The Electoral College Works Fine, Just as It Is

Posted in: Election Law

Who won the 1960 World Series? I will give you some hints. The Pittsburgh Pirates played the New York Yankees. Still do not know? Here’s another hint—the Yankees scored 55 runs in all seven games (38 runs in just three games) while the Pirates scored, in all seven games, just 27 runs overall. Still do not know? The Pirates won because they won four close games while losing three games by a lopsided number of runs (16 to 3; 10 to 0; 12 to 0). The Electoral College works a little like the World Series.

Our Electoral College system prevents candidates with only regional appeal from winning. Statistically, a rule requiring the winner to prevail in a number of sub-elections produces a better result for the country. For the same reason we count the number of games won in the World Series (rather than the total number of runs, which would be heavily influenced by an anomalous game). After all, if Clinton in 2016, won 100% of the popular vote in her home State of New York, thereby prevailing in the nationwide popular vote, those extra votes would not show she had more support nationwide, only that she is a candidate popular in one very populous state.

The Electoral College penalizes political parties that have only regional strength. In the 2016 election, the Democrats had regional appeal. If you look at a map of the vote for president based on counties, with counties colored red (for Republican), you will see the country painted with a sea of red except, primarily, at the seashores. This regional influence extends in congressional races as well. In the House of Representatives, just three coastal states, California, Massachusetts and New York, now account for a third of all House Democrats.

The Framers of our Constitution built for the long term and created a system to last for generations. They established a democracy while protecting the rights of the minority. Today, we think of the Bill of Rights as the primary way of protecting the minority, with its guarantee of free speech, free exercise of religion, no government-established religion, freedom from unreasonable searches, right to bear arms, and so forth. But James Madison, in the Federalist Papers, No. 48, warned that we should not trust mere words, “parchment barriers,” to protect us “against the encroaching spirit of power.” So the Constitution created structural protections. The Framers sought to control power by separating it.

They divided the federal legislature (feared as the “most dangerous” branch) into the House and Senate, with different methods of selection and different terms of office. The president could not legislate; he could only enforce laws that Congress enacted, but those bills did not become law unless he signed them or a supermajority of both Houses could overcome his veto. The president has the power of the sword, but Congress has the power of the purse. The Judicial Branch, they thought, was the “least dangerous” branch.

This separation of powers within the federal government is not the only method designed to preserve liberty. They also embraced another form of Newtonian mechanics to balance power against power and thus preserve liberty. We have vertical separation of powers—using the states to check the power of the federal government. The states, no less than the three branches on the federal level, protect the liberty of the people by dividing power between the federal and the state governments. The purpose of what we call “states’ rights” is not to protect these incorporeal artificial constructs (which the Pre-Civil War Southerners argued); it is to protect us, the people.

The structural limits do not stop here. They created the Electoral College to protect the residents of the smaller states, and they rejected government by simple majority because plebiscites historically have been the tool of dictators, such as Hitler & Benito Mussolini. In modern form, plebiscites arose out of the French Revolution. Madison feared what he called “tyranny by the majority.”

To win the presidency, the candidate must receive a majority of the electoral votes. To determine how many electoral votes a state has, just take the number of each state’s U.S. Representatives and add two (which represents the number of Senators for each state). Even the residents of the smallest states (or Washington, DC, which has no representation in the House or Senate) have a minimum of three electoral votes.

States do not have to adopt a system of “winner take all,” but almost all do. (The exceptions are Nebraska and Maine.) If larger states (such as California or New York), were to elect the electors by district (with the winner of the popular vote of the state securing the two extra electoral votes), those states would have substantially less influence in choosing the president. Democrats now reliably win both states, but there are areas of these two states that elect Republican representatives. Now, Democrats take California for granted (after the 2016 election, Democrats now control two-thirds of both Houses of the California legislature) and Republican Presidential candidates spend little time campaigning there

Whenever one party wins a majority of the popular vote and the opposing party wins a majority of the electoral vote, the losing party clamors to change the system. In 2016, neither Hillary Clinton nor Donald Trump won a majority of the popular vote. Clinton, in the CNN totals, gives Secretary Clinton 48.2 percent of the popular vote; Donald Trump has 46.3 percent or 1.9 percentage points less, with 5.5 percent voting for third party candidates. No one won a majority of the popular vote, and Trump won an electoral landslide, 306 electoral votes to 232.

Clinton probably won two million more votes than Trump, yet in the same election, the Republicans as a group in the House of Representatives beat Clinton’s plurality by 50 percent, winning the national popular vote by three million votes. Clinton won California by nearly 3.5 million votes, accounting for her popular win and underscoring her regional appeal.

In 2000, Vice President Gore won 49 percent of the votes cast, which is greater than the 43 percent President Clinton won in 1992. The statistics say that Gore beat George W. Bush by 543,819 votes. However, we really do not know that he won more votes that Bush. The Gore vote differential in 2000, expressed as a percentage of the total vote of all the votes, was less than the vote differential in Florida in 2000 favoring Bush. If total votes matter, we would have to recount the entire nation, not just Florida. The Electoral College system saves us from that.

Under the present Electoral System, if there are allegations of fraud or claims that the voting machines failed to count all the votes because the older people in Florida did not press the voting button hard enough, the investigation is limited to states where the electoral votes matter and the race is close. In 2000, if the popular vote had decided the election, we would have had to recount the votes of the entire nation, because older people in Texas (which voted heavily Republican) might be like the Floridians (whom Gore claimed) did not follow the directions on the voting machine. The Electoral College avoids the nation-wide recount in close elections.

The Electoral College, in practice, gives a little more electoral power to racial minorities, such as blacks and Hispanics, and thus is important in helping to achieve racial justice. Because these minorities tend to live in the large cities of the bigger states, their votes are important in tilting all the electoral votes of their state, thus encouraging candidates of both parties to appeal for their votes.

A purely popular vote would encourage some states (particularly one-party states) to change their voting requirements in order to increase their influence in the entire nation. A state may drop the voting age to 17 or 16, because more people voting in that state would give that state more influence, by affecting the national vote, not just its electoral votes. If a simple majority governed, both the candidates and the voters would have acted differently. Donald Trump, for example, would have spent more time in California, because an extra vote there (or one in any other large state) would counterbalance a Clinton vote in New York.

Some pundits are now calling on the Donald Trump electors to violate their pledge to vote for the candidate for whom they are pledged. If an elector wants to vote that way, then he or she should run that way: “Elect me and I promise to vote for someone whom I will pick later.”

In contrast, every elector in this race has made one simple promise to the voters: “Elect me and I’ll vote for [Clinton; Trump; etc.].” It is not naive to expect politicians should keep their promise, particularly when they make just one promise—to vote for the candidate to whom they are pledged. If they do not, Congress should refuse to accept the vote of the faithless elector and count that vote as it was pledged, because faithless electors have deceived and disenfranchised those who voted for them.