10 reasons why the Electoral College is a problem

One in a series of articles. You can read the whole series here.

Sticking with the Electoral College system, but not yet plunging into the surprising too-little-discussed history of why the Framers put it in the Constitution, I want first to dash off a quick list of ten problems and potential problems with the Electoral College system:

Problem No. 1

It creates the possibility for the loser of the popular vote to win the electoral vote. This is more than a theoretical possibility. It has happened at least four times out of the 56 presidential elections, or more than 7 percent of the time, which is not such a small percentage, and it created a hideous mess every time. The most recent occurrence was 2000.

Problem No. 2

It distorts the presidential campaign, as alluded to yesterday, by incentivizing the parties to write off the more than 40 states (plus the District of Columbia) that they know they either can’t win or can’t lose. Among the states that, in recent history, don’t get campaign visits (other than for fundraising) or TV ads (which is most of what all that fundraising pays for and the main method by which the campaign and their “independent,” “uncoordinated” allies seek to persuade the persuadable voters in the persuadable states) are the three most populous states (California, Texas and New York, which among them make up more than 25 percent of the U.S. population), the geographically biggest state (Alaska) and the best state (Minnesota, which, despite missing out on the ads and the campaign visits, usually leads the nation in voter turnout anyway, so there).

Problem No. 3

The Electoral College system further distorts the presidential campaign by causing the candidates to grant extra weight to the parochial needs of the swing states. If you have to carry Florida to win, it elevates the already ever-present need candidates feel to pander to elderly voters, Cuban-Americans, orange-growers and any other group that can deliver a bloc of Floridians. The same thing with Iowa and ethanol subsidies and other agriculture-friendly policies, except even more so because Iowa is not only a swing state over recent cycles but has become since 1976 the key first state in the presidential nominating process. . (But that last bit about the nominating process, of course, is not rooted in the Constitution.)

Since the selection of Paul Ryan as Mitt Romney’s running-mate, how many stories have you read that said Ryan’s controversial plan to change Medicare could be especially costly to the ticket because so many of the swing states have above-average portions of senior voters? Pandering to large groups of voters is not a pretty aspect of democracy, but pandering to groups just because they happen to be concentrated in “swing states” is even uglier. Who can explain how this can be a good thing?

Problem No. 4

For the same reason, it distorts governance. A first-term president who expects to have a tough reelection fight (as they all at least expect to) but who wanted to establish diplomatic and trade relations with Cuba (broken in 1960) would have to consider the possibility that such a policy might cost him Florida and therefore a second term. Perhaps this helps explain why long after Washington normalized relations with the Soviet Union, China and other governments that formerly or presently call themselves Communists, Cuba remains on the do-not-call list.

Problem No. 5

The Electoral College system further distorts the one-person, one-vote principle of democracy because electoral votes are not distributed according to population. Every state gets one electoral vote for each member of its delegation to the House of Representatives (this by itself would be a rough measure of its population) and each state also gets two “bonus” electors representing its two senators.

This causes significant overrepresentation of small states in the “College.” In the most extreme case, using 2010 Census figures and the new distribution of House seats based on that census, an individual citizen in Wyoming has more than triple the weight in electoral votes as an individual in California. Yes, you read that right. In fact, it’s closer to quadruple than triple. Can this be a good thing?

If we could do nothing more than allocate the electoral votes on a population basis, it would make the system substantially more democratic. But we can’t do that, at least not without amending the Constitution, because the apportionment formula is embedded in the Constitution as one more inducements that the Framers felt was necessary to attract support of small states for ratification.

Problem No. 6

The Electoral College creates the possibility of a 269-269 tie vote, and in almost every recent election there has been a relatively credible scenario for such an outcome. (Here’s a recent CNN piece going over the ways that we could end up there this year and a Nate Silver article on the same subject.) The rules of the Electoral College system for dealing with a tie are bizarre and scary and create a fairly plausible scenario by which no one would be elected president in time for Inauguration Day.

The only tie in Electoral College history was in 1800, a totally bizarre situation, in the days before formal tickets, and back in the days when several states still did not even hold a popular vote in the presidential selection process. (The Constitution did not and still does not require that any popular vote be conducted for president.) In that 1800 election, Thomas Jefferson tied with his own running mate Aaron Burr. Better not try to cram that whole saga in here right now. It led to the 12^th amendment (ratified 1804), which changed the Framers’ original language so that each elector could indicate which candidate they supported for president and which for vice president, thereby eliminating the possibility that any presidential candidate will end up in a tie with his own running mate. But that didn’t solve the serious problems inherent in the tie scenario.

Problem No. 7

Although our system, as evolved, makes it very hard for third parties to win elections and almost impossible for a third party to win the presidency, the Electoral College system makes it quite possible for a small third-party showing in a single state or two to change the outcome of the whole national election.

This happened in 2000, when Ralph Nader, running as the Green Party nominee, finished third in the popular vote with just 2.74 percent, and received just 1.6 percent in Florida, but those votes (plus a number of other weird factors about which some people are still arguing) probably shifted the state from Democratic nominee Al Gore to Republican George W. Bush. And, because of winner-take-all, that one state also tipped the outcome of the national election.

In most recent cycles, there has been at least one halfway credible scenario under which a small third party can tip a key state and perhaps the whole election. Here’s a Fox News piece about the possibility that Libertarian Party nominee Gary Johnson could play that role in 2012. Johnson, by the way, will be on the ballot in 48 states. (According to this New York Times piece, Republican state officials in Michigan “blocked Mr. Johnson from the ballot after he filed proper paperwork three minutes after his filing deadline, and Romney campaign aides participated in unsuccessful efforts to keep him off the ballot in other states as well.)

There’s an even weirder scenario in which former Congressman Virgil Goode, the nominee of the tiny, right-wing Constitution Party, costs Mitt Romney the presidency by drawing votes in Virginia (which happens to be the state Goode represented in Congress, so he has a name there). Although the Constitution Party doesn’t even show up in national polls, when Goode’s name is included in Virginia polls this year, he has scored as much as 9 percent. I doubt he’ll get anywhere near 9, but Virginia is considered very close and has been designated a key swing state worth 13 winner-take-all electoral votes. Maybe that’s why a couple of lefty parties helped Goode get the signatures he needed to get on the ballot in Virginia.

Of course, even in a pure popular vote system (unless you have ranked choice voting) minor parties have the potential to change the outcome. But the Electoral College, paired with the winner-take-all aspect, greatly increases the leverage. I’m not predicting that any of these scenarios will come true in 2012, but the Electoral College system makes such shenanigans possible, and they happen more often that you might realize. (And by the way, if the name Virgil Goode rang a bell but you can’t place it, Goode was the congressman who made the biggest fool of himself objecting to both the election of Minnesota U.S. Rep Keith Ellison – first Muslim ever in Congress —  and to Ellison’s decision to take his oath of office on a Qu’ran. The Qu’ran, by the way, had belonged to Thomas Jefferson.)

Problem No. 8

The Electoral College system prevented Dick Cheney from becoming vice president. Well, no, it actually didn’t, but it would have if we had taken the letter and the intention behind the words in the Constitution seriously.

The Constitution says that an elector cannot vote for a presidential and vice presidential candidate both of whom come from the same state as him/herself (the elector, that is). This rule actually made sense when the Framers put it in there but stopped making sense almost immediately. (To explain this, we’ll eventually have to get to the story of how the Framers thought this contraption was going to work.) But it’s still in there. George W. Bush was a Texan. In 2000, when he became Bush’s running mate, Cheney had been living and voting and paying taxes for five years in Texas where he eked out a living as CEO of Halliburton.

If you had to say which state he “inhabited,” at that point in his life, you could not say anything other than “Texas.” This became awkward when the Bush-Cheney ticket carried Texas. The Constitution (in both the original and as changed by Amendment XII) technically prohibit the Texas electors from voting for both Bush and Cheney. And the electoral vote was so close that without the Texas votes, Cheney would not have had a majority.

It’s true that shortly before the election, Cheney obtained a Wyoming driver’s license and put his Dallas home on the market (he had a vacation home in Wyoming, which is the state he used to represent in Congress). And the courts decided that was good enough to make him a non-Texan for electoral vote purposes. It would have been silly to disqualify Cheney over this, but the issue is at least one more bizarre legacy of the Framers’ contraption and the fact that we are still (wink, wink, nod, nod) bound by the rules ratified in 1789 and 1804.

Problem No. 9

In case of a tie, or if no candidate receives a majority of all electoral votes cast for president, the choice of president is thrown in the House of Representatives but  the election is conducted on a one-state one-vote basis. (Yes, Wyoming – population 563,000 in the 2010 census — would have equal say in the selection of the president with California – 37 million.) And to win, a candidate must receive the support of an absolute majority of states.

But states that have an even number of House members may deadlock. (Minnesota, with its current delegation of four Democrats and four Republicans, would be a good candidate for this fate.) A deadlocked state cannot vote at all for a presidential candidate. But, to produce a winner, one candidate would still have to win 26 states, even though several states would presumably be deadlocked.

If no presidential candidate can get to 26, there is no constitutional mechanism for producing a winner. The vice president (whose selection in this scenario would be thrown into the Senate) could serve indefinitely as acting president. This has never happened, although it has come close. If we wait long enough, it will happen someday.

Problem No. 10

And here’s a really crazy part, which sort of underscores the craziness of our practice of abiding by the Framers’ language. When the Framers put that crazy structure, where the presidential election would be thrown from the Electoral College into the House for a one-state one-vote choice of the next president, they believed this would actually happen on a regular basis. Which is why you need to come back here tomorrow for the installment on what the Framers thought they were doing when they came up with the Electoral College system (which, as I’ve already mentioned, had pretty much nothing to do with how it has turned out).