The Electoral College Works Fine, Just as It Is

Updated:
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.

  • Joe Paulson

    “Our Electoral College system prevents candidates with only regional appeal from winning.”

    Not really. Repeatedly, there are “blue” states and “red states” (some difference over the generations) with a few swing states. So, “regional appeal” is key here. Trump won a thin margin of votes in a few states. His “regional” appeal in those states countermanded total popular vote totals. This sort “principle” would make general one person, one vote principles problematic since some areas of a state, e.g., might vote for certain governors more.

    The Electoral College had and I guess still has a few major purposes. Two basically are rejected today. (1) A few now aside, we don’t want independent electors. Note the system was originally intended/expected to allow that. If the system is working ‘fine,’ we should allow electors to have independent judgment. Why have electors instead of allotted the votes? (2) The whole slavery bonus factor. These purposes were highlighted including by Hamilton and Madison more than the others in many cases.

    The benefit to small states is small and winner take all electors only decreases it (btw DC has an artificial limit here since it has to have at most the number of electors of the least populous state even if it in more populated than it). Safe small states are generally ignored. As to states gaming the system, the change can set universal vote rules to prevent that sort of thing. I’m not totally clear on why imperfect regional balancing should have so much significance over one person, one vote. Federalism is promoted in other ways.

  • Donald Holland

    It is interesting that Democrats want to eliminate the electoral college in favor of pure democracy when THEIR candidate loses, but what if democracy results in THE OTHER candidate getting the popular vote? Didn’t the Founders and other political giants warn against democracy and the tyranny of the majority? Also, a recent viewed comment said there have been about 500 attempts to eliminate the electoral college….

    • Joe Paulson

      People (Democrats and otherwise) have opposed the electoral college before now and before 2000. They would if given the chance, for everyone, for each election, no matter who wins, rely on the popular vote.

      We have checks on democracy, but since 1787, we also have determined democracy should be more secured. For instance, the Founders didn’t trust women and those without property to vote. Few blacks were allowed to vote. People did not directly elect senators. And, electors in the Electoral College was assumed to vote independently, since people themselves were not to be trusted. But, suggestions the electors vote against Trump even if pledged to him is seen as a bad idea even by many Democrats.

      500 sounds like a lot — some token effort doesn’t mean much. But, various good ideas don’t get much traction, different sides having ideas of what they should be. Many attempts before good things happen, be it women suffrage, the end of slavery etc. too.

  • drwex

    The problem here is that the Electoral system penalizes people for non-electoral geographic choices. A person’s choice of residence is influenced by a host of factors, including family location, upbringing, job availability, and so on. Few people choose their place of residence in order to give their vote more weight, and yet that’s the effect of the current system.

  • toto

    In the current system, battleground states are the only states that matter in presidential elections. Campaigns are tailored to address the issues that matter to voters in these states.

    Safe red and blue states are considered a waste of time, money and energy to candidates. These “spectator” states receive no campaign attention, polling, organizing, visits, or ads. Their concerns are utterly ignored.

    The influence of ethnic minority voters has decreased tremendously as the number of battleground states dwindles. For example, in 1976, 73% of blacks lived in battleground states. In 2004, that proportion fell to a mere 17%. Just 21% of African Americans and 18% of Latinos lived in the 12 closest battleground states. So, roughly 80% of non-white voters might as well have not existed when there were 12 battleground states..

    The bill has been endorsed by organizations such as the League of Women Voters, Common Cause, FairVote, Sierra Club, NAACP, National Black Caucus of State Legislators, ACLU, the National Latino Congreso, Asian American Action Fund, DEMOS, National Coalition on Black Civic Participation, Public Citizen, U.S. PIRG, and the Brennan Center for Justice.

  • toto

    Because of state-by-state winner-take-all laws, not mentioned, much less endorsed, in the Constitution. . .

    537 votes, all in one state determined the 2000 election, when there was a lead of 537,179 (1,000 times more) popular votes nationwide.

  • toto

    The current presidential election system makes state recounts more likely. All you need is a thin and contested margin in a single state with enough electoral votes to make a difference. It’s much less likely that the national vote will be close enough that voting irregularities in a single area will swing enough net votes to make a difference. If we’d had National Popular Vote in 2000 or 2016, no recount would have been an issue.

    The idea that recounts will be likely and messy with National Popular Vote is distracting.

    No statewide recount, much less a nationwide recount, would have been warranted in any of the nation’s 57 presidential elections if the outcome had been based on the nationwide count.
    The state-by-state winner-take-all system is not a firewall, but instead causes unnecessary fires.
    “It’s an arsonist itching to burn down the whole neighborhood by torching a single house.” Hertzberg

    The 2000 presidential election was an artificial crisis created because of Bush’s lead of 537 popular votes in Florida. Gore’s nationwide lead was 537,179 popular votes (1,000 times larger). Given the minuscule number of votes that are changed by a typical statewide recount (averaging only 274 votes); no one would have requested a recount or disputed the results in 2000 if the national popular vote had controlled the outcome. Indeed, no one (except perhaps almanac writers and trivia buffs) would have cared that one of the candidates happened to have a 537-vote margin in Florida.

    Recounts are far more likely in the current system of state by-state winner-take-all methods.

    The possibility of recounts should not even be a consideration in debating the merits of a national popular vote. No one has ever suggested that the possibility of a recount constitutes a valid reason why state governors or U.S. Senators, for example, should not be elected by a popular vote.

    The question of recounts comes to mind in connection with presidential elections only because the current system creates artificial crises and unnecessary disputes.

    We do and would vote state by state. Each state manages its own election and is prepared to conduct a recount.

    Given that there is a recount only once in about 160 statewide elections, and given there is a presidential election once every four years, one would expect a recount about once in 640 years with the National Popular Vote. The actual probability of a close national election would be even less than that because recounts are less likely with larger pools of votes.

    The average change in the margin of victory as a result of a statewide recount was a mere 296 votes in a 10-year study of 2,884 elections.

    The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December. With both the current system and the National Popular Vote, all counting, recounting, and judicial proceedings must be conducted so as to reach a “final determination” prior to the meeting of the Electoral College. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their “final determination” six days before the Electoral College meets.

  • toto

    Trump, November 13, 2016, 60 Minutes
    “ I would rather see it, where you went with simple votes. You know, you get 100 million votes, and somebody else gets 90 million votes, and you win. There’s a reason for doing this. Because it brings all the states into play.”

    In 2012, the night Mitt Romney lost, Donald Trump tweeted.
    “The phoney electoral college made a laughing stock out of our nation. . . . The electoral college is a disaster for a democracy.”

    Recent and past presidential candidates who supported direct election of the President in the form of a constitutional amendment, before the National Popular Vote bill was introduced: George H.W. Bush (R-TX-1969), Jimmy Carter (D-GA-1977), Hillary Clinton (D-NY-2001), Bob Dole (R-KS-1969), Michael Dukakis (D-MA), Gerald Ford (R-MI-1969), and Richard Nixon (R-CA-1969).

    Recent and past presidential candidates with a public record of support, before November 2016, for the National Popular Vote bill that would guarantee the majority of Electoral College votes and the presidency to the candidate with the most national popular votes: Congressmen John Anderson (R, I –ILL), and Bob Barr (Libertarian- GA), Senator Birch Bayh (D-IN), Senator and Governor Lincoln Chafee (R-I-D, -RI), Governor and former Democratic National Committee Chair Howard Dean (D–VT), U.S. House Speaker Newt Gingrich (R–GA), Senator and Vice President Al Gore (D-TN), Ralph Nader, Governor Martin O’Malley (D-MD), Jill Stein (Green), Congressman Tom Tancredo (R-CO), and Senator Fred Thompson (R–TN).

    Newt Gingrich summarized his support for the National Popular Vote bill by saying: “No one should become president of the United States without speaking to the needs and hopes of Americans in all 50 states. … America would be better served with a presidential election process that treated citizens across the country equally. The National Popular Vote bill accomplishes this in a manner consistent with the Constitution and with our fundamental democratic principles.”

  • toto

    Republican AND Democratic presidential candidates spend no time campaigning in California or 37 other states, because of state winner-take-all laws.

  • Ted Harvatin

    Excellent post. Good read for the unhinged pantsuit crowd.

  • Thank You Ronald for your presentation. This is something that I learned when I was in high school and I went to high school in California to boot. As you mention small states would be ruled by the larger or highly populous states. There is a reason for this and anyone who does not understand it should take a course in the founding fathers reason for the way the U. S. Constitution was formed. I would say that winner take all within states cause a problem of individual districts not having a voice. I would like to see that changed back. We are a group of states in which each state is a part of the whole only for the purposes stated within the Constitution of the united states of America.

  • G.N.M.

    I agree that the electoral college works well. The only problem is the possibility of rogue electors filing to vote as required or pledged.