By Dan McLaughlin
Friday, April 05, 2019
The latest enthusiasm from progressive pundits and
activists for replacing the American system of self-government is to abolish
the Electoral College and choose presidents by national popular vote. As with
all such enthusiasms — expanding the Supreme Court, abolishing the filibuster
and the Senate itself, lowering the voting age to 16, letting convicted felons
and illegal aliens vote, adding D.C. and Puerto Rico as states, automatic voter
registration, abolishing voter ID, etc. — the scarcely concealed argument is
that changing the rules will help Democrats and progressives win more.
Also as with all such enthusiasms, Democratic
presidential contenders have been unable to resist its siren song. Multiple
prominent Democratic senators, including Kirsten Gillibrand (N.Y.), Minority
Whip Dick Durbin (Ill.), and Dianne Feinstein (Calif.), the ranking Democrat on
the Judiciary Committee, are introducing a proposal this week in the Senate to
make it happen, the second such proposal by Senate Democrats this month. As
radical an idea as this is, its support in high places demands to be taken seriously.
The Electoral College has been with us since the
Founding, and in its present form since the election of 1804. Some of the
reasons for its creation may be obsolete now, and the original concept of the
electors themselves as important actors in the presidential selection process
has long since left us. But the fundamental system of electing presidents by 50
simultaneous statewide elections (plus D.C.) rather than a raw national popular
vote has long served America well. It isn’t going anywhere, and it shouldn’t.
Uniting the States
of America
What would American politics look like without the
Electoral College? Changing our current system would unsettle so many of the
assumptions and incentives that drive presidential politics that the outcomes
could easily be unpredictable. But first, consider the immediate changes.
The core function of the Electoral College is to require
presidential candidates to appeal to the voters of a sufficient number of large
and smaller states, rather than just try to run up big margins in a handful of
the biggest states, cities, or regions. Critics ignore the important value
served by having a president whose base of support is spread over a broad,
diverse array of regions of the country (even a president as polarizing as Donald
Trump won seven of the ten largest states and places as diverse as Florida,
Pennsylvania, Arizona, West Virginia, Wisconsin, North Carolina, and Texas).
In a nation as wide and varied as ours, it would be
destabilizing to have a president elected over the objections of most of the
states. Our American system as a whole
— both by design and by experience — demands the patient building of broad,
diverse political coalitions over time to effect significant change. The
presidency works together with the Senate and House to make that a necessity.
The Senate, of course, is also a target of the Electoral College’s critics, but
eliminating the equal suffrage of states requires the support of every single
state. A president elected without regard to state support is more likely to
face a dysfunctional level of opposition in the Senate.
Consider an illustrative example. Most of us, I think,
would agree that 54 percent of the vote is a pretty good benchmark for a
decisive election victory — not a landslide, but a no-questions-asked
comfortable majority. That’s bigger than Donald Trump’s victory in Texas in
2016; Trump won 18 states with 54 percent or more of the vote in 2016, Hillary
Clinton won 10 plus D.C., and the other 22 states were closer than that.
Nationally, just 16 elections since 1824 have been won by a candidate who
cleared 54 percent of the vote — the last was Ronald Reagan in 1984 — and all
of them were regarded as decisive wins at the time.
Picture a two-candidate election with 2016’s turnout. The
Republican wins 54 percent of the vote in 48 states, losing only California,
New York, and D.C. That’s a landslide victory, right? But then imagine that the
Republican nominee who managed this feat was so unpopular in California, New
York, and D.C. that he or she loses all three by a 75 percent–to–25 percent
margin. That 451–87 landslide in the Electoral College, built on eight-point
wins in 48 states, would also be a popular-vote defeat, with 50.7 percent of
the vote for the Democrat to 49.3 percent for the Republican. Out of a total of
about 137 million votes, that’s a popular-vote margin of victory of 1.95
million votes for a candidate who was decisively rejected in 48 of the 50
states.
Who should win
that election? This is not just a matter of coloring in a lot of empty red land
on a map: each of these 48 states is an independent entity that has its own
governor, legislature, laws, and courts, and sends two senators to Washington.
The whole idea of a country called the United
States is that those individual communities are supposed to matter.
This scenario is extreme, but the problem is not: elections
where some places are overwhelmingly for or against a candidate while the rest
of the country is competitive. The most extreme example happened in 1860:
Abraham Lincoln won 18 of the 33 states (all the free states except New
Jersey), giving him 59 percent of the Electoral College. Across the states he
won, Lincoln got 54 percent of the popular vote, just as in our example above.
In the two states that gave electoral votes to Stephen Douglas (New Jersey,
which split its votes between Lincoln and Douglas, and Missouri), however,
Lincoln won just 26 percent, and he was not even on the ballot elsewhere: He
got just 0.9 percent in the eleven states carried by Vice President John
Breckinridge and 0.7 percent in the three states carried by John Bell.
Lincoln won a popular plurality with just under 40
percent of the vote, and it is true that 1860 is a unique case. But the point
is that the Electoral College works against a united regional minority, such as
the antebellum South, that seeks to impose its will on the majority regions of
the country simply by virtue of superior unity.
In the case of the South, that unity persisted long after
the Civil War. Well into the 20th century, in elections still within living
memory, states in the “Solid South” voted in far greater lockstep than
elsewhere. Democrats won Mississippi, for example, with over 82 percent of the
vote in every election from 1892 to 1944, clearing 90 percent eight times.
Franklin D. Roosevelt won the eleven states of the old Confederacy with 81 percent
of the vote in 1932 and 1936, 78 percent in 1940, and 72 percent in 1944. But
94 percent of the vote in Mississippi and 81 percent in Alabama counted no more
than Tom Dewey’s winning 50–49 in Ohio and Wisconsin in 1944, or Wendell
Willkie carrying Michigan by three-tenths of a point in 1940. That’s a good
thing if you think a single, radicalized region of the country shouldn’t be
given disproportionate power in choosing a national leader.
One of the reasons we are having this argument right now
is that more than 13 percent of Hillary’s voters lived in a single state,
California — the highest proportion for any candidate since Dewey in his home
state (New York, then the nation’s most populous) in 1944, and higher than any
winning candidate since 1868, when only 34 states voted (a few ex-Confederate
states were still not allowed to participate). Hillary’s 4.2-million-vote
margin in California more than accounted for her 2.9-million-vote plurality
nationally. That one-party unity in the largest state, out of step with the
rest of America, explains more about the popular/electoral vote split than the
small states do. In the smallest states (those with 5 or fewer electoral votes,
including D.C.), Trump got 30 electoral votes to Hillary’s 29. The real Democratic
grievance is not that small states get a voice, but that big, closely divided
states such as Florida, North Carolina, and Ohio get a say instead of being
swamped by a few big outliers.
Making It Work
That’s just how the vote tallies matter. But of course,
replacing the Electoral College would change how votes are courted and how they
are tabulated.
The immediate question is what happens when no candidate
gets a majority of the national
popular vote (i.e., more than 50 percent). Senator Jeff Merkley (D., Ore.), the
author of one proposal, ducks the issue, claiming incorrectly that “we have now
seen two elections where the majority of voters supported a candidate who did
not become the President.” The proposed constitutional amendment authored by
Senator Brian Schatz (D., Hawaii) and joined by Gillibrand, Durbin, and
Feinstein states: “The pair of candidates having the greatest number of votes
for President and Vice President shall be elected.”
In 49 elections since 1824, the voters have returned a
popular-vote majority 31 times. Those elections have not been the problem: In
only one of them (1876) did an arguable winner of a majority fail to win the
Electoral College. I say “arguable” because Democratic New York governor Samuel
Tilden’s 1876 race against Republican Ohio governor Rutherford B. Hayes was
marred by force and fraud throughout the South that left many of the vote
tallies in question, and one state won by Hayes (Colorado) held no popular vote
at all because it had been admitted to the Union that year and was not ready
for a statewide election.
In the other 18 elections, an Electoral College majority
went to the winner of a plurality of
the national popular vote 14 times. Those winners, all below 50 percent of the
popular vote, include the first election of some very big names in American
history: Lincoln, John F. Kennedy, Harry Truman, James K. Polk, Richard Nixon.
Three Democrats won the presidency twice without ever winning a popular
majority: Bill Clinton, Woodrow Wilson, and Grover Cleveland. Several of those
winners fell far short of a majority, usually when there was a strong third-party
candidate: 39.7 percent for Lincoln in 1860, 41.8 percent for Wilson in 1912,
43.4 percent for Nixon in 1968, 43.0 percent for Clinton in 1992. Yet the system
legitimized them as the victors.
The Constitution currently provides that if no candidate wins
a majority of the Electoral College, the president is chosen by the House of
Representatives, with one vote per state. The one time that happened under the current
voting system, in 1824, was a fiasco: the popular-vote winner (though in some
states there was no popular vote), Andrew Jackson, was shut out when the
third-place finisher, House speaker Henry Clay, threw his support to John
Quincy Adams and was rewarded by becoming Adams’s secretary of state (then
considered a stepping-stone to the presidency). That sort of deal is completely
routine in parliamentary systems, but the American people rebelled and in 1828
chose Jackson by a clear majority after four years of a hobbled presidency. If
the House were to choose presidents by the same method when there is no popular
majority, George W. Bush and Donald Trump would still have won their elections,
since the Republicans controlled of a majority of House caucuses at the time of
each election. But the Democrats are proposing a system in which the president
needs to win neither a popular
majority nor a majority of the
states. The Schatz amendment’s only fallback provision is that Congress can
provide for resolving a popular vote tie.
If we think of the Electoral College as a way of ensuring
a decisive result in the absence of a national popular majority, and election
by the House as the fallback only when both of those options fail, it makes a
lot more sense. Splits between the popular vote and Electoral College winners
will practically always be very rare when one candidate gets a popular
majority; 1876 aside, those splits have only happened when neither candidate
mustered a majority. Hillary Clinton won 48 percent of the vote; had she won
another 2.7 million votes away from Trump and the third-party candidates to get
to 50 percent, the odds are good that she would have won the election. The
combined margin of her defeats in the eight closest states — Michigan, Wisconsin,
Pennsylvania, Florida, Arizona, Iowa, North Carolina, and Georgia — was just
813,700 votes.
Assuming that “national popular vote” means that even a
plurality will do, what happens if the national popular vote is really close?
We’ve had four elections (1880, 1884, 1960, and 1968) in which the popular-vote
margin was less than a percentage point but the clear Electoral College outcome
made it academic to reexamine the national vote totals. National Review’s editorial defending the Electoral College neatly
summarizes the practical problems that would come swiftly to the fore:
Under the current system, the
result of presidential elections tends to be clear almost immediately — there
is no need, for example, to wait three weeks for California to process its
ballots; it is nigh-on impossible for voters to return a tie or disputed
outcome; and, because presidential elections are, in effect, fifty-one separate
elections, accusations of voting fraud and abuse hold less purchase than they
would if all franchisees were melted into a single, homogeneous blob. The freak
occurrence that was Bush v. Gore is
often raised as an objection against the status quo. Less attention is paid to
the obvious question: What if that recount had been national?
All the various controversies over voting — who’s
eligible, how do we check eligibility, how are votes counted and recounted, how
quickly are they tabulated, what paper trail is created — have the advantage of
being contained today within individual states, so that the states where
election systems are dominated by one party can’t do more in a presidential
race than deliver their own state. The diversity of state electoral systems and
eligibility rules was a concern all the way back to the creation of the
Electoral College in 1787, and overhauling the system would also create immense pressure to
nationalize those systems, at the cost of much expense and controversy. That,
too, is what progressives aim for: the Schatz amendment introduces a new rule
that ties the right to vote in presidential elections to state requirements for
voting for the state legislature, and federalizes in a stroke many aspects of
election management: “The times, places, and manner of holding such elections
and entitlement to inclusion on the ballot shall be determined by Congress.”
There is no reason to think this would be worth the effort just to deal with
the four cases in 231 years when a popular-vote plurality loser won an
Electoral College majority.
Moreover, the Schatz amendment also grants de facto backdoor statehood to Puerto
Rico and other territories for purposes of voting in presidential elections:
“The President and Vice President shall be elected by the people of the several
States, the territories, and the district constituting the seat of government
of the United States.” This is entirely unprecedented, and would fundamentally
alter the nature of territorial status as it has existed since 1787.
In fact, moving to a national popular vote could spell
the end of popular-majority presidents. The 50-state system is a barrier to
entry for third-party candidates with niche appeal, but a national popular-vote
system could create quite different incentives.
Michael Brendan Dougherty has elaborated on the destabilizing effect
that Electoral College reform, especially combined with other proposals, could
have on our existing two-party system. While some may view this as a good thing
— everyone has their favorite grievances with the co-opting and polarizing
two-party system — parliamentary systems with a profusion of parties tend to
have a lot more parties that are openly extremist on the far right and far
left. Allen Guelzo notes, more broadly, how the case against the Electoral
College tends to ignore the experiences of other nations:
The German federal republic, for
instance, is composed (like ours) of states that existed as independent
entities long before their unification as a German nation, and whose histories
as such have created an electoral system that makes our “antiquated” Electoral College
look like a model of efficiency. In the German system, voters in 299 electoral
districts each cast two votes in elections for the Bundestag (Germany’s
parliament): the first for a directly elected member and the second for one of
34 approved parties (in 2017), whose caucuses then identify candidates. A
federal president (Bundespräsident) is elected every five years by a federal
convention that reflects the party majorities in the Bundestag and the state parliaments
of the 16 German states. Finally, the federal president proposes the name of
the de facto head of state, the chancellor (Bundeskanzler) to the Bundestag. By
contrast, the Electoral College is remarkably straightforward.
As Jonah Goldberg observes, “no Western European country
has a unified leader directly elected by the people.” Jonah continues:
As Elaine Kamarck of the Brookings
Institution has observed, America is the only advanced democracy that has
decided to strip its political parties of the power to select their own
candidates. Until 1972 — through conventions, smoke-filled rooms, etc. — the
parties, not the voters, determined who their presidential candidates would be.
This function is among the informal checks and balances that make democracy
workable around the globe; we scrapped it in favor of ever more open primaries.
The primary system in both parties today is still a
state-by state system, and in the Democratic party it yielded a winner in 2008
(Barack Obama) who had not received the most votes nationally in the primaries,
but went on to win a popular majority in the general election. It also answers
a common argument that the Electoral College causes a lot of places to be
ignored: The primary process still gives many of these same voters a big voice.
Northeastern blue-state Republicans played a pivotal role in nominating Trump;
rural red-state African-American southerners played a decisive role in
nominating Obama.
Expand the House
Finally, there is a solution available (admittedly, one
with broad-reaching effects of its own) that would reduce the incidence of
popular-vote/Electoral College splits without requiring a constitutional
amendment and without doing violence to two centuries of American practice or
eliminating the role of the states. That solution is to expand the size of the
House of Representatives.
The House began with 65 members, but the Founding Fathers
expected that it would expand over time, with the addition of new states and
the growth of population. The first census increased the total to 99, and the
House grew steadily until it was frozen at 435 members in 1911. The
Constitution puts a minimum size on House districts (30,000 people), but today
the average district is more than 20 times that, exceeding 700,000 people per
district.
That matters to the Electoral College because every state
gets one electoral vote per House district, plus two for its two senators. In
the early 1800s, it was common for only the newest state to have just three
electoral votes, but today there are seven such states, plus D.C. Doubling the
size of the House to 870 members would instantly increase all the states (but
not D.C.) to a minimum of four electoral votes and would cut the “extra”
electoral votes (those corresponding to Senators) almost in half, from 19
percent of the Electoral College to 10 percent. Based on the Census Bureau’s
2018 population estimates, doubling the House would, without any other changes,
raise the four largest states from 28.4 percent to 30.6 percent of the
Electoral College, while reducing the 15 smallest states and D.C. from 10.6
percent to 8.8 percent. That’s a fairer way of rebalancing the Electoral
College without depriving the small states of a voice.
Expanding the House would affect many other things
besides the Electoral College, of course: seniority, campaign finances,
gerrymandering, even the physical capacity of the Capitol. So this is a remedy
that shouldn’t be approached without serious thought for its other
consequences. Moreover, the chief obstacle to doing so is that the people most
opposed are the current members of the House. But if Democrats are serious
about a realistic movement to improve the presidential election system, rather
than just venting their anger at the fact that they have won a popular-vote
majority only twice since 1976, they could use their new House majority to push
for expanding the chamber in time for the drawing of new districts in 2022 and
the presidential election of 2024.
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