Graduating from the Electoral College
The Electoral College is, as it was intended to be, a buffer against direct popular election of the president. The Electoral College exists today pretty much as it was created in 1789.
There was one important modification, adopted in 1804, that provided for separate Electoral College voting for president and vice president, to make it clear which was which. No more Aaron Burr tying Thomas Jefferson in the Electoral College, throwing the election to the House of Representatives, where the losing Federalists tried to mess things up by voting for Burr.
The method of selection of “electors” (which is what the constitution calls the members of the Electoral College) was left to each state to decide. Originally, most electors were selected by state legislatures. But over the years, popular election of electors became the norm for all 50 states, as well as Washington, D.C., which was given three electors in 1961, despite not being a state. In fact, the names of the electors we are technically voting for no longer appear on the ballot – we think and act as if we are voting directly for president.
As the early American distrust of popular voting dissipated, the Electoral College came under criticism. In 1936, the New York Times colorfully called the Electoral College a “cumbrous and useless piece of old governmental machinery.” The Times was apparently miffed that Republican Alf Landon had won all of 36 percent of the popular vote but only eight out of 531 electoral votes.
Although the Times’ point was pretty much academic in 1936, it was anything but academic in 2000: Al Gore won the popular vote by half a percent, but he lost the electoral vote by five. (He should have lost by four, but one of the D.C. electors abstained.) In 2012, pundits briefly entertained the possibility that Mitt Romney would win the popular vote but lose in the Electoral College. Of 47 presidential elections since popular selection of electors became the norm, the popular vote winner has lost the election three times – in other words, we have elected the less popular candidate six percent of the time. This is not an academic point.
Electoral College abolitionists came close to prevailing only once, early in the Nixon administration. In 1969, the House of Representatives approved a constitutional amendment to do away with the Electoral College, by a 339-70 vote. President Nixon announced his support for the amendment, and the Senate took it up in 1970. Senators from small states and southern states filibustered, two cloture motions failed by votes of 54-36 and 53-34, and that was that. The cloture votes were probably moot, for two reasons. First, a two-thirds majority of the Senate had to approve the proposed amendment to send it to the states. The cloture votes strongly suggest that two-thirds was unreachable. Second, 38 states had to ratify the amendment to make it effective, and a New York Times review of the states at the time found 30 states in support, 14 opposed, and six undeclared.
For many years, I sided with the abolitionists. In a democracy, the people should choose their president, the majority should win the election, and nobody’s vote should carry more weight than anyone else’s.
But the 2000 Bush-Gore debacle gave me pause. The popular vote was close – out of 101 million votes cast, Gore polled just a half-million more votes than Bush. The vote was even closer in Florida – out of six million votes cast, the final vote certification gave the lead to Bush by 567 votes, or less than one-hundredth of a percent.
Functionally, one of the things that the Electoral College did in 2000 was it confined the dispute to Florida. We can forever debate the outcome of that dispute – contrary to common Democratic wisdom, it isn’t clear that Gore would have won if the Supreme Court had allowed the contested recount to go forward. But there’s no denying that the dispute could have been much worse.
With the Electoral College in place, Florida was dispositive. The popular vote margin in four other states was less than half a percent, and Gore won all four of them: Iowa, New Mexico, Oregon, and Wisconsin. But their total electoral vote was 30 – had Gore won Florida, Bush would have had to win three of the other four to win the election. That result was so improbable that the Bush campaign didn’t even challenge the result in any of those four states.
Without the Electoral College, the Bush campaign would have needed to find a half-million popular votes, but it could have tried to get them in any state or combination of states. In other words, a close popular vote, without the buffer of the Electoral College, would invite court challenges to all 51 vote totals. It would invite whatever partisan is in charge of vote-counting in every state to play games with the totals. Every Katherine Harris wannabe from Alabama to Wyoming would be tempted to conjure up a few more Republican votes; and every anti-Katherine Harris from California to Wisconsin would be tempted to plump up the Democratic vote total. The resulting litigation would be a nightmare to everyone but lawyers who bill by the hour.
So I’ve come up with a different solution: keep the Electoral College, but make it more democratic.
The constitution intentionally weighted the Electoral College in favor of small states. Each state has electoral votes equal to its total number of Representatives and Senators. Representatives are assigned to states based on population, but Senators are not – California, with more than 37 million people, has the same number of Senators as Wyoming, with less than 600,000. This gives small state voters a disproportionate say in the electoral vote, violating my premise that all votes should carry equal weight.
So let’s say we kept the Electoral College, but awarded votes based on the states’ Representatives alone, not Senators. Instead of 538 electoral votes, there would be 436.
Of course this would not completely eliminate voter disproportion, because Representatives are allocated among the states by rounding off. The rounding has somewhat unexpected political effects. For instance, the most over-represented state in the House of Representatives is deep blue Rhode Island, which has two Representatives – one for every 526,000 Rhode Islanders. The most under-represented state is medium-red Montana, which has one Representative for its population of 990,000.
Still, allotting electors by counting Representatives is a lot more democratic than the current system. And using only Representatives might encourage states to award their electoral votes by Congressional district, as only Nebraska and Maine do now, instead of winner-take-all – and that would be even more democratic.
Here’s the best part: if my more democratic Electoral College had been in place in 2000, Al Gore would have won even after losing Florida. Instead of 271-266 for Bush, the electoral vote would have been 224-211 for Gore. This is because smaller states tend to go Republican, Rhode Island and Delaware (and D.C.) notwithstanding, and larger states tend to go Democratic, Texas notwithstanding. In 2012, Romney won only two states with more than 15 electoral votes – Texas (38) and Georgia (16). Obama won seven of them – California (55), Florida and New York (29 each), Illinois and Pennsylvania (20 each), Ohio (18) and Michigan (16). On average, Obama’s states (including D.C.) cast 12.3 electoral votes; Romney’s cast 8.6.
Of course, the problem with my proposal is the same as the problem with the proposal to abolish the Electoral College altogether – it almost certainly can’t win the approval of two-thirds of the Senate, or three-quarters of the states. But it’s a nice thought.