J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Tuesday, November 06, 2012

We Need to Fix the Electoral College Again

Late in October 2000, one of my best friends from college raised a possible outcome of the upcoming election: Al Gore might lose the popular vote but win the Electoral College. I replied that that would be bad for the country.

Instead, as we know, Gore won the popular vote but, through a combination of unforeseen circumstances, inconsistent counting that ignored voter intention, and Supreme Court reversals, lost the Electoral College.

Having considered the opposite possibility a few weeks before, I felt confident that my deep dismay at that outcome wasn’t just because George W. Bush and Dick Cheney were in charge of the executive branch but because they were clearly not, as the Declaration of Independence says, “deriving their just powers from the consent of the governed.”

It’s not clear why the Constitutional Convention came up with the Electoral College. The upper-class men gathered there certainly didn’t trust democracy—indeed, they convened in response to popular uprisings like the Shays’ rebellion. They preferred representational democracy in which the people’s preferences were filtered through a series of elected deliberative bodies made up mostly of upper-class men like themselves.

The Convention was also starting from a system with all states enjoying equal (if disproportionate) representation and moving to one with some representation based on population. The Electoral College was the result of a larger compromise. The Constitution assigned each state the same number of Electors as it had Representatives and Senators together, and left the manner of choosing those Electors up to the state. Members of the Convention probably felt that system would adequately reflect “the consent of the governed.”

The resulting system had none of the advantages of representational democracy, however. Electors from different states are not supposed to meet together, so there can be no deliberations or compromises. Some analysts suggest that the Convention expected the Electoral College to produce either strong consensus candidates (e.g., George Washington) or a small number of candidates for the U.S. Congress—the elite of the elite—to choose from.

The Convention didn’t anticipate the rise of political parties even though they had existed in Britain for decades and people were already applying the idea of “the court party” and “country party” to state legislatures. Within ten years, states dominated by one party or with favorite sons in the presidential race were assigning all their Electoral College votes to one candidate regardless of the proportion of votes cast in the state. At that point political leaders had clearly abandoned any notion of the Electoral College representing voters—it was all about partisan advantage.

The problems with this system became apparent as soon as Washington retired. The 1796 election meant President John Adams had his rival Thomas Jefferson as Vice President. The 1800 election had a deadlock in Congress between Jefferson and his running mate, Aaron Burr. The Twelfth Amendment to the Constitution (official copy shown above) was an attempt to fix the Electoral College. The Founding generation knew they hadn’t gotten that part of the Constitution right.

But that 1804 change didn’t fix all the problems. In 1825, 1877, 1889, and 2001 a President took office even though more Americans had voted for another candidate. (Is it just coincidence that the popular winners kept out of power were all Democrats?) Sometimes the administration that took power without popular support instituted terrible policies. At other times the damage looks small, but those outcomes still undercut the foundation of the U.S. of A. as either democratic or republican (whatever difference people like to assign to those terms). Of all the countries that have taken the U.S. as a model, not one has tried to replicate the Electoral College.

This year pre-election surveys raised the possibility of another split between Americans’ actual vote and the Electoral College. For a while last month some surveys showed Mitt Romney with a lead in national polls but President Barack Obama solidly ahead in most swing states and thus in Electoral College projections. For the first time the Republican Party seriously faces the prospect of winning a popular mandate but not taking office. That split outcome seems less likely as I write, but I hope the fear might galvanize Republicans into helping to reform our flawed system.

The National Popular Vote initiative offers a simple, constitutional way for states to restore “the consent of the governed” to our Presidential elections. Even better would be a new system with run-offs ensuring that the candidate who takes office has received a majority of Americans’ votes. There’s simply no justification for the Electoral College.


Waldo4me said...

I was puzzled by the complete lack of effort to reform the electoral college after the 2000 election. Apparently all the political entities accept or even approve of the system. Maybe not that much has changed over the last 200 years. Plus, let's not forget that "we the people" have elected some real losers over the years.

On a similar note, what about national news media calling winners and losers before the polls have closed here in my part of the world? I just hate that!

Peter Fisk said...

Fair points, but I feel that the need for campaign finance reform warrants much higher priority at this time than worrying about the Electoral College.

Byron DeLear said...

Should Repubs lose the election but win the popular vote, we might have an environment in place to abolish the college.

The thought of an electoral tie occurred to me a while back and I wrote about it here: http://www.examiner.com/article/obama-versus-romney-2012-what-happens-the-event-of-an-electoral-tie

There are constitutional anachronisms that we need move past such as the Electoral College. Another interesting one, what would be considered an anachronism, is the Article V Convention, which, due to paralyzing political partisanship, is an idea whose time may have come to be utilized instead of being unused as it has to date.

34 state apps are required for Congress to issue the call for a convention “to propose amendments” – each of which would then go back to the states and submitted to a super-super majority ratification (75%) process before becoming law. Thereby eliminating any extreme or radical proposals.

The Article V Convetion route could be the kind of popular pressure (with teeth) to get our Federal legislature to begin to work together again to avoid things like $500 billion dollar interest-on-debt, falling off a fiscal cliff, etc.

An org I’ve helped since 2007, Friends of Article V Convention, is the only group to have performed a investigation of the congressional record to tally the number of state apps that Congress has received calling for a convention—the number is above 500 and the required number to trigger the “peremptory” call is only 34.

The Congressional Research Service mentions our group’s efforts in two reports recently released detailing the eventualities should a popular movement begin to coerce Congress to perform their duty.

You read more about those non-partisan reports here: http://www.examiner.com/article/research-arm-of-congress-sheds-light-on-failure-to-perform-constitutional-duty

Popular ideas such as—
•Balanced budget amendment
•Repealing the legal doctrine of corporate personhood
•Securing the vote by providing open-source and independent verification of ballot results
•Campaign finance laws with teeth / public financing of campaigns

-- could be brought to our table by a method the Founders prescribed that has yet to be used!

J. L. Bell said...

I agree that the state of campaign finance laws is a mess. One of the reforms of the Revolution was to do away with the House of Lords—i.e., a system that gave certain people more political power simply through inheritance. Equating political spending with political speech grants certain people more political power simply through inheritance. (And today's plutocrats want to increase that advantage by making large inheritances tax-free.)

Especially in today's information-saturated age, I don't think we could stop the news media from announcing surveys, exit polls, likely winners. Heck, it already has. The TV networks do try to refrain from "calling" states until they're done voting. Do newer, online news sources do the same? Unless we change voting periods to make them the same across all time zones or put much less emphasis on voting in person during a particular workday, that might be the best we can arrange.

J. L. Bell said...

The Constitution does indeed provide for the possibility of a new Convention. After all, the men convened in 1787 had to agree that their metholodology was legitimate.

Those men met without any representation from Rhode Island, which also dragged its feet in participating in Congress. What happens if twelve states (especially twelve big, important ones) refuse to participate in a new convention?

Byron DeLear said...

J. L. Bell,

In answer to your question, I think the 14th amendment equal protection would come into play in regard to the operating procedures of the Article V Convention (AVC).

At FOAVC, in advocating for a convention, we have explored what our nation's first amendatory convention would look like, and how it would operate.

One scenario has population influencing the number of votes each state would have, not unlike the proportional representation model of the U.S. House. Beyond the equal protection argument of the 14th, I forget the precedent that suggests proportional versus a one state / one vote model --like when the U.S. House elects the President in the event of an electoral tie.

If equal protection and one person / one vote is determined to be the guiding principle for our first Article V Convention, a likely model would be the U.S. House, basically, a vote for every 700k citizens.

You asked what if 12 states boycotted the convention?

A quorum in the House of Representatives is when a majority of the Members are present. A quorum would be 218 reps.

If we had an AVC where at least 218 representatives showed up (out of a potential 435), the convention would meet the quorum requirement and could proceed with business. Hope that illuminates the topic a little!

An Article V Convention Primer

Article V of the constitution provides two methods for amending the U.S. Constitution.

The first is by a vote of two-thirds of both the U.S. House and Senate to pass an amendment, which then needs three-fourths of the states to ratify the amendment into law, thereby affixing it to the supreme law of the land. This process has occurred 27 times in the history of our nation.

The second method is through an Article V Convention, which is called into session when two-thirds of the states have applied for one (a threshold that's already been met).

The convention debates different ideas and then votes on them. Aspiring amendments that have been successfully passed by the convention then need to follow the same track as the first amendatory method—ratification by three-fourths of the states. This strict requirement prevents any extreme or radical proposals from surviving—the Founders would not have been so shortsighted as to place a self-destruct switch in the center of their masterpiece.

Unknown said...

Okay, I generally refrain from these political discussions. However, I feel impelled to respond to your last sentence: "There’s simply no justification for the Electoral College.". In fact, there are a great many justifications.

Now, I certainly agree with you that there are many flaws with the Electoral College, and it is overdue for reform. In particular, the winner-take-all approach to states is very unrepresentative of the popular vote.

However, you make an unstated assumption when you support a pure popular vote: namely, that the electorate is an informed electorate.

I suspect most of the readers here are indeed informed. But most Americans are not. (Though many think they are, but if you are left-leaning, then you deplore those that get their news from Fox News, and if you are right-leaning, then you deplore those that get their news from MSNBC.)

Consider the many examples one can find at movie review website Rotten Tomatoes, where massive marketing dollars can drive people ("votes") for newly released movies that are utterly crap, and are acknowledged as such by even the viewers.

Why do horrible movies rake in so much money? Same reason why horrible politicians reap so many votes: marketing.

Brilliant marketing, support by special interests, etc, all influence a generally ill-informed electorate. Ill-informed as in those that religiously watch the extremist "news" talk shows from either far end of the political spectrum.

Without some form of an Electoral College, a candidate can market to a select demographic, and ignore the rest. They can limit their marketing to the major cities with the majority of the population and ignore the backbone of America. Those of us in California can be ignored entirely because a candidate can stick to marketing in the East Coast alone. Or one religions group (or anti-religious group) could amass sufficient power to elect a president that would drive some radical social policy. (There's also probably some comparison one can make here with the start of the Civil War, but alas, I write this late, so it does not immediately occur to me how to frame such a comparison.)

There must be checks and balances against such absurdities as noted above. I'm sure you've heard it before: a pure democracy is what produces a lynch mob, while a republic is what produces a sheriff to sway the momentary passions of an energized populace, thus ensuring the rule of law. Likewise, a pure democracy could yield frightening results, with lack of representation or complete marginalization of entire demographics.

If every voter was a truly well-informed voter, and one not swayed by blind passions or quasi-news reporting, then a pure democracy could, in theory, work. But humans are what they are, and politicians and their marketing machines are also what they are, and thus an Electoral College of some form (some form which I hope to see improved upon) is one means to attempt to provide a balance to the voting process.

As a 2000 New York Times opinion wrote: "Yet the arguments for the Electoral College are also compelling, and in our view, outweigh the [cases against]... by offering the promise that even the smallest states could tip the balance in close elections, the system made it impossible to ignore them. This, in turn, required presidential candidates to build alliances across ideological and geographical lines."

So, while you may disagree, and conclude that a pure democracy is best, which is your prerogative, I hope you can see there is indeed some "justification for the Electoral College".

But that's just my opinion.

Derek Beck

Daud said...

"Without some form of an Electoral College, a candidate can market to a select demographic, and ignore the rest."

Can you really say this is not what already happens? The only difference is it happens only in Ohio instead of all the states.

Unknown said...

Certainly, a candidate must spend time with each state, and as the people of Iowa do not have the same concerns as the people of Virginia, I'd say yes, the Electoral College system is preventing a candidate from entirely ignoring a large swath of the population.

@Waldo4me: I want to piggyback on your last comment: "On a similar note, what about national news media calling winners and losers before the polls have closed here in my part of the world? I just hate that!" Yeah, I hate that too. Being in California, it seems unfair that, with polls closing in the east, and the constant media stream of realtime events, that as we in California get off work about 8pm Eastern, we already are influenced on which way the wind is blowing. Okay, sure, California generally goes blue regardless, but the spirit of the idea of a secret ballot is effectively eliminated when we on the west coast know the results before we can get to the polls. It certainly must marginalize Hawai'i. I know some European countries have a ban on reporting election results for several days afterward (i.e. Switzerland and France), and I think we need this too.

J. L. Bell said...

I agree, Derek, that an uninformed, badly informed, or selfish electorate is a problem in a democracy. But how does the Electoral College address that problem?

One way that democratic societies deal with that challenge is for the people to turn over detailed decisions to their elected representatives, who can shape coalitions and compromises. That's how our legislatures work. Another way is to empower experts who have spent their lives studying complex subjects and proven their expertise. That's what we hope for from central bankers.

But the Electoral College doesn't work like either of those types of bodies. Electors are supposed to cast their votes in their states, not meeting together. They aren't chosen for their expertise. They're not even supposed to make independent decisions.

Furthermore, to justify the Electoral College would require showing not just that a popular vote can be flawed but that the Electoral College works better. What's the benefit of distorting the popular vote so that a third of voters aren't represented in the Electoral College at all? Why should voters have vastly different influence in the Electoral College based simply on whether they live in states with big cities (and thus large populations)? Why is "the consent of the governed" worth sacrificing?

You write, "Without some form of an Electoral College,…Those of us in California can be ignored entirely because a candidate can stick to marketing in the East Coast alone." Didn't you notice that the 2012 candidates never made a public appearance in California—our most populous state—after the party conventions? That's because its Democratic majority combined with the Electoral College meant that Republicans couldn't gain any useful votes there.

Over 3.6 million Californians voted for Romney, and not one of them was represented in the Electoral College. Meanwhile, less than .2 million people in Wyoming voted for Romney, and they commanded three Electoral votes. Regardless of party, a voter in Wyoming has more than three times the influence over our Presidential choice compared to a voter in California. How can that be justified in a country founded on the notion of political equality?

The complaint about news media reporting winners and losers while westerners are still voting arises from the Electoral College. Under a popular vote system, turnout on the West Coast would still be meaningful.

Unknown said...

You make a convincing counterargument, and I can generally agree with all of your points, especially the concerns of the East Coast affecting the West Coast. And I too subscribe to the idea of the "consent of the governed".

However, my concern is that, with a pure, simple, popular vote, the consent may be vastly one sided, marginalizing massive swaths of the population, thanks to the simple majority a pure popular vote would entail. For instance, a pure popular vote does not ensure California or the West Coast would not be considered whatsoever, such as if there were some landslide victory on the East Coast that California disagrees with. That is, an election could be entirely decided based on those states east of the Mississippi, without input from California whatsoever. (A scenario not unlike when Lincoln won the North while the South mostly didn't have Abe on their ballots, but given why the South didn't want to vote for Lincoln, maybe this comparison hurts my argument...)

I've always imagined (fantasized?) that the Electoral College be modified in this form: What if we eliminate the Electoral College (EC) as a physical body, and instead allocate Electoral College votes to each state by population as we do now, but these votes would be automatically divvied out for the General Election based on the proportion of the popular vote within that state alone.

For instance, California is worth 55 electoral votes (EVs), under the current system and my proposed hybrid. 59% of Californians voted for Obama, 39% for Romney, the other 2% for "other". Under the current system, it is winner-takes-all, entirely eliminating the "consent of the governed" idea, thus giving all 55 EVs for Obama. What of those 39% for Romney? Love him or hate him, I don't like a system where a person's vote for President actually doesn't matter, and let's be honest, it never really doesn't unless you live in a swing state.

Instead, under my proposed hybrid, I think 59% (rounded to the nearest) of the total 55 EVs should automatically (with no actual Electoral body casting such a vote) go to Obama (so 32 EVs), while 39% (rounded to the nearest) of the total 55 EVs should automatically go to Romney (so 21 EVs). Assuming (which I doubt) that other 2% is all for the same 3pr party candidate, they would receive 1 EV. And we could come up with some fair way to allocate leftover EV's due to rounding error, or, I prefer, simply nullify any remaining EVs. (And we'd need some contingency for when the rounding yields a rounding error such that more EV's are to be cast than allocated to the state.)

Under such a scheme, the simple majority of EV's decides the winner. Thus, the popular vote would be represented by EV's, but no election could be so polarized as to negate an entire demographic or geographic, and the essence of the pure, popular vote, would be retained.


After this, let's solve the national debt ;)

J. L. Bell said...

If I understand your proposal correctly, Derek, the states would have the same number of votes in the Electoral College now as before. Thus, a populous state like California would still be underrepresented, and a small state like Wyoming would still be overrepresented.

Then within each state its Electors would be assigned in order to approximate the vote within that state. That would be another distortion from the popular vote, but the results would be less predictable. In a large state, a third party might need only 2% to gain an Elector; in a small state, that party would have to get close to 30%, and the big parties would benefit.

I believe that system could still result in a popular-vote winner losing in the Electoral College, and thus a President taking office without the voters' approval—what I see as the fundamental flaw with the system. That would happen if the leading candidate lost ground because of underrepresented voters and rounding errors.

And I'm not sure that would solve the problem you're pointing to. If “there were some landslide victory on the East Coast that California disagrees with," then that would be reflected in the Electoral College. It would still be possible to reach an Electoral majority without much support in one region of the country or one part of the electorate.

Furthermore, any scheme aimed at protecting a regional minority has to answer the fact that those voters are a minority. There are fewer of them. Of course they’re outvoted. Why shouldn't they be? If we engineer the Electoral College to give special protection for people in one latitude or time zone, why not protect people of a particular age or height who also constitute a significant minority?

Individual rights are protected largely through constitutional guarantees and the courts. Regional interests are protected by state and locals governments, regional representation, and coalitions of common interests. The Presidency is set up as a national office and should represent the nation's choice as accurately as possible.

(Parliamentary systems, especially those with at-large seats and party lists, address these questions quite differently. It's striking how many emerging democracies have chosen that structure instead of the U.S. of A.’s separate and overlapping branches.)

Steven Montgomery said...

I highly recommend the book, "The Evolution and Destruction of the Original Electoral College," by Gary and Carolyn Alder.


Or see: http://www.nccs.net/newsletter/nov10nl_print.html

Or: https://sites.google.com/site/heavenlybanner/constitutional-banner/broadening

Robert S. Paul said...

I'm a big fan of IRV or some other form.

As to your comment about it always being democrats, it likely is coincidence, but more so, the Democrat in 1825 would not have been the same kind in the later years. The party redesigned itself plenty of times.

Also he lost to a Democratic-Republican, so I mean what definitions are we using here?

J. L. Bell said...

The sites Steven Montgomery pointed to seem to be based on the idea that the original Constitution was divinely inspired and created an ideal form of government, and that the rise of political parties and revamp of the Electoral College in 1804 distorted that ideal.

That argument seems circular and unproveable, and it misses some important points. Most important, the same generation of American politicians who created the Constitution also created the political parties. James Madison was one of the founders and leaders of the Jeffersonian coalition. Alexander Hamilton organized the Federalists to support Washington and himself. Evidently divine inspiration lasted only a few years.

J. L. Bell said...

It's true the Democrats and Republicans have both changed greatly since those parties were founded. And the 1820s was a particularly crazy time for trying to discern political alliances.

However, the Democrats have always been based on representing the wide, numerous "ordinary man" part of the electorate (which mostly excluded non-whites and non-males for many decades, but no longer does). The opposing party (Federalist, Whig, Republican) has always been supported by and represented the interests of the leading businessmen of the time.

Therefore, when it comes to the Electoral College—an institution designed to remove the choice from the broad swath of ordinary voters and put it into the hands of the well-connected upper class—I'm not convinced that it just coincidentally overturned Democratic popular-vote wins. On the other hand, with only four examples and one in that strange 1820s decade, I'm not convinced that the effect wasn't random. I think the question is worth considering.

Unknown said...

JL, you said that your concern with the current system is that a popular vote winner can still not win, given they must win the majority of Electoral Votes.

Indeed, in my proposed system, this would still be the case, but it would be far less so. In other words, in my system, the EVs would be a sampling of the popular vote.

The concern I have: consider the alternative: in a pure popular vote, there could be some candidate that could bend over backwards to win ONLY the populated states of CA and NY, and utterly ignore the rest. So, imagine: Candidate A gets 34% of the nation's popular vote, all of which is from NY and CA. Candidate B and C tie at 33% each for the other states. Thus, Candidate A has ignored 48 of the states, but wins in the simple majority.

It depends on your perspective: if you feel Candidate A should win because he got the most votes, period, then I suppose you could never be for any sort of an Electoral College system.

For me, I feel the President is supposed to represent us all, and the Electoral College, albeit a better one than what we have (like my proposal above), ensures all states or regions of the country have a voice in the system. (I also think the President should take an oath to not participate in partisan activities once in office.)

I don't want to move to NY or remain in CA to have a say in the political system. If I move to Montana, I want my vote to count too. Sure, it would "count" under a pure popular vote, but no candidate would ever care about my vote in Montana under such a system.

Indeed, the Presidency is set up as a national office and should represent the nation's choice as accurately as possible, but not at the exclusion of massive swaths of the country.

My final thought: I would love to see a system where the emergence of a 3rd party is viable. It seems under a pure popular vote, as well as my proposed system, such would be possible.

J. L. Bell said...

I'm afraid I don't understand the logic of your argument, Derek.

California contains about 12% of the U.S. population and New York about 6%. Winning “ONLY the populated states of CA and NY” wouldn’t add up to a popular-vote majority unless people in most other states didn't bother to vote.

It's true that more than half the population of the country lives in the fraction of the states with the highest populations. Under the current Electoral College system, a candidate can win the Presidency by winning only the eleven most populous states and losing the other thirty-nine. But let's not forget that the eleven most populous states are disproportionately underrepresented in the Electoral College. It's the small states that have more influence than their populations justify.

I don’t understand the logic of this: "If I move to Montana, I want my vote to count too. Sure, it would 'count' under a pure popular vote, but no candidate would ever care about my vote in Montana under such a system." In a popular-vote system, that vote in Montana would count exactly as much as a vote cast anywhere else in the country. No more, no less.

Under the current system, Montana's three Electoral Votes are seen as "safe" for a Republican Presidential candidate. Montanans who vote Democratic usually end up with no representation in the Electoral College. Candidates from both parties do hardly any campaigning in Montana. This year, the Republican ticket won 55% of the popular vote there and the Democratic ticket 41%. Under the system you described above, that would produce two Electoral Votes for the Republicans, one for the Democrats. That would become the "safe" expectation—closer to the state's popular vote but still a distortion.

You seem to want a Presidential candidate to win not only the popular vote but support from many geographic parts of the country—including the less populated "swaths." That amounts to requiring a supermajority, but only if a candidate's popular majority comes from big, urbanized states. I don't think the Electoral College would produce that outcome reliably, and it creates other problems. And your system still amounts to treating people's votes unequally based on where they live.

The U.S. system mostly follows the British system in providing for "first past the post" elections in defined districts: the top vote-getter in a district gains the seat even if he or she wins only a plurality. As game theory and history both show, that system almost always leads to two dominant parties. Third parties and independent candidates are usually regional, short-lived, or stuck on the sidelines.

Countries with more than two healthy parties usually have other forms of electing representatives, such as proportional voting from party lists, run-offs, a combination of defined and at-large seats, &c. Given how the Electoral College is defined, I don't think it can contribute to the rise of a more-than-two-party system.

Unknown said...

Well, I won't pretend to have thought about all of the nuances, but I do like the idea that there is some weight given to all states. I just don't like the winner take all approach to the Electoral College. Perhaps there is merit in a pure popular vote, but I guess I need to read more on it to be convinced.

J. L. Bell said...

Given the computing power available now, it should be possible for people to feed election results for the last several elections and see what approaches come out with. Which proposals, if any, avoid the 2001 problem? Which, if any, create other situations in which a candidate would take office without being even the plurality’s choice? That said, I think a direct popular vote, perhaps with a run-off, is still the only way to guarantee "the consent of the governed."