And another thing about the Electoral College

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Update to Abolish the Electoral College and make our democracy truly democratic.

And another thing … Efforts to eliminate the electoral college date back 50 years:

With at least one presidential candidate calling for the elimination of the Electoral College, CNN’s John Avlon delivered a fact check that showed that the idea is hardly radical: efforts to get rid of it date back to the founding of the country, and even President Richard Nixon was on board.

“The Electoral College has been targeted for reform or abolition some 700 times,” said Avlon. “That’s more than any other part of the constitution.”

Founding father James Madison declared the Electoral College “evil at its maximum”* a year before Andrew Jackson won the popular vote but lost the presidency to John Quincy Adams.

* This “fact” is being disputed by the conservative media. See the Washington Examiner:

Here’s the longer Madison quote, which comes from a letter dated Aug. 23, 1832 [emphasis added]:

It might indeed happen that the event would turn on one or two States having one or two Reps. only; but even in that case, the Representations of most of the States being numerous, the House would present greater obstacles to corruption, than the Senate with its paucity of Members. It may be observed also, that altho’ for a certain period the evil [harm] of State votes given by one or two individuals would be extended by the introduction of new States, it would be rapidly diminished by growing populations within extensive territories. At the present period, the evil [harm] is at its maximum.

Humorously enough, the same letter sees Madison endorsing an amendment by which the Electoral College would be preserved but relegated to districts rather than entire states. As libertarian author David Harsanyi notes, “Of all the founders, in fact, Madison, who wanted to create more voters in the Electoral College, made the most impassioned arguments against direct democracy in Federalist #10.”

We’re a long, long way from that tweet claiming Madison called the Electoral College “evil.”

A fair point — Madison’s quote is actually about an election being decided by a vote in the House, not by the Electoral College — but Madison, the principal author of the U.S. Constitution, by 1832 was reconsidering the Electoral College and endorsing an amendment to reform it. So the Washington Examiner kind of stepped on its own “gotcha” of CNN.

Back to the report:

“Happening again in 1876 and 1888, which made incumbent Grover Cleveland so mad that he ran again 4 years later and reclaimed the office his supporters felt could be stolen from him,” Avlon said.

“This little glitch didn’t happen during the 20th century but reform efforts continued,” Avlon went on. “In fact, Indiana senator Birch Bayh, who just last week died at age 91, came within a few votes of advancing an amendment to abolish the Electoral College and replace it with a direct popular vote.” That effort eventually got the support of 80% of Congress.

“One year later, the House of Representatives voted overwhelmingly, to abolish the Electoral College,” Avlon said. “Even president Nixon was on board, but it was filibustered to death in the Senate by southerners led by [segregationist] Strom Thurmond.

Note: Sen. Birch Bayh was Chairman of the Subcommittee on Constitutional Amendments, and in that role authored two constitutional amendments: the twenty-fifth — which establishes procedures for an orderly transition of power in the case of the death, disability, or resignation of the President of the United States — and the twenty-sixth, which lowered the voting age to 18 throughout the United States. Bayh is the only non-Founding Father to have authored two constitutional amendments. Bayh also led unsuccessful efforts to ratify the Equal Rights Amendment and eliminate the Electoral College. (h/t Wikipedia).

Avlon said that the Electoral College ceased to be an issue until the 2000 election, when George W. Bush lost the popular vote but won the presidency, as did Donald Trump in 2016.

There has been five times the popular vote winner was denied the presidency by the anti-democratic Electoral Collage, twice since 2000. With increasing urbanization, and what Bill Bishop has labeled The Big Sort, i.e., Americans sorting themselves over the past three decades into homogeneous like-minded communities, it is more probable to occur with increasing frequency.

This delegitimizes our democracy and causes Americans to lose faith in our electoral system. We are a country that believes in whomever receives the most votes wins. But only in America can the loser of of the popular vote be declared the winner because of the perverse anti-democratic nature of the Electoral College.

The New York Times‘ Jamelle Bouie has a well-reasoned op-ed, Getting Rid of the Electoral College Isn’t Just About Trump:

At a CNN town hall in Jackson, Miss., on Monday night, Senator Elizabeth Warren of Massachusetts called for shutting down the Electoral College. “I believe we need a constitutional amendment that protects the right to vote for every American citizen and to make sure that vote gets counted,” she said.

Her suggestion brought a sharp response from Republicans.

“The desire to abolish the Electoral College is driven by the idea Democrats want rural America to go away politically,” Senator Lindsey Graham of South Carolina said on Twitter. His colleague Marco Rubio posted a similar note, calling the Electoral College a “work of genius” that “requires candidates for president to earn votes from various parts of country. And it makes sure interests of less populated areas aren’t ignored at the expense of densely populated areas.”

President Trump weighed in as well: “With the Popular Vote, you go to just the large States — the Cities would end up running the Country. Smaller States & the entire Midwest would end up losing all power — & we can’t let that happen. I used to like the idea of the Popular Vote, but now realize the Electoral College is far better for the U.S.A.”

It’s not hard to guess why Republicans are riled by Warren’s embrace of a national popular vote. Without the Electoral College, neither Trump nor his Republican predecessor George W. Bush would have won the White House on their first go-round. At the same time, these self-interested or party-specific arguments are part of a larger conversation.

In February, I wrote about the Electoral College, its origins and its problems. Whatever its potential merits, it is a plainly undemocratic institution. It undermines the principle of “one person, one vote,” affirmed in 1964 by the Supreme Court in Reynolds v. Sims — a key part of the civil and voting rights revolution of that decade. It produces recurring political crises. And it threatens to delegitimize the entire political system by creating larger and larger splits between who wins the public and who wins the states.

Many readers disagreed, making arguments similar to those used by the president and his allies. But those claims — that the Electoral College ensures rural representation, that its counter-majoritarian outcomes reflect the intentions of the framers and that it keeps large states from dominating small ones — don’t follow from the facts and are rooted more in folk civics than in how the system plays out in reality.

Take rural representation. If you conceive of rural America as a set of states, the Electoral College does give voters in Iowa or Montana or Wyoming a sizable say in the selection of the president. If you conceive of it as a population of voters, on the other hand, the picture is different. Roughly 60 million Americans live in rural counties, and they aren’t all concentrated in “rural” states. Millions live in large and midsize states like California, New York, Illinois, Alabama and South Carolina.

With a national popular vote for president, you could imagine a Republican campaign that links rural voters in California — where five million people live in rural counties — to those in New York, where roughly 1.4 million people live in rural counties. In other words, rural interests would be represented from coast to coast, as opposed to a system that only weights those who live in swing states.

Totaling the 2016 numbers, Sam Wang, a molecular biologist at Princeton who also runs a widely read election website, found that out of almost 400 campaign stops made after the conventions, neither Hillary Clinton nor Donald Trump made appearances in Arkansas, Oregon, Idaho, Wyoming, Montana, the Dakotas, Kansas, Oklahoma, Louisiana, Mississippi, New York, South Carolina, Tennessee, Kentucky, West Virginia or Vermont. It doesn’t matter that Trump won millions of votes in New Jersey or that Hillary Clinton won millions in Texas. If your state is reliably red or blue, you are ignored.

By contrast, under a national popular vote, the margin of your loss within a state matters as much as the size of your win. Democrats would have reason to maximize their share of the vote in the Deep South, and Republicans would see the same incentive in the Northeast (and the West for that matter).

Still, you might argue, the Electoral College keeps large states from dominating small ones. If there were no such system, campaigns could win by focusing all their attention on the largest states. As a matter of math, that is unlikely. In 2016, New York, California, Texas and Florida cast about 35 million ballots, roughly a quarter of the total 137 million. Even if you somehow won every single one of those ballots, you’d still have to campaign elsewhere for tens of millions more votes, assuming a 50 percent threshold. Take the total of 2016 presidential votes in the 10 largest states, and you’d get only 71 million ballots, or about 52 percent of the vote.

In the incredible event that a candidate won every ballot cast in those states, then yes, under a national popular vote, he or she could ignore the rest of the country and become president. But that isn’t politically possible. Even an attempt to “run up the score” and retreat to the largest cities isn’t viable — there just aren’t enough votes.

Compare that with what we have under the Electoral College, where hypothetically a bare majority in the 11 largest states is all it takes to win 270 electors and become president — an actual instance of big-state domination.

Beyond the numbers, it is a conceptual error to focus on states in a race for votes. Who wins Virginia has implications for down-ballot races for Congress, but it’s just a curiosity in the fight for the White House. What would count are voters and communities, and candidates would have multiple avenues for building majority coalitions across state lines.

This gets to a larger point. As James Madison observed during the Constitutional Convention, the political interests of the states aren’t actually tied to size. Instead, whether states share interests will depend on shared conditions and connections. Massachusetts and Tennessee have populations of similar size but little in common otherwise; Massachusetts and Connecticut, on the other hand, are linked by history and geography.

In modern politics, intrastate political differences are as important as interstate ones. Voters in Milwaukee may have more in common with voters in Richmond, Va., than they do with those in Superior in the northwest of the state. A national campaign would probably follow suit, with candidates looking for connections between regions, cities and metropolitan areas versus a singular focus on a few states.

It is true the founders feared “mob rule” and “pure democracy.” But electing a president isn’t the same as either. When Madison referred to “pure democracy” in Federalist No. 10, he meant direct governance by the people. “A society consisting of a small number of citizens, who assemble and administer the government in person.” He contrasted this with representative democracy, or “republican” government. And while Madison agreed to an Electoral College, he also saw the merit of choosing a chief executive by popular election.

“The people at large,” he argued during the Constitutional Convention, “would be as likely as any that could be devised to produce an Executive Magistrate of distinguished Character. The people generally could only know & vote for some Citizen whose merits had rendered him an object of general attention & esteem.” His main reservation was slavery and how it made “the right of suffrage” more “diffusive in the Northern than the Southern States.”

The Founding Fathers included many slave owners, including James Madison, who owned slaves his whole life and did not free his slaves in his will. How Many U.S. Presidents Owned Slaves?: “All told, at least 12 chief executives—over a quarter of all American presidents—were slave owners during their lifetimes. Of these, eight held slaves while in office.”

Beyond issues of representation, there are other practical problems with the status quo. When margins between candidates are large, the Electoral College aligns with the national popular vote. But narrow margins throw it into chaos. The 1968 presidential election nearly went to the House of Representatives; in 1976, if you move roughly 6,000 ballots from Jimmy Carter in Ohio and roughly 18,000 in Wisconsin and Gerald Ford becomes president despite losing by nearly 1.7 million votes.

Indeed, the recurring prospect of a president elected with a minority of the vote inspired a major push to end the Electoral College beginning in the 1960s. In 1966, Senator Birch Bayh of Indiana — who died last week at 91 — introduced a constitutional amendment to elect the president by national popular vote. In 1968, Bayh spoke before a committee of Congress in support of his amendment. His words still resonate. In 1968, addressing a committee of Democrats in Indiana, Bayh urged fellow Democrats to support his proposal.

“We are living in a dangerous world where the stability of the United States of America is one of the most important things facing us,” he said. “When we have an Electoral College system which threatens to elect a man who has fewer votes than his opponent, we tend to erode the confidence in the people of this country and their president and in their form of government.”

James Michener, an author who served as a presidential elector in 1968, was even blunter. The Electoral College, he wrote, was a “time bomb lodged near the heart of the nation.”

It still is.

Conservative columnist Henry Olsen similarly argues at the Washington Post, Conservatives: Think before you defend the electoral college:

Conservatives have predictably denounced the call from Sen. Elizabeth Warren (D-Mass.) to abolish the electoral college. They should rethink their opposition. It is in conservatism’s long-term interest to trade the college for a major reform of our voting system that works for both parties.

* * *

So long as the electoral college merely amplified the popular vote’s determination, the college was not seen as illegitimate.

The current political circumstances, however, have changed that dramatically. President Trump won in 2016 because his political coalition was efficiently distributed among states with a majority in the college. Moreover, the durability of that coalition despite withering criticism creates the strong possibility that he could be reelected in 2020 while losing the popular vote by an even greater margin. His successor in 2024 could win while losing the popular vote by still greater margins.

That simply cannot stand over time. The majority of Americans will not consent to being ruled by a minority, nor should they. Whatever the republican theory of the founding generation, public opinion now conflates republican government with liberal democracy, and democracy cannot long endure the rule of the majority by a minority.

Continued endorsement of this system by conservatives and the Republican Party will, over time, convince a crucial segment of Americans, especially the young coming of age during this debate, that conservatives do not favor democracy … if conservatives come to be seen as opposed to democracy itself, Americans will reject their cause.

Conservatives should also favor a change because of the perverse incentives the electoral college creates. We cannot change our country without a majority of people behind us. But the electoral college system encourages a president such as Trump to double down on a base-only strategy that maximizes the political power of important minority groups such as blue-collar whites. This prevents conservatives and Republicans from making the broader appeal necessary to win majority support, rendering their quest to change the country fruitless.

All good points.




3 COMMENTS

  1. Oh, the National Popular Vote compact would almost certainly have to withstand the Courts. With the Supreme packed with a conservative majority, I have no certainty saying what the Courts will do. Indeed, the whole scheme may break down on the Interstate Compact clause requiring consent of Congress to any interstate agreements. Unless Dems control both chambers, that’s not likely, either. In short, the compact is a great idea, but it is not a surefire end-run of the Constitution on the continued existence and relevance of the Electoral College.

    • The Interstate Compact on Placement of Children is one of the many interstate compacts that do not require (and never received) congressional consent.

      The U.S. Supreme Court has ruled that congressional consent is only necessary for interstate compacts that ‘encroach upon or interfere with the just supremacy of the United States [U.S. Steel Corporation v. Multistate Tax Commission, 1978].’ Because the choice of method of appointing presidential Electors is an “exclusive” and “plenary” state power, there is no encroachment on federal authority.
      Thus, under established compact jurisprudence, congressional consent would not be necessary for the National Popular Vote compact to become effective.

  2. The National Popular Vote bill is 67% of the way to guaranteeing the majority of Electoral College votes and the presidency to the candidate who receives the most popular votes in the country, by changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

    It simply requires enacting states with 270 electoral votes to award their electoral votes to the winner of the most national popular votes.

    All voters would be valued equally in presidential elections, no matter where they live.
    Candidates, as in other elections, would allocate their time, money, polling, organizing, and ad buys roughly in proportion to the population

    Every vote, everywhere, for every candidate, would be politically relevant and equal in every presidential election.
    No more distorting, crude, and divisive and red and blue state maps of predictable outcomes, that don’t represent any minority party voters within each state.
    No more handful of ‘battleground’ states (where the two major political parties happen to have similar levels of support) where voters and policies are more important than those of the voters in 38+ predictable winner states that have just been ‘spectators’ and ignored after the conventions.
    We can limit the power and influence of a few battleground states in order to better serve our nation.

    The bill would take effect when enacted by states with a majority of the electoral votes—270 of 538.
    All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes among all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.

    The bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
    Since 2006, the bill has passed 37 state legislative chambers in 23 rural, small, medium, large, red, blue, and purple states with 261 electoral votes.
    The bill has been enacted by 13 small, medium, and large jurisdictions with 181 electoral votes – 67% of the way to guaranteeing the presidency to the candidate with the most popular votes in the country

    NationalPopularVote.com

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