As part of my intermittent series on US Constitutional issues, today I am taking on the venerable Electoral College component of the US election system. In prior discussions, I have touched on the undemocratic distortions in the US Senate (10/09/20), the need for a fourth branch of government (12/11/20), reforming federalism (02/19/21), and the general need for a wholesale rewrite of the Constitution (02/05/21). In an upcoming posting, I will take on the composition of the US House of Representatives. Compared to these, the Electoral College seems like easy pickings.
Recent discussions of the Electoral College have pointed out that the Democrats have won the popular vote for President seven times in the last eight elections, only to be “robbed” by the anachronistic electoral college on two of those occasions. Most then jump to a call for moving to a national election by total popular vote. In so doing, they combine their critiques of several aspects of the Electoral College and thus skip over an intermediate solution (which, given our deep propensity for incremental change) may well be more likely.
To be specific, there are three problems with the current structure.
1. Voting by states – Our current (since 1787) system is based on a union of independent states, each casting its own votes on its own terms.
2. Small states bonus – Since the Electoral College provides that each state have a number of votes equal to the sum of its House and Senate seats, small states have a disproportionate share of the vote. This is comparable to the problem with the Senate’s democratic deficit.
3. Winner-take-all – Each state casts all its votes for the candidate who won a plurality of the popular vote in its election.
There are other issues, such as the problem of “faithless” electors, but, as with fraudulent popular voting, this is talked about far more than the actual practice.
One could design a revised approach that solves one, two, or all three of these concerns (in several combinations).
Before getting to potential solutions, it is worth noting that very few (none?) other countries have similar problems. Many use a parliamentary system (even if they have a ceremonial President) which, by definition depend on multiple parties/individuals having a share of power, unlike a Presidential system in which there is only one person at the top. Prime ministers usually must win their own seats and then are elected to head up the government by the collective vote of the other parliamentarians. Countries with the presidential system (e.g. France, Russia, and many of the countries established in the 20C) are unitary, not federal, systems; so there are no sub-units whose representatives would choose a national president. Finally, the vast majority of countries were established in the 20C or sufficiently late in the 19C so that their democracy assumes an informed, widespread popular electorate; unlike our system which was created in the 18C when literacy was low and most ordinary citizens (e.g. a farmer in Pennsylvania) had little means of knowing anything about a Governor/Senator from other state who might be a contender for national leadership.
The “winner-takes-all” mode seems to be the biggest problem. It has pernicious effects, particularly the effective disregarding of ‘minority’ voters in states with a substantial party majority (e.g. California or Wyoming). Of course, since it is likely that a fair number of Californians or Wyomingites know how their state will vote in any presidential election; they don’t think it’s worth their time to vote and we can only guess how close a vote would be if all votes counted. The other problem is that all media and campaign attention gets focused on the “battleground” states which distorts coverage, understanding, and political positions. (The benefit is that those of us in those states are spared unceasing advertising and get-out-the-vote phonebanks/robocalls).
However, the “winner-take-all” mode is NOT a constitutional issue. It’s up to each state to determine how to allocate their electoral college votes. Many have joined together to enact conditional laws shifting to some form of allocation based on majority national popular vote, once other states with a majority of electoral college votes do so (currently states representing 193 votes out of the necessary 270 are signed up).
This effort, the National Popular Vote Interstate Compact, is not a bad patch on a broken system, but it’s definitely a ‘work-around’ for the absence of more basic constitutional change. It is a voluntary surrender of state sovereignty in favor of a national political coherence. It would likely address much of the general popular concern with the current electoral college system. However, for die-hard originalists, any change risks opening the flood-gates of constitutional modernization and is to be resisted, even if to no substantive purpose (analyses show no long-term partisan effect of getting rid of the “winner-take-all” mode or other aspects of the current system).
Still, a constitutional amendment would be preferable as part of a more comprehensive solution; particularly one that addressed the other two failings.
As I argued previously, we should remove federalism from all aspects of the national electoral process and reserve it to questions of governmental jurisdiction and operations. We are no longer a country made up of states; we have a national political culture and state boundaries play no role in how we should address questions of national policy.
Similarly, the small state bonus—a remnant of the 1787 compromise to protect small states and southern states (and their slavery laws)—should go by the board. I could even see small states agreeing to give up their rights here in return for preserving some extra clout in the Senate; should it come to that.
The downside is the need to go through the arduous amendment process; which is difficult in ordinary circumstances (38 states required), and much more challenging in our fraught political environment. Of course that same set of atmospherics makes the Compact route almost as difficult. So, the Electoral College in its current form is likely to be with us for a while until there is a sea change in our political culture.
Recent discussions of the Electoral College have pointed out that the Democrats have won the popular vote for President seven times in the last eight elections, only to be “robbed” by the anachronistic electoral college on two of those occasions. Most then jump to a call for moving to a national election by total popular vote. In so doing, they combine their critiques of several aspects of the Electoral College and thus skip over an intermediate solution (which, given our deep propensity for incremental change) may well be more likely.
To be specific, there are three problems with the current structure.
1. Voting by states – Our current (since 1787) system is based on a union of independent states, each casting its own votes on its own terms.
2. Small states bonus – Since the Electoral College provides that each state have a number of votes equal to the sum of its House and Senate seats, small states have a disproportionate share of the vote. This is comparable to the problem with the Senate’s democratic deficit.
3. Winner-take-all – Each state casts all its votes for the candidate who won a plurality of the popular vote in its election.
There are other issues, such as the problem of “faithless” electors, but, as with fraudulent popular voting, this is talked about far more than the actual practice.
One could design a revised approach that solves one, two, or all three of these concerns (in several combinations).
Before getting to potential solutions, it is worth noting that very few (none?) other countries have similar problems. Many use a parliamentary system (even if they have a ceremonial President) which, by definition depend on multiple parties/individuals having a share of power, unlike a Presidential system in which there is only one person at the top. Prime ministers usually must win their own seats and then are elected to head up the government by the collective vote of the other parliamentarians. Countries with the presidential system (e.g. France, Russia, and many of the countries established in the 20C) are unitary, not federal, systems; so there are no sub-units whose representatives would choose a national president. Finally, the vast majority of countries were established in the 20C or sufficiently late in the 19C so that their democracy assumes an informed, widespread popular electorate; unlike our system which was created in the 18C when literacy was low and most ordinary citizens (e.g. a farmer in Pennsylvania) had little means of knowing anything about a Governor/Senator from other state who might be a contender for national leadership.
The “winner-takes-all” mode seems to be the biggest problem. It has pernicious effects, particularly the effective disregarding of ‘minority’ voters in states with a substantial party majority (e.g. California or Wyoming). Of course, since it is likely that a fair number of Californians or Wyomingites know how their state will vote in any presidential election; they don’t think it’s worth their time to vote and we can only guess how close a vote would be if all votes counted. The other problem is that all media and campaign attention gets focused on the “battleground” states which distorts coverage, understanding, and political positions. (The benefit is that those of us in those states are spared unceasing advertising and get-out-the-vote phonebanks/robocalls).
However, the “winner-take-all” mode is NOT a constitutional issue. It’s up to each state to determine how to allocate their electoral college votes. Many have joined together to enact conditional laws shifting to some form of allocation based on majority national popular vote, once other states with a majority of electoral college votes do so (currently states representing 193 votes out of the necessary 270 are signed up).
This effort, the National Popular Vote Interstate Compact, is not a bad patch on a broken system, but it’s definitely a ‘work-around’ for the absence of more basic constitutional change. It is a voluntary surrender of state sovereignty in favor of a national political coherence. It would likely address much of the general popular concern with the current electoral college system. However, for die-hard originalists, any change risks opening the flood-gates of constitutional modernization and is to be resisted, even if to no substantive purpose (analyses show no long-term partisan effect of getting rid of the “winner-take-all” mode or other aspects of the current system).
Still, a constitutional amendment would be preferable as part of a more comprehensive solution; particularly one that addressed the other two failings.
As I argued previously, we should remove federalism from all aspects of the national electoral process and reserve it to questions of governmental jurisdiction and operations. We are no longer a country made up of states; we have a national political culture and state boundaries play no role in how we should address questions of national policy.
Similarly, the small state bonus—a remnant of the 1787 compromise to protect small states and southern states (and their slavery laws)—should go by the board. I could even see small states agreeing to give up their rights here in return for preserving some extra clout in the Senate; should it come to that.
The downside is the need to go through the arduous amendment process; which is difficult in ordinary circumstances (38 states required), and much more challenging in our fraught political environment. Of course that same set of atmospherics makes the Compact route almost as difficult. So, the Electoral College in its current form is likely to be with us for a while until there is a sea change in our political culture.
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