November 26, 2016

Keep The Electoral College

by Hal Gershowitz

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Of Thee I Sing Heading AuthorsHere we go again.

Once again, our unique system of electing a president is under attack as an antiquated, unfair anachronism, unjustifiable in our modern age. A growing number of Americans believe that the Electoral College should be abolished and that a national popular vote should replace our 230-year-old system of electing our President. We beg to differ.

The constitutional provision establishing an Electoral College (Article II. Section 1.) can, of course, be revisited by amending the constitution. Indeed, our governing document has been amended 27 times (including the Bill of Rights) in the past 230 years, including the twelfth amendment, which consolidated, within the College, the voting for President and Vice President into one ballot to avoid a reoccurrence of contests between President and Vice President.

There has been a movement to gut the Electoral College called the National Popular Vote Compact, which would require that all states adopting the Compact mandate their electors to cast their ballots in favor of whoever won the national popular vote— even if that vote conflicted with the outcome of the vote in the electors’ own state. We, and many others, see this movement as an attempt to emasculate the intent of the framers without going through the bother of an arduous amendment process, which could, of course, never succeed.

Theoretically, the National Popular Vote Compact would not have to be adopted by every state in order to change the way we have conducted elections since the founding of the country. The Compact would, theoretically, become effective as soon as enough states joined which, together, commanded a total of 270 electoral votes (the number required to win the presidential election.

We think such tampering with the Electoral College would result in even greater divisiveness than currently exists in the country. More on that later. Right now, let’s review precisely what the Electoral College is…and what it isn’t.  The Electoral College is not a physical place like a school.  It is simply a group of elected individuals in each state organized by the constitution to achieve a singular common goal – to express (by casting their ballots) the will of their respective states.  Each of our states does, in fact, conduct a popular, winner-take-all election. The number of each state’s electors (in the Electoral College) is equal to the number of representatives and senators each state has in the US Congress, so every state is represented in the nation’s Electoral College in a manner reasonably proportionate to its population. That is what makes every electoral vote so important, especially in close elections. In a very close election, small states with only two or three or four electoral votes can decide who becomes president. Thus, it is very consistent with our federalist system. It makes it impossible for two or three very densly-populated geographical regions to totally control a presidential election. Every state has someone at the table in the Electoral College. So why are some people so opposed to the Electoral College? Primarily, because (at first blush) a system in which whoever gets the most popular votes wins, seems very fair and very appealing.

So what’s wrong with that? Well, for one thing, it would pit regions with high population densities against less populated regions assuring that the big population centers could, essentially, dictate who occupies the White House. That is, to some extent, as true today as it was at the founding when the United States of America consisted of only four million men and women in 13 states spread along 1,000 miles of the east coast with the bulk of the population residing in four states — Massachusetts, New York, Pennsylvania and Virginia. The creation of the Electoral College was essential to persuading the other nine less populated states to join the union.

Even today, with a population of 320 million, 52% of Americans live in coastal counties and 40% live directly on the shoreline of the United States. That means about half the country lives in the immense 3,000-mile divide between the coasts.  Of the nation’s 3,144 counties, only 22% (691) are coastal with the remaining 78% located inland.  While Clinton won the popular vote, she lost in over 3000 of the nations 3144 counties. That’s why the electoral map is so red, even though Clinton won in areas with heavy population densities. Our federalist system was created to assure that every state was, politically, important.

The Electoral College also  makes it very difficult for fringe party candidates to win a national election by cobbling together pockets of votes in many states that could add up to a majority without carrying any single state.  The way our Electoral College works, if a candidate doesn’t carry a state, he or she isn’t entitled to any of that state’s electoral votes. We like that a lot! (Nebraska and Maine are exceptions in which electoral votes are apportioned by congressional district).

While the founders changed history by meticulously constructing the world’s first constitutional democracy, they never lost sight, or fear, of the potential tyranny of the majority.  They constructed a number of safeguards to give every state, large or small, a place at the proverbial table. Every state, large or small, having two Senators is one such example.  The Electoral College is another.

Twice in fairly recent history, fringe candidates were able to accumulate an impressive number of votes (here and there) without carrying a single state.  Consequently, they received no electoral votes. For example, Ross Perot, in 1992, ran as a third party candidate and cobbled together nearly 20 million votes, but he failed to carry a single state and, therefore, was awarded no electoral votes.  John Anderson of Illinois ran for President as an Independent in 1980 and won nearly 7 million votes.  He, too, failed to carry a single state and was relegated to obscurity, winning no votes in the Electoral College. Gary Johnson and Jill Stein, combined, won millions of votes scattered throughout the country , but no electoral votes.

The Electoral College has stood the test of time, and has served the nation well. Let us, however, acknowledge that the Electoral College represents an imperfect process that has, on five occasions following very close elections, resulted in the elections of Presidents who had not won a national majority of the votes cast. They would be George Bush (43), Benjamin Harrison and Rutherford Hayes.  John Quincy Adams also won the presidency when the election was thrown into the House of Representatives after neither he nor Andrew Jackson received the necessary number of electoral votes to ascend to the Presidency.  The House gave the nod to Adams. And, of course, we now have Donald Trump with a plurality of 74 electoral votes and a deficit of two million popular votes.

Nonetheless, the correlation, over time, between the popular vote and the Electoral College vote remains extremely strong notwithstanding the 2016 election. Three interesting research papers co-authored by Andrew Gelman, Professor of Statistics at Columbia University, along with other prominent statisticians, demonstrate that whoever wins 51% of the popular vote has a 95% statistical probability of winning the Electoral College.

Both large states and small states can, depending on the circumstances, be the beneficiaries of the Electoral College system.   In a close election, there are many small states whose three or four electoral votes could carry the day for a candidate.

On the other hand, the prevailing winner-take-all (electoral votes) system, of course, favors the large states.  For example, no matter how tiny the margin of victory in California, the state awards all 55 of its electoral votes to the winner. That represents more electoral votes than the 15 smallest states combined. The Electoral College can provide (in very close elections) an ever-so-slight tilt making the outcome in an individual state critically important, and the federalist oriented founders would, unquestionably, have been very comfortable with that. We are too.

In our unique presidential voting system the Electoral College does help assure that large voting blocks do not necessarily dictate the outcome of our Presidential elections and that is what the founders intended and, in our opinion, that is a good thing.

If ever the national will is to amend the constitution and do away with the Electoral College so be it.  But there are those who want to do away with the Electoral College and who have devised an alternate scheme for accomplishing that. Here’s how. The US Constitution allows each state to decide how to apportion its electoral votes. In 48 of the 50 states all of the electoral votes in each state are awarded to the winner of the popular vote in each particular state (winner takes all). Two states, Nebraska (5 electoral votes) and Maine (4 electoral votes) allocate their electoral votes taking into consideration how the vote went in each state’s respective congressional districts.

The so-called National Popular Vote Compact movement would establish a Compact wherein every state that adopts the Compact agrees to allocate all of its electoral votes to whoever wins the national popular vote, even if that candidate does not carry the particular member state.  In other words, if a candidate who won the national popular vote got clobbered in any states that had joined the Compact, those states would still be compelled to award all of their electoral votes to that candidate.

Ironically, those who are pushing this corruption of the Constitution will succeed if they can secure the passage of the Compact in any combination of states that, collectively, have 270 electoral votes (the number of electoral votes needed to win a national Presidential election).  Those who are promoting the so-called Compact are using the language in the constitution that delegates to the states the determination of how to apportion their electoral votes to make the case that the electors can be required to cast their votes in support of a candidate that didn’t even carry their state. This political slight of hand negates and undermines the process of election designated by the Constitution. The Constitution most certainly intended that electoral votes cast in each state reflect the vote outcome in each state.

How far fetched is it that such a bastardization of the framers’ intent could ever become reality?  As of this week, eleven of the most liberal states in the nation have legislated in favor of the Compact. Together they account for 165 of the needed 270 votes necessary to do away with the framers’ intent.  Legislation supporting the Compact is pending in six other states. We expect to see this debate rekindled in the aftermath of this presidential election. We believe, however, that the Founders, once again, had it right. The effort will fail–as it should.

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2 responses to “Keep The Electoral College”

  1. Dave Hanna says:

    A very enjoyable article, as always. Perhaps the Compact movement will fail as you suggezt. However, I am not so certain the Framers of the Constitution were unaware of the door they left open for such an attempt as is now being brought forward.
    Perhaps this is an area where there was not concensus and the agreement was to start with the Electoral college and leave a different path to the future country if was so chosen.
    “Loopholes* are not the norm in this document and it is hard for this citizen to believe the Framers were not aware of a change being propposed by a future generation.

  2. Bob borns says:

    A beautifully researched and thought out commentary.

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