The Electoral College system is a terrible system. People are defending it at the moment with bad logic and bad history. If you think I am saying this now only because of Donald Trump, you are wrong. I’ve been saying it for years. Here’s one of my better summaries of reasons why the E-College is way sub-optimal, and it’s dated 2012, when I surely wasn’t thinking about Trump.
Yes, the reason the anti-ECollege arguments are now front and center are about Trumpism or, more accurately, anti-Trumpism, or, even more accurately they are about can’t-anything-save-us-from-this-lying-groping-chiseling-race-baiting-megalomaniac cries for help.
On Sunday, the Wall Street Journal quoted Brian Westrate, a Wisconsin Republican elector who plans to vote for Trump, that he had received more than 600 letters – just in Friday’s mail –urging to dump Trump. Randy Evans, a Republican elector from Georgia who also plan to vote for Trump, said he has received about 12,000 emails and “I don’t know how many inches thick of letters just yesterday.” This is not normal. This is special for Trump and those who hope to dump him. The Journal’s reporting led it to predict that the Trump dumpers will not prevail.
Some states have laws that bind the electors to vote according to the outcome of the state’s presidential vote, although no one has ever been prosecuted for violating that law. So far, I’ve still seen only one elector, Texan Republican Christopher Suprun, who has publicly announced his intent to refuse to vote for Trump.
But the problems with the E-College are deep and permanent and, actually, getting worse. Some state laws include the power of the party to remove and replace anyone who breaks ranks. Right now (I’m writing this on Sunday), various Republicans in Republican-controlled states are scrambling to replace the lawfully chosen Republican electors in their own states — whom the Republicans themselves chose — because they are worried that enough of them to change the outcome might refuse to vote for Trump.
What happens to the final outcome even if Trump falls below 270 Electoral College-votes today is highly unclear, as I laid out last week. It is clear that if no one gets 270 votes today, the choice of the president is thrown into the U.S. House of Representatives.
Of course, neither those engaged in the effort to “steal” Trump’s victory by convincing electors to defect from voting the party line nor those who are trying to replace those electors to protect Trump’s “victory” are truly fans of the Electoral College. What’s going on now is almost entirely about Trump and/or partisanship. But it illustrates why the E-College system is such a mess, and will only become more so until we fix it — and we probably cannot fix it, at least for the foreseeable future, although it could possibly be made better. (One longshot make-it-better is at the bottom of this post.)
In the interest of open-mindedness and fair play, I should link tothis George Will column headlined “The Electoral College is an excellent system.” Will is smart and knowledgeable and I would put him in the very important category of “intellectually honest,” by which I mean he is generally unwilling to spout pure nonsense out of partisan or ideological loyalty. He’s also haughty and snotty (if those two words, which happen to rhyme, don’t mean exactly the same thing). And, in that mode, he calls those who are troubled by the two instances of the past five elections in which the popular vote loser won the presidency “those who make a fetish of simpleminded majoritarianism.” (He refers, of course, to the Bush-Gore election of 2000 and the current fandango. And he apparently thinks the idea that the one who gets the most votes should win is “simpleminded.”)
Snotty and haughty, but Will does bring up the best argument against changing the system of electing a president to simple nationwide popular vote. That argument is that if we had an incredibly close outcome in such an election, so close that a recount was justified, we would have to recount the entire nation. Think about the mess that the Florida recount was in 2000, and multiply that by 51. That is scary, and anyone who advocates a simple popular vote winner system must deal with it.
But just because you can name a problem with one of the potential reforms doesn’t make the E-College system an “excellent” one. It has many flaws, of which the possibility of the popular vote winner losing is just one of the most famous. The Electoral College system also overweights the impact of the small states relative to the large states (that’s because each state gets two “bonus” electoral votes above the number its population would justify). The E-College distorts the campaign by rendering about 40 states irrelevant, since only a relative few “swing” states are worth a campaign’s time and attention. (You can rest quite assured that the Framers weren’t thinking about how their system might affect TV ad buys in the weeks before the election. In fact, the Framers did not require states to hold popular elections at all for president, and there is still no such requirement in the Constitution. It only required each state to appoint electors, by any means it chose, and it authorized those electors to cast the most meaningful votes in the presidential election process.)
The E-College system, as evolved along with the two-party system, is among the factors that forces those Americans who prefer to vote for a minor party or an independent candidate to choose between “wasting” their vote and settling on a “lesser-of-two-evils decision.” There are ways around the problem, liked ranked-choice voting, but that is not in place in any state for presidential voting. It would be an idea worth trying.
And, when an election gets close, the cobwebs of the E-College system, as evolved, are swept aside and we are forced to consider any number of troubling, sneaky, democracy-defying outcomes including the ones we are considering now.
(You could ask yourself: If the electors have no discretion, why are they appointed, why do they have to meet, why do they have to vote? This question will lead into the history of how this contraption got invented, and how the original plan has been subverted.)
George Will, to his credit, does not (as others often do) pretend that all of this is how the Framers planned for things to go. The Framers did their framing at a time when there were no national parties, no national media, no tradition of candidates running around the country campaigning. They obviously intended the electors to have the freedom to vote for whoever they thought would make a good president – exactly the role that the “Hamilton Electors” movement is trying to make possible, although, as I said above, the effort to empower the electors in this way is not motivated primarily by a desire to fix some of the problems with the E-College.
The legal movement behind the current movement to empower the electors to exercise their own judgment is led by Harvard Law Professor Lawrence Lessig. I don’t expect it to derail Trump’s inauguration (although we’ll find that out by sundown today, unless something really weird happens).
But in the course of this effort, Lessig did write up a suggestion that (according to me) would improve the situation quite a bit. He suggested that instead of states awarding all their electoral votes to the plurality winner of the state’s popular vote, the E-Votes should be apportioned according to the percentage of popular vote the tickets received. In case that’s unclear, I’ll try to clarify:
Imagine a state with 10 electoral votes. If the Democratic ticket carried the state by a popular vote margin of 60-40 percent, the Democrat would be awarded six electoral votes, and the Republican would get four. If a strong third party got 10 percent, that party would get one electoral vote and, if the two major party nominees split the state with 50-40 percent, then the E-votes would be apportioned 5-4-1. (Lessig suggests that the new, proportional system of allocating electoral votes should ignore candidates who get less than 5 percent in a given state.)
His idea would address a few of the things that bother me about the way the E-College works now. As you know, all but two states (Maine and Nebraska) award their entire portion of E-votes to the statewide plurality winner. But winner-take-all is not in the Constitution, nor was it in the minds of the Framers.
It happens every cycle that some state goes for one of the major party tickets by a relative few votes, less than a percent or two of the total, and often without even getting a majority in that state, and yet walks away with 100 percent of the electoral votes.
The malapportionment of electoral votes (to which I referred above) by giving each state two bonus e-votes that are not reflective of their population is mandated in the Constitution, and so cannot be challenged on constitutional grounds. (It’s probably a bad idea, but it can’t be unconstitutional if it’s in the Constitution.) But, the bigger malapportionment of electoral voting is the winner-take-all bit for each state. That’s not in the Constitution, which is why Maine and Nebraska are able to adopt a different method.
Lessig suggests that the winner-take-all feature is, at least arguably, UNconstitutional on equal protection grounds and as a violation of the principle of one-person, one vote. If you torture the numbers properly, Lessig argues (building on an argument by another lawyer named Jerry Sims), it would be possible to win the presidency with just 23 percent of the total national popular vote, by winning bare pluralities in the smaller states.
That’s an extreme, unlikely scenario. But if a state is carried by Ticket A with a 55-45 margin and gets 100 percent of the electoral votes, could those 45 percent, whose votes had no effect on the real outcome as measured in E-votes, argue that they had been denied equal treatment not because of any protected constitutional provision but because of their state’s decision to adopt winner-take-all?
“What about the unfairness being felt by the millions of voters whose votes were effectively diluted, or essentially disenfranchised? Why doesn’t their harm also weigh in the balance?” Lessig asks.
Lessig understands constitutional law a lot better than I do. I have trouble believing the Supreme Court would buy his argument. I do believe that if states all moved to award electoral votes proportionally based on the vote, it would improve several of the flaws in the terrible E-College system.