Trashing the Wrong Compact

I’m a little leery of the California compact to give its electoral college votes to the winner of the popular vote, not because of principle but because of my distrust of unilateral disarmament. Still, if this is what it takes to undermine the electoral college–and indefensible institution that (unlike, say judicial review) is an element of American constitutionalism was been highly uninfluential among other liberal democracies, for the obvious reason that it’s an irrational, anti-democratic institution–perhaps it’s worthwhile.

Pierre DuPont, conversely, tries to actually defend the electoral college itself. He starts off with a classic idiot-right talking point: “In 2000 Al Gore won 677 counties and George Bush 2,434, but Mr. Gore received more total votes.” Your point being? “Legislators,” as Justice Warren reminds us, “represent people, not trees or acres.” There’s a spurious argument about election fraud–whew, thankfully the current system prevents the possibility of a contested election decided by a lawless, hyper-partisan Supreme Court, and has been free of electoral fraud throughout its history! But really ridiculous is his claim that using a rational system would narrow the scope of the election: “Rural states like Maine, with its 740,000 votes in 2004, wouldn’t matter much compared with New York’s 7.4 million or California’s 12.4 million votes.” Pierre, I hate to tell you, but Maine doesn’t matter now, and nor do small states like Wyoming or Utah or Vermont or Mississippi, because the outcome of Presidential elections in those states is not in question. Our current system is the one that encourages a focus on a small number of states; and the salient characteristic these states have is not that they’re rural, but that they’re close–Florida gets far more attention from Presidential campaigns than Nebraska. Getting rid of the electoral college would significantly broaden electoral campaigns by making it rational for candidates to campaign in states where they can’t get a majority. It’s true that most small states will still not be the central focus of such campaigns, but their gross overrepresentation in the Senate will surely be a nice consolation.

Anyway, it’s useful to remember why conservatives actually like the electoral college: it’s indefensible, but it produces substantive results they like because it overrepresents small Southern states. Not surprisingly, since it was designed to protect the South’s peculiar institution. As Paul Fikelman says, while the issue of protecting small states “never came up” during election debates, slavery and the protection of the evil “compact” of sectional balance necessary to protect it certainly did:

How did the United States come up with such a crazy way to elect a president? The electoral college system seems to make no sense. It is quite undemocratic. The tiny states have proportionally more power then the larger states. In addition, the winner-take-all process makes voting seem meaningless in many states. As the 2000 election demonstrated, having more popular votes than your opponent does not guarantee that the candidate will win the election. This only reconfirmed what the nation learned in 1824, 1888, and probably 1800.

The system seems to be unique in the United States – applying only to the presidential election – and unique to the United States. I know of no western or industrialized democracy that uses such a system. As far as I know, the presidency is the only elected office in the United States in which the person with the most votes in the final election does not necessarily win…

[…]

This lack of discussion of slavery by scholars of the electoral college is surprising, because the records of the Convention show that in fact the connection between slavery and the college was deliberate, and very much on the minds of many delegates, including James Madison. Before turning to a more thorough examination the role of slavery in the creation of the electoral college, it is necessary to first consider the more common explanations for this system of electing presidents.

[…]

In order to guarantee that the nonvoting slaves could nevertheless influence the presidential election, Madison favored the creation of the electoral college. Hugh Williamson of North Carolina was more open about the reasons for southern opposition to a popular election of the president. He noted that under a direct election of the president, Virginia would not be able to elect her leaders president because “her slaves will have no suffrage.” The same of course would be true for the rest of the South.

The Convention quickly moved to accept the idea of an electoral college, following the lead of Ellsworth, from the North, and Madison and Williamson, from the South. This sectional balance is revealing. Ellsworth almost always voted with the South on slavery-related matters, and the agreement here seems part of the same New England-Deep South coalition that led to the Slave Trade clause. The Convention tied presidential electors to representation in Congress. By this time the Convention had already agreed to count slaves for representation under the three-fifths compromise, counting five slaves as equal to three free people in order to increase the South’s representation in Congress. Thus, in electing the president the political power southerners gained from owning slaves (although obviously not the votes of slaves) would be factored into the electoral votes of each state. Paul Finkelman, “The Proslavery Origins of the Electoral College,” 23 Cardozo L. Rev. 1145.

The electoral college cannot be defended in democratic terms. It was put in place to overrepresent the votes of property-holding white males in the south, and it continues to perform this function. The electoral college, then, is not only anti-democratic on its face but looks even worse if you use a definition of democracy that takes substantive equality or reducing illegitimate hierarchies into account. (Which is why reactionaries like it so much.) To the extent that states do what they can within the Constitution to mitigate this appalling feature of the Constitution, they’re on the side of the angels.

…a commenter notes that the California system doesn’t go into effect until enough other states do it, so the unlitareal disarmament objection is largely inoperative. Rob also notes DuPont’s claim that abolishing the college would lead to a crazy new party system, which is about as likely to happen as it is at the state level (i.e. not at all.)