This “compact” will come into effect when States with a majority of Electoral College Votes have passed similar legislation. Although this effort to by-pass the Electoral College is (or could be) bipartisan, some (mostly of the conservative persuasion) have attacked it. For example, one of our local reactionary bloggers posted about the issue recently and had this to say:

“This is about right. Liberals who for the life of them cannot figure out why we have an electoral college system in place to elect our President are trying to find a way to get our Founding Fathers spinning in their graves. OK, Liberals back to the class room! Why do we not elect the President solely on the Popular vote? (1) Alexander Hamilton' famous quote... The "masses are asses"! (2) That a few states with large populations would overwhelm states with smaller populations. It's an effort to prevent a Tyranny of the Majority over the Minority, on the National level.
This makes sense especially in light of the "Great Compromise" which gave us the current make up of Congress and it's (sic) representation in the House of Representatives and Senate. . . . Therein lay the protection that the smaller states needed to see that their interests would be protected. This system has worked for over 200 years.
The same can be said for the Electoral College System, which again weighs in favor of the states, because as was played out in the 2000 election between George W. Bush and Sen. Al Gore. Gore won the popular vote, but lost in the electoral College, as Florida was declared for Bush. . . . I look forward to the day when Liberals appreciate our Founding Fathers intent, and quit tinkering with a system that has served us well, just because they lost an election.”

All of which is very interesting but exceedingly shallow. It not only ignores what the original intent of the “Founding Fathers” really was, but also ignores that the original system was flawed and had to be adjusted by the 12th Amendment to the Constitution. And even if our current system did work exactly as the founders intended--which it does not--why shouldn’t we as a nation strive to make the system even better? This particular reactionary blogger dismisses the effort to improve the system as the work of “Liberals” but I think it is he who needs the history lesson. Furthermore, he objects to the law “throwing away the vote of the people” although, as I pointed out in a comment left on his blog, exactly the opposite would happen. The movement that Maryland has joined would shift power away from the “electors” and back to the people, since the state popular vote would be aggregated with the popular votes in other states.

So the new system is worth considering and discussing, instead of being dismissed without examination, and I propose to do that by reviewing a recent book on the subject, Taming the Electoral College, by Robert W. Bennett, a law professor at Northwestern University. It’s a complicated discussion so I propose to do it in several parts. Please stay tuned.

Next: History Lesson