Electoral College Democracy

Some failing arguments in defense of the Electoral College, and a look at two possible steps forward without constitutional amendment. Possible, but not likely.

“The electoral college is a disaster for democracy. * * * This election is a total sham and a travesty. We are not a democracy! * * * He lost the popular vote by a lot and won the election. We should have a revolution in this country! * * * The phony electoral college made a laughing stock out of our country.” Twitter, Donald Trump, 2012 (When it appeared the Romney would win more votes than Obama but lose in the Electoral College.)

“I would rather see it where you went with simple votes,” he said. “You know, you get 100 million votes and somebody else gets 90 million votes and you win.” Donald Trump, 60 Minutes, 2016. “The Electoral College is actually genius in that it brings all states, including the smaller ones, into play.” Donald Trump, Twitter, 11/15/2016.

Every four years the US awakens to the strangeness of the Electoral College. When the winner of the most citizen votes goes down to a defeat at the hands of the Collegians, there is a measure of real consternation. Although Romney did not, as Trump thought, win the popular vote. Gore and Hilary Clinton, as we all know, did – Clinton beating Trump by more than 2.5 million votes. Were three counties on the other side of state lines, the positioning of such lines being pretty arbitrary historical artifacts, the election would have gone to Clinton.

The disinterested observer, as well as the losing partisan, may be excused in thinking that the system is perfectly bizarre. Of course, come January it is more or less forgotten for another four years. The discussion may last a little into 2017, as the anointed 538 will cause to be inaugurated a popular vote loser who was judged broadly unfit by leading voices in both parties, by almost every editorial page in the country, and by a wide ranging chorus of world leaders, Putin, Assad, and Duterte to the contrary notwithstanding. The early days of the Trump Administration have done little to quiet fears of the President's fitness.

Even when the Electoral College doesn’t keep the plurality winner out of office, it makes most of the US electorate feel irrelevant – those who reside in states that are solidly blue or solidly red. Those who happen to live in “battleground states” get serious electoral leverage. As Nate Silver calculated it, my vote in New Hampshire had a probability of affecting the outcome of the election many times higher than it would have had if I had not removed there from New York. (NH benefits both from its battleground status and its small size, low population states getting a disproportionate share of Electors.) That is what it is for the small states to be “in play,” the downside being that the not insignificant populations of California, New York, and Texas have been out of play.

As a matter of theory (practice we will look at later) the burden of proof must be on the Electoral College, for any more than a tepid democrat. Is there an argument that might carry that burden?

What the founders wanted. Under drafters' intentions theories of constitutional interpretation, it is, of course, appropriate to quote the founding founders. (I am not, myself, partial to those theories. See "A Textualist Approach to Legal Interpretation,"  post 6/17/14, http://lawrencecrocker.blogspot.com/2014/06/here-is-draft-of-paper-on-legal.html.)  The issue for today, however, is not the meaning of a constitutional provision, but the suggestion that it should be amended out altogether, however it might be interpreted.

 

We Americans have such a high regard for the drafters of the Constitution, often amounting nearly to religious reverence, that it is sometimes implied that the bare fact that it was written into the Constitution as originally ratified is itself a reason in favor of retention of the Electoral College.

The founders were no doubt in many respects a fine bunch of gentleman (and gentlemen they were, by both gender and class). As admirable they might have been in other respects, their defense of slavery or their concessions to slavery (fugitive slave clause, 3/5 provision; 20 year protection for importation of slaves) were not admirable. Even if we owed some deference to the wisdom or nobility to the likes of Washington, Hamilton, Franklin, and Rutledge, and to other portions of the constitutional structure they crafted, the specific provision establishing the Electoral College was so heavily tainted by the concessions to slavery as to be a special case.

It was suggested in the high school history and civics texts of my day that the compromises on slavery were essential to formation of the nation, and therefore justifiable. This showed an utter failure of moral judgment. No nation state, though it be ever so grand, is worth constitutionalizing the ownership of human beings. Slavery is the opposite of liberty, a reality that not even the most elevated rhetoric can alter.

If deference is owed to the framers, it should be a selective deference. Moreover, were deference owed even on such a provision as the Electoral College, there is some reason to doubt how many of those who had a hand in drafting or ratifying the Constitution would support the Electoral College in today's circumstances. It is nearly certain that Madison would not: "The present rule of voting for President…is so great a departure from the republican principle of numerical equality…and is so pregnant also with a mischievous tendency in practice, that an amendment of the Constitution on this point is justly called for by all its considerate and best friends." (Letter to George Hay.,1823., Writings 9:147—55.)

Most capable, deliberative, judicious? Plato would have been keen to have a select group of wise men rather than the hoi polloi select the leader of the state. There were a few Platonists and other anti-democrats around in 1789 (and in 1803 when the 12^th Amendment tinkered with voting procedures in the College, but not its composition.) 

Madison made an explicitly elitist argument for the Electoral College in Federalist 68, contending that the electors would 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.” This year's crop of Electors includes Tim Dreste, convicted of extortion in violent threats against abortion providers. Typically, its members are midlevel political operatives highly partisan Democrats or Republicans. It is not easily mistaken for a gathering of Noble Laureates. 

The expected elite makeup of the Electoral College was to insure, Federalist 68 again, “that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” But, as already noted, Madison had changed his mind about the College quite a few years before the 2016 evidence as to the sort of President that might emerge victorious from its vote. 

Check against extreme interferences. Elitism aside, it can be argued that the Electoral College functions as a “catastrophe override” system. A check among balances, it may come into play to prevent a disaster. Here is a circumstance that didn't arise, but might have arisen in 2016. Suppose it were shown beyond any controversy that the vote tallies were hacked in an electorally pivotal state. The certified winner (after the expiration of the time for challenge) was in fact the numerical loser. The delegation, probably in derogation of the law of the state, could then vote in the Electoral College for the uncertified, but real, winner. The Electoral College would save the day.

Of course if the Electoral College were abolished, there would have to be enough hacking to swing the total national vote, not simply the vote in a pivotal state. This would be far more difficult. Were the popular vote spread small enough, however, (much smaller than that by which Clinton exceeded Trump), it might conceivably be possible.

Does this possibility auger in favor of the Electoral College? No. The present system extends the period for discovery of such mischief until the Electoral College date. With the abolition of the College, we could simply extend the period of challenge. The Electoral College then would be for this purpose a fifth wheel.

What if the catastrophe to be overridden is not fraud in the vote tally but a subtler tainting of the results – something for which an exercise of judgment is required? Fake news comes out at 9 am EST on election day that one candidate is about to be indicted or is receiving instructions from a foreign government or was actually born, to her Canadian parents, in Stanstead, Quebec, not Derby Line, Vermont. The story spreads as a social media fire in a strong partisan wind will do. Exit polls show that it affected more votes than the thin margin of the winner's victory. 

The Electoral College Delegates might then reverse the outcome. In a particular case, that might be a win for democracy. But do we want to leave in the hands of the Electoral College decisions about whether the news was really fake, whether the media fact checkers had sufficiently neutralized it, whether the exit poling was accurate? Is it a well designed deliberative body for this purpose?

Bear in mind that anti-democratic catastrophes in the Electoral College are also possible. Where the College tally is very close, a small number of secretly committed rogue delegates or bribed delegates could throw the election. (Virginia's entire delegation faithlessly refused to vote for Johnson for Vice President in 1836 because of his open sexual relationship with a slave. This threw the selection of Vice President into the Senate.) For abuse of this kind there is no check.

Ultimately we have to look to probabilities. It seems to me that the probabilities of abuse in the electoral college system are greater than they would be in universal popular vote. Small high leverage states are a point of vulnerability both for the election and the faithfulness of the Electors.

More important, even were otherwise uncorrectable abuse in the general election more probable than abuse in the Electoral College, that would still have to be weighed against the probability of electing the popular vote loser via the arbitrariness of the College. That probability we have to regard as fairly high, it having happened twice in very recent history.

As we leave elitist arguments and safety valve arguments behind, we move beyond arguments that can give any support to an electoral college with discretion. From this point on, the focus will not be on the individuals who vote in the college but on the number of votes in the colleges possessed by each state, and particularly on the advantage given to small states by assigning votes for senators as well as for members of the House. Also important is the ability of the states to award all their electoral votes to their plurality winner.

Voter desert. This argument is so ludicrous that to sketch it does more to undermine than support the Electoral College. It runs that the voters in some states are deserving of more leverage than voters of other states. Perhaps, Wyomians, of whom 142,741 get an Electoral College vote are 3.6 times more presidential-election-deserving than are Californians for whom that figure is 508,344. I am here talking about the desert of the individual, not that of the state itself, or even the individual as mediated by her relation to a particular category of state within the federal system. (Arguments for special solicitude for small states will be taken up shortly.) The argument would have to be something like the natural virtues of the cowboy life as compared to commuting life. Surely no line remotely like this will lead anywhere.

Wyoming and California are the paradigm pair when we look to voting leverage in abstraction from political demographics. In fact, the voters of both of these western states can reasonably feel that they individually have effectively no say in who becomes president, as Wyoming will surely vote for the Republican and California nearly as certainly for the Democrat. 

New Hampshire is the poster child for effective leverage because of its partisan balance together with its small state leverage. Yankee virtues are not that much more compelling than cowboy virtues, but a tiny case might be made that those who are exposed to more local diversity of opinion will tend to be more informed voters – a re-positioning of the elitist theme, but one with too little promise to be worth more attention.

Our initial intuition that the voters of no state are more individually deserving of electoral leverage than those of another must surely stand against any argument to the contrary.

Acres, not persons. There is a minor internet meme that Trump won by a great landslide. It is accompanied by a US map showing results by county. This map is nearly all red. Trump won many more counties, and many of the counties he won are very large. Take Haney County, Oregon. I can attest that a drive across this county seems everlasting. It is of more square miles than 6 states, and only a bit smaller than Massachusetts. It is 29 times larger than Multnomah County, Oregon, although of but 1% of the population of Portland's county. Haney contributes noticeably to the red of that map; Multnomah's blue requires a sharp eye.

We are a country of fields and farms, plains and mountains, lakes and rivers, not just people and cities. Doesn't the Electoral College properly leaven population with geography to give a better representation of the spirit of the country as a whole?

The implication of this line of thought is that there should ideally be some kind of multiplier applied to the vote of each citizen (distantly akin to the 3/5 clause). The factor will not take directly into account the number of Haney County's junipers and brushy sages, However, voters whose nearest neighbor is miles away would get a greater than one multiplier; those living in high-rise apartments well get less than one. The Electoral College, of course, is far from a perfect embodiment of this ideal, but it is better than the popular vote. 

One theory for giving geography this sort of independent influence on the Presidential selection process is that it encourages a form of diversity. There may not be many sagebrush ranchers, but theirs is a voice that deserves to be heard – and to be heard it needs to be a little amplified.

Were diversity really a concern, however, an acre sensitive multiplier is not going to be very effective. It may be ten miles from one rancher to the next and ten feet from the door of a Manhattan apartment, but there is a much higher probability that there will be a change of native language, culture, education, and even politics, across the ten feet than across the ten miles. If we were looking for raw diversity, we would want to give the cities a greater than unity vote multiplier, and the sparsely settled regions less than one. 

Perhaps, however, it is not really diversity, but the right kind of diversity that we should foster. The values of the open spaces are traditional values acquired by our pioneer ancestors and passed down with the land. It is these values that deserve a special weight, moderating democracy's potential to sail too readily into uncharted waters. This is really a wholly different theory, vaguely reminiscent of Burke. There is some correlation between rural areas and voting patterns tending towards the right side of the political spectrum, and, as the Electoral College gives some advantage to the rural over the urban, perhaps some version of a Burkean argument can be made for the College.

A brake upon democratic excess. 

 

      There is wisdom in caution.

      There is caution in remaining with the status quo or to innovating gradually.

      The more fully democratic a process is, the more likely it will depart the              status quo abruptly.

      Rural populations are more protective of the status quo than urban                      populations.

      Therefore it is wise to give rural populations extra voting weight as does the          Electoral College.

This argument is on one side of a deep theoretical divide, a divide deeper than that between Burkean conservatives and the rest of us. The fundamental disagreement is between consequentialist and deontological theories of democracy.

If the whole value of democracy lies in its producing good results, then the above argument is at least in the right territory. If, however, democracy's value lies in substantial part in its projection of individual autonomy and liberty into social decision making, and doing so in a fair way, then an argument for distributing voting power unequally to increase the chances of good results is not an automatic winner – even were its premises all true and its inference valid. One person one vote is a principle that should not be easily surrendered. This is not because it always produces the best results, but because it is fair. (For more on the fundamental value of democracy and on occasions on which those very values may license a departure from one person one vote see "The Moral Underpinnings of Democracy and its Degree Affected Variant,"  post of 9/13/14, http://lawrencecrocker.blogspot.com/2014/06/here-is-draft-of-paper-on-legal.html.)

Putting aside the criticism that jiggering democracy towards the status quo conflicts with the fundamental values underlying democracy, the argument's premises are not true, and its inference is not valid.

I will forego examples of when caution is not such a good idea to concentrate on the other steps of this argument. There are clearly important circumstances in which caution and the status quo come apart. Was the status quo foreign policy towards the rise of fascism in Germany and Japan the cautious approach? If the climate scientists are right a status quo energy policy is certainly the opposite of cautious. What caution really requires is giving special policy weight to  worst case scenarios of reasonable probability. Very often that is not a status quo policy.

Even if the status quo were always the cautious approach, the connection between the rural population and the status quo is at best shaky. Rural voters strongly supported Trump, who shows signs of being a radical departure from presidential norms long adhered to by the occupants of the oval office of both parties. 

There are certainly partisan reasons for distorting democracy in favor of rural voters, but there are no good reasons of policy, and certainly none based in sound political theory.

States, not persons. I am about to shift to arguments to be thought of as being made by states, or at least partly by or on behalf of states. To see that the sorts of claims might be rather different consider a vaguely Rawls-like thought experiment in which US citizens meet behind a veil of ignorance to decide between popular election of the president or election under the state based formula of the Electoral College. Veiled off is any information as to their state residence. Surely they would want to avoid the worst case of having less effect on the election outcome than other individuals who merely happen to live in a College-advantaged state.

Now please entertain the more exotic supposition that states have a sort of existence permitting them to deliberate behind a similar veil – as to whether a state would be large or small. The reasoning could get a little complicated depending upon what else the states know, but, other things equal, if electoral clout depends solely upon population then the worst case is to be a small, relatively isolated, state facing a nationwide popular election. The Electoral College, as structured by the Constitution, improves the smallest state's prospects, by giving it the same two Senatorial votes as has the largest state, together with one vote for its seat in the House.

You might balk at the idea of states having preferences, at least preferences other than those of its current citizens. However, I think we can make some sense of the idea. For example, a statute of 1905, specifying the method for selecting the state's electors to the College, might well have a preamble setting forth the state's endorsement of the supposed purposes of the Electoral College. At least while that statute remains in effect, it is fair to take it as setting forth the policy of the state.

Suppose now, however, that the state's voters ratify an amendment to the US Constitution abrogating the College in favor of popular election of the President and Vice President. At his point, nothing would remain of a pro-College state preference or policy.

Still, one might make an argument that the citizens of the state have it wrong. A Californian might vote against abolishing the College on the grounds that it would be unfair to Wyoming. This Californian might ascend into an exotic political metaphysics of states. He would not bring many of us along, however. As Constitutional Convention Delegate James Wilson rhetorically asked, "Can we forget for whom we are forming a government? Is it for men, or for the imaginary beings called States?" from Madison, Notes of Debates in the Federal Convention of 1787. W.W. Norton & Company.

 

It would be better for our hypothetical Californian to anchor his judgment of unfairness in some way in the people of Wyoming – most naturally in a speculation as to the preferences of a future population of that state. As against the vote of actual Wyomians to abolish the College, however, speculations about future citizens of that state should, I think, carry very little weight.

State reliance. The chief motivation for the Electoral College was that it was needed to persuade the slave states and perhaps the smallest northern states to sign up. The argument that we owe it to South Carolina to keep the College lost any force it had when that state fired on Fort Sumter. This point extends to the other secessionist states. The same, of course, cannot be said of Rhode Island, which was famously cautious about joining the union. In the cold light of reality, it is unlikely that it could long have been in the interest of Rhode Island to hold out once the other twelve former colonies had united, even without the inducement of favorable Electoral College math. Very much the same can be said of the states that petitioned for admission – from Vermont on down to Hawaii. I know of no historical evidence that any of these states would have been reluctant to join into the union absent the Electoral College Provision. 

Moreover, it is not at all clear that any of the states “detrimentally relied” as that phrase has traditionally been understood in contract law. Statehood confers some responsibilities, of course, but it is going to be a difficult argument that its burdens have exceeded its benefits.

State equality. This, I think, is the most interesting of the arguments for the Electoral College. A just federal system must have certain kinds of equality among its member states. Many aspects of inter-state relations should be rigorously symmetrical. In some instances equality is extended much farther. The central government executive function has even been rotated from member state to member state. The executive body of the European Union, the European Commission, has one member from each of the member states. (I do not say “delegate” because each member swears to be governed by the interests of the EU, not those of her own state.)

In contrast to the the EU, consider Newlandia, that half-Australia-sized island that, for reasons the geologists still hotly debate, suddenly sprang up in the mid-Pacific. The settlers, a disparate group of refugees and early adopters, have divided the country into ten states using latitude and longitude lines and outdoing even the Kansas county map in its rectilinearity. The primary function of the states is to provide the third line of a postal address and for similar sorts of administrative convenience. A proposal that the President of Newlandia should be the plurality winner in a plurality of these states would be a non-starter. State Three and State Six of Newlandia don't have the historical, cultural, social, and economic differences of Germany and France. That member states in one way or another should mediate between the popular vote and the election of the executive makes some sense in the European Union, but none in Newlandia.

So, put roughly, the internal coherence of the state and its distinctness from other states are what tend to make more appropriate some bending of popular democracy towards more state equality in the election of a federal executive. More accurately, it is the perception of internal state coherence and external distinctness by the citizens that is crucial. It is the individual citizen that is asked to give up his or her equality of the vote with citizens of other states in the interest of the uniqueness and importance of states. If the states are really very different, but no one much cares about these differences, then the sacrifice of voter equality will not make sense.

The US is somewhere intermediate between the EU and Newlandia. Iowa and Illinois are not nearly as different in history and culture as are Germany and France, and the sway of the state government of Iowa is a good deal more restricted than that of France. Yet Illinois and Iowa are more different from each other than is Newlandia State Three from Newlandia State Four, and the laws of Illinois constrain the Illinoisans, if less than French law constrains the French, more than State Three laws, if any there be, constrain the Threes.

It might be argued, then, that Electoral College represents an appropriate compromise between the general popular election of Newlandia and an election of the executive based on strict equality of the states, as more nearly approached by the EU. 

Against such a compromise, there is surely abundant evidence that since 1789 the US has been trending away from the EU end of the spectrum. For better or worse, the federal government has gained in visibility and power at the expense of the states. Constitutionally the radical change was the adoption of the 13^th, 14^th, and 15^th Amendments, directly and dramatically restricting the power of the States. The 17^th Amendment, popular election of Senators further demoted the states as represented by their state legislatures in favor of their voting citizens, and the 19^th took away the states' power to keep women disenfranchised.

As to the scope of federal legislation, whether the Supreme Court's interpretation of the General Welfare Clause, Taxation Clause, Commerce Clause, Supremacy Clause, and Necessary and Proper Clause have been overly expansive or overly restrictive (or some of each), substantial extension of the federal reach there has been.

Since 1789 the importance of the federal military has also grown enormously. (Many founders fervently hoped that there would be no peace time army at all, and worked that hope into the Constitution, if imperfectly.) At the same time the state militias have become relatively less important and less creatures of the state in their new form as the National Guard. 

In 1789 it was arguable that the Governor of Virginia held a more important post than the President of the United States, and nearly all Virginians probably thought of themselves first as citizens of Virginia and only derivatively, if at all, citizens of the United States. Now of the 7 million or so who move from state to state each year, most probably retain stronger ties of loyalty to their old sports teams than they do to their states of emigration. People choose residency in New York, New Jersey or Connecticut, more on house prices and commutes than on what state citizenship they will leave behind or acquire. The states are presumably of primary importance for their elected officials and may well be for many of the party activists. This has long not been so for most of us, so for most of us there seems no good reason to sacrifice equality among voters for any voting scheme to increase equality among states.

US states are equal in many and important respects. No state has more of the general legislative authority ("police power") than any other, their courts are of equal status, and no state has more or less ability to deal with each other and foreign nations than does any other state. The states also will always have, for better or worse (I think worse) equal representation in the Senate -- the Constitution's only unexpired, unamendable (effectively) provision (state unanimity being, as a practical matter, required). See https://lawrencecrocker.blogspot.com/2019/02/is-non-amendable-constitutional.html. 
The states do not need to be made more nearly equal by artificially increasing the effect of some of them on the presidential election.

Back to reality. The balance of argument is, I think, very decidedly on the side of abolishing the Electoral College in favor of a general popular vote election of the President and Vice President. That, however, is not going to happen in any foreseeable future. Neither party would support the required constitutional amendment if it thought it might loose an advantage by so doing. Currently the Republicans have overwhelming advantage in the amendment process, with control of both houses of Congress and of the legislatures of about three fifths of the states, three quarters being required for ratification. A Republican President looks forward to working a “popular mandate” magnitude transformation in Washington in the face of a substantial loss in the popular vote. The Electoral College provision of the Constitution will not be touched.

Going Maine and Nebraska. If the Electoral College cannot be abolished, some of its anti-democratic force can at least be lessened – the marginalization of the safe-state voter. States can adopt some form of proportional allocation of their electoral votes rather than winner take all. This can be done by congressional electoral district, or better, to avoid the anti-democratic gerrymandering of congressional districts, by the proportions of the overall state vote. This will not give the Republican in California or the Democrat in Texas the same leverage as the New Hampshire voter, but it will give those disadvantaged voters some leverage. The Democrat in Wyoming still may be without hope of effect (3 electoral votes, Clinton 22%), similarly the Republican in DC (3 votes, Trump 4%), but elsewhere voters for the second candidate in their states would have some chance of contributing to an Electoral College victory. Even in three vote Vermont Trump got nearly a third of the popular vote. 

 

One drawback of this idea is that it is likely to be instituted in the most partisan way possible. States whose legislatures are of one party, but usually vote for the other party for President, will be most eager to do Maine-Nebraska. Carried out in this spotty fashion, the reform could actually increase disparities between the Electoral College vote and the popular vote. The use of gerrymandered congressional districts rather than proportional voting would also lessen the efficacy of the reform in approaching to one person one vote. (And if, in comparison to earlier generations we feel less identity with our states, few of us feel any identity at all with our congressional districts.) The process can be expected to heighten partisan animosity, which is already plenty high enough. (The hostility of the founders to “faction” is one point on which our politicians apparently do not revere the founders.) 

It is not wholly inconceivable that an informal bipartisan group of state governors and legislators could negotiate a pairing system in which, for example, California would agree to go proportional if Texas, Tennessee, and Utah did. One difficulty of the pairing process, however, is brought out by this very example. Demographic trends in California, Tennessee, and Utah are unlikely to change the state's electoral color. The same is not true of Texas, and so Democrats might balk at this particular deal. In general, I am afraid, there is little hope that any set of meaningful swaps could be expected.

National Popular Vote Interstate Compact. On first view more practically promising is state legislation to bind the state to send Electors to the College in support of the national popular vote winner. The compact takes effect when and only when states with 270 electoral votes agree to it, thus assuring that the Electoral College winner will, in fact, be the candidate with the plurality of popular votes nationwide. It's fair; it's genuinely one person one vote democratic; it doesn't marginalize the voters of safe red and safe blue states. It has been passed in 10 states and DC, having a total electoral vote of 165 -- 61% of the vote needed.. It has passed at least one legislative chamber, at one time or another, in 12 additional states which would yield a total of 263 electoral votes. Add Minnesota or Ohio or North Carolina to that number, and the Compact would go into effect.

But, of course, it won't go into effect. There is a plausible argument, although at odds with current Supreme Court precedent, that such a compact would have to be approved by Congress. That is not the primary problem, however. The problem is that only blue states have approved the Compact. After the current election, I think we can be assured that no red state will in any foreseeable future.

It would be delightful to see the issue debated in terms of democratic theory. It is, however, already decided by partisan calculation.