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The Electoral College: It’s Always Been Bad

[ 72 ] February 15, 2017 |


Above: Birney or Bust

An essay from a historian on how the electoral college facilitates minority rule and should be abolished.

Sixteen years earlier, the defense of majority rule was far less urgent. Not unlike those who blame Ralph Nader for Al Gore’s loss in 2000, or Jill Stein for Hillary Clinton’s loss in 2016, Lincoln blamed a third-party candidate, James G. Birney of the Liberty Party, for Henry Clay’s loss in 1844. Many Whigs, including Lincoln, complained that, by voting for Birney, the antislavery Whigs of New York had made their idea of perfect the enemy of good. James K. Polk carried the country by only 38,000 of 2.7 million votes cast. He won New York by only 5,106. If Birney’s 15,814 votes in that state had gone to the Whigs, Lincoln concluded, “Mr. Clay would now be president, Whig principles in the ascendant, and Texas not annexed; whereas by the division, all that either had at stake in the contest, was lost.”

Lincoln’s counterfactual assessment may have been flawed. In reality, it was Clay’s wavering on the Texas question that probably cost him New York. Furthermore, unlike Gore and Clinton, Clay would have lost the national popular vote (albeit narrowly) even if he had won New York, and with it the presidency—a state of affairs that seems not to have concerned Lincoln.

As a member of the House of Representatives in 1848, while maintaining that Congress best understood the popular will, Lincoln conceded that the president “is elected by them [the people], as well as congress is.” Lincoln had been a Whig candidate for presidential elector in Illinois in 1840 and 1844, and would be again in 1852. (Given that Illinois was a solidly Democratic state, he never had a chance to actually cast an electoral vote.) He was certainly aware that the framers of the Constitution had given the power to elect the president to electors chosen by the state legislatures and not to the people. Yet by 1832—sixteen years before Lincoln addressed Congress on the issue—every state but South Carolina provided for the popular election of electors, a development that created the persistent misconception, or illusion, that the American people elect their president.

Today that illusion is beginning to crumble. The Electoral College has defied the will of a plurality of American voters for the second time in only sixteen years. Despite acting as the representative of the nation as a whole, the president is elected on the same basis as Congress, with each state receiving a number of electors equal to the total number of its senators and representatives, and each (with the exception of Maine and Nebraska) holding a separate winner-take-all election to determine its preferred presidential candidate. In any election for a deliberative body (which the founders intended the Electoral College to be), a political party can win more votes overall and yet find itself a minority if the other party wins more seats but by smaller margins. For example, more Americans voted for Democratic Senate candidates than for Republican candidates in 2016; yet Republicans won 22 out of the 34 seats up for election. Thus the current workings of the Electoral College, with the division of a national election into fifty state elections (plus Washington, D.C.), transfer that potential disparity to the executive branch.

Under Lincoln, democratic government prevailed, with emancipation serving as both a means to that end as well as an end in itself. Over a century and a half later, our new president took his oath on the same Bible Lincoln used and noted that “what truly matters is not which party controls our government, but whether our government is controlled by the people.” This is a laudable sentiment. It would therefore behoove the American people to consider whether our Constitution has allowed minority rule to become too common to be admissible.

Leaving behind the fact that Lincoln was correct about Birney throwing the election to Polk, the Electoral College has always been horrible.


Comments (72)

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  1. Mike in DC says:

    Since amending the Constitution would get killed by small states and red states, the National Popular Vote initiative seems to be the only game in town. An open question whether they’ll ever muster enough states to hit 270, and whether such an arrangement would survive the inevitable court challenges.

    • Cheerfull says:

      There’s also the question of whether a deep blue (or deep red) state legislature would not, in circumstances where their electoral votes would make the difference, go ahead with electing someone who did not win the state, through some emergency legislation. Of course at that point the issue of whether an interstate compact is enforceable would be a constitutional question.

      • Dilan Esper says:

        Even aside from NPV, that’s one of the great time bombs in our system. Had the courts ruled for Gore, and the recount showed a Gore win (and Gore did win, but the recount he was requesting wasn’t the right recount), the Florida legislature could have passed a law seating Bush electors. And then we would have had a gigantic constitutional crisis.

        For ALL of my many problems with the electoral college, we are actually fortunate that so far, states have respected the results of their votes and seated the electors properly.

    • Richard Gadsden says:

      I expect NPVIC to lead to a constitutional amendment in short order, as it would allow it to be regularised.

  2. Denverite says:

    In any election for a deliberative body (which the founders intended the Electoral College to be), a political party can win more votes overall and yet find itself a minority if the other party wins more seats but by smaller margins.

    This seems like it proves too much. Isn’t this an issue with respect to any representative democracy? In a parliamentary system, one party easily could win more votes but fewer seats by concentrating its votes in the wrong places. Indeed, is there any western democracy where it’s not a potential risk? And if not, what exactly is he proposing other than the observation “here’s a drawback to western representative democracy”?

    • This is a specific problem with winner-take-all systems, not with representative democracy as a whole. Proportional representation does not have this problem.

      • Denverite says:

        Good point. How many western democracies are proportional rep and not a constituency-based system (asking for real, I don’t know)?

        • I’m not entirely sure. The U.K. and Canada are winner-take-all. I think most of the Nordic countries use some variant of PR. You can probably look it up on Wikipedia. I’d do it myself, but I don’t really have a ton of free time today.

          • numbers says:

            New Zealand and Germany are famously Mixed Member Proportional, i.e. you vote for both a personal representative and a party.

            ETA – Scotland and Wales too, but not UK

            • GCarty says:

              The southern German state of Baden-Württemberg has a variant of Mixed Member Proportional where you vote only for a personal representative, and the top-up representatives are taken from the highest-scoring losers.

          • Azza says:

            The Economist Intelligence Unit runs a Democracy Index that lists 19 full democracies. 17 of the 19 use proportional representation to elect one or both houses of their parliament. The answer is that the US is very much an outlier in using single member districts.

        • Jean-Michel says:

          Most western democracies use multi-member electoral districts for their lower houses; in this model there are still constituencies, but each one (except perhaps the very smallest) elects multiple representatives chosen proportionally, usually via the D’Hondt method. Of course there are some major exceptions, some of which have already been mentioned here. To those I’ll add France, which used a multi-member proportional system for one election in the ’80s before going back to single-member constituencies.

          • Gregor Sansa says:

            Basically, non-English-speaking countries have PR, English-speaking ones are winner-take-all. There are a number of exceptions (France, New Zealand), but we are definitely on the wrong side of this one.

            • Azza says:

              Australia is also an exception although it is the senate, not the house of representatives, that we elect by proportional representation. Each state is one PR district for the election of 6 senators every 3 years. Senators have 6 year terms.

              • GCarty says:

                In Australia, the House of Representatives is elected by instant-runoff voting (aka “Alternative Vote”) not plurality voting (aka “First Past the Post”).

                The UK had a referendum in 2011 on the issue of adopting this kind of voting in its parliamentary elections, but it was defeated 68% to 32%.

    • EliHawk says:

      ? In a parliamentary system, one party easily could win more votes but fewer seats by concentrating its votes in the wrong places.

      A while ago I wrote a paper about the County Unit System in Georgia. It was a state-level electoral college where, to win a Democratic Primary, you had to win a majority of the “Unit Votes” in the state. You got that by getting the most votes in each county, which awarded you six, four, or two depending on population of the county. (This resulted in absurd skews where Atlanta’s county, with 600K voters, had as many votes as the 3 tiniest ones combined). SCOTUS ultimately struck it down in 1962.

      What was funny though is that each side pointed to British Parliament as a justification for their opinion. Anti-Unit vote people blamed the British lack of “one person, one vote” for “British Socialists” kicking out Churchill in 1945 with less than 50% of the vote. Herman Talmadge praised the British system with kicking out “British Socialists” and bringing Churchill back even though the former got more votes. No matter where they disagreed on democracy, anything that fucked over the Labour Party was a good system in both their eyes.

      • Sev says:

        And my god they have a lot of counties in Georgia, 159. Only Texas has more at 254. They love them some sheriffs, don’t they though.

        • EliHawk says:

          They do indeed. Though when they were setting up the state, state legislators were county based: 1 for rurals, 2 for the 3 for the top 8, and 2 for the next 20 or so. State Senators were either one per county or one per three counties. So what they really loved was rural-over representation, but now it’s all sticky institutions. Nobody’s gonna bother with county consolidation, no matter how much the rural counties depopulate.

          • And it’s probably not going to change, since if it did, Democrats might start winning elections there within a few years. Can’t have that!

            • EliHawk says:

              I mean, county consolidation has next to nothing to do with winning and losing elections, but it is about Balkanization of the Atlanta metro. The most common county-related issue that comes up is North Fulton wanting to break off to go back to being Milton County (they consolidated in the Depression b/c Milton was broke.) Ever since the GOP took power 15 yrs ago, white GOP suburbanites have kept trying to make their own little tiny cities so they can keep all their taxes for themselves.

    • Just_Dropping_By says:

      Isn’t this an issue with respect to any representative democracy? In a parliamentary system, one party easily could win more votes but fewer seats by concentrating its votes in the wrong places. Indeed, is there any western democracy where it’s not a potential risk?

      This is a point that I’ve made in a number of previous threads when people complain that Democrats won X% of the vote for the House or Senate, but only received Y% (where Y is less than X) of the seats. Any electoral system without proportional representation that has representation based on geographic districts, even in the complete absence of gerrymandering, will potentially produce this result. And in nations that have geographic districts plus more effective multi-party systems than the United States does, the problem is even more acute — a party can quite easily win a majority of seats in a legislature despite winning only 35% to 40% of the total national vote. (See, e.g., the 2005 UK general elections, where Labour got 54.9% of the seats in the House of Commons while winning only 35.2% of the national vote.)

  3. Crusty says:

    There’s always been a somewhat peculiar veneration of “the framers” or the “founding fathers.” They had lots of good ideas (borrowed from a variety of sources) and put together a form of government that is probably better than most others that have been tried and has lasted for a very long time, relative to others. But they were just a bunch of people- humans. Not divinely inspired vessels sent with an unalterable plan for the ideal form of democratic rule. I suppose this is what people refer to as the great men theory or reading of history, but they were just a bunch of people who got a lot of things right, some wrong (the electoral college) and some quite obviously wrong (pay no attention to who’s out there tending the tobacco fields while we’re in here drafting these documents). It will require a cultural shift where criticism of the founding fathers isn’t met with cries of why don’t you go live in Russia for dumbass things like the electoral college to be fixed.

  4. Scott P. says:

    I think the Democrats should craft an electoral reform amendment or two and work on promoting it. It would provide a way to gain consistent publicity — as blue states begin to pass it, pressure can be brought on legislators in purple or other states. It could become part of the platform for Congressional and Presidential campaigns. It would increase the prominence of the issue, even if it never got passed.

    • Redwood Rhiadra says:

      I don’t think you understand the amendment process. States can’t vote on amendments until AFTER Congress has passed it with two-thirds majorities in both Houses.

      (The Constitutional convention option starts with the states, but they can only call for a convention, not for specific amendments.)

      The chance of any electoral reform amendment passing the House and Senate is precisely zero.

  5. VCarlson says:

    In addition to pushing the National Popular Vote idea, another way might be to get rid of the 435 cap on the EC and go back to the orig – ‘scuse me – Original “1 for every 30,000 plus two” calculation. I can see why capping the House made some sense, but the EC meets only every 4 years in the state capitals, and surely California would not object to finding space for their electors?

    ETA: But anti-gerrymandering provisions would have to be included – the GOP is already working on gerrymandering the Electors, and if enough of the do it, Mittens would have won.

  6. rm says:

    You can try to defend that crypto-Democratic WINO Henry Clay all you want, but nobody made him lose New York by failing to call out boldly for total abolition and by alienating the Never Texasers. We won’t have a real political revolution until we abandon the centrist neofederal Whig party and elect a real Liberty president. Feel the Birn!!

  7. royko says:

    Furthermore, unlike Gore and Clinton, Clay would have lost the national popular vote (albeit narrowly) even if he had won New York, and with it the presidency—a state of affairs that seems not to have concerned Lincoln.

    This is one of those issues (like federalism) where nobody is concerned about it as long as it’s their candidate who benefits from it.

    I mean, I definitely hate the Electoral College and absolutely want to see it abolished, and I stand by that regardless of who wins or loses. But if HRC had lost the popular vote but won the electoral vote, there’s no way in hell I’d want her to hand the presidency over to Trump.

    • Dilan Esper says:

      But if HRC had lost the popular vote but won the electoral vote, there’s no way in hell I’d want her to hand the presidency over to Trump.

      This is right and is one of the reasons I don’t harp so much on the popular vote.

      I hate the EC, but it is the rule, and the job of both candidates was to win an electoral majority, and they campaigned to do it. You win the electoral college, you win fair and square under our system (which needs to be changed). And yes, a Democrat could certainly win a close electoral vote while losing the EC. It can happen either way even though it is more likely to benefit the GOP.

      • one of the blue says:

        But ironically enough, every single time it’s happened the victim has been a Democrat.

        1824 – Andrew Jackson*
        1876 – Samuel Tilden
        1888 – Grover Cleveland
        2000 – Al Gore
        2016 – Hillary Clinton

        * He only founded the Democratic Party a few years later.

        • Gregor Sansa says:

          The EC was designed to over-represent states with a high population of non-voting underclass. It’s not surprising at all that it favors regressive interests even today, and yes, I’d happily take the small risk that an NPV would elect a demagogue who the EC would have rejected, in exchange for avoiding the proven fact that frequently the opposite happens with the EC.

  8. CJColucci says:

    Somewhat off-topic but related, how about adding 50 at-large seats to the Senate to be elected nationally — whether by first-past-the-post, weighted voting, or whatever — and 50 corresponding electoral college votes that go to the popular vote winner?

    • Mark Field says:

      Can’t do it. Art. V provides that no state may be deprived of its equal representation in the Senate.

      • Could still add an amendment to change that. Good luck getting one passed, though.

        • sneezehonestly says:

          Article V is the article that deals with amendments, and it prohibits any amendment that would deprive a state of its equal representation in the senate. Basically, it means that any amendment that would change the composition of the senate would have to be passed unanimously by ALL of the states. It would be easier to call a constitutional convention and replace the constitution in its entirety than to amend the current constitution to change this particular feature.

          • Huh. Wasn’t aware that any part of the Constitution required more than the normal procedure for amendment to change it. (I should really re-read the whole thing at some point.) Yeah, that’s probably all but impossible to change, then.

            • Lurking Canadian says:

              The way it’s written, a strict interpretation of the text would not prevent you from amending the Constitution so all the powers of the Senate were transferred to the brand new, third house of Congress, which had proportional representation.

              It’s pretty obviously in violation of the spirit of the thing, though.

            • Mark Field says:

              There is a fairly easy solution, and it’s perfectly Constitutional: increase the size of the House. VCarlson suggested it above, but a more realistic goal would be to increase the House to 657 (the size of Parliament — that makes it hard to argue against). This would solve 2 problems: (1) it would make the House districts more compact, meaning that urban areas would be more fairly represented; and (2) it would mean decreased impact of the two-per-state Senate in the EC.

              We just need to control all 3 branches for one term….

              A more practical amendment would be to take away the Senate’s advise and consent powers and switch them to the more democratic House described above. That’s still unlikely, but at least it’s just a “normal” amendment rather than one forbidden by the text.

          • econoclast says:

            You can just write an amendment that changes both clauses at once. Maybe the courts would intervene, but it’s not guaranteed.

          • anonymous says:

            This could be easily bypassed in a couple of ways.

            1. Create new body called “House of Lords” with more or less the same powers as the Senate but not apportioned equally.
            2. Make governors of each state the lone Senator for that State. Neuter the Senate so that it is completely powerless and ceremonial.

          • anonymous says:

            Another way is to do it in two stages.

            One amendment simply repeals the requirement for equal representation in the Senate but doesn’t actually change Senate composition. Thus it would satisfy Art V technically if not in spirit. Since this amendment didn’t actually deprive any State of equal Senate representation, it would have to be certified.

            After that amendment is passed, you pass a second amendment which changes Senate apportionment however you want. The first amendment has repealed the part of Art V concerning equal representation so it is inoperative. This follow-up amendment would then have to be certified as well.

            • Joe_JP says:

              The two amendment process to me is acceptable and reflects a method used in the UK to get around a similar ‘no amend’ type rule involving the House of Lords. Anyway, the whole Constitution arguably is problematic because the Articles of Confederation set a rule on amendment. Madison in part said the rule was nuts and shouldn’t be taken too seriously. So, I think we shouldn’t be TOO concerned here.

          • rea says:

            Wait a minute–it prohibits depriving any state of equal representation. Electing 50 at-large senators wouldn’t deprive any state of equal representation, although it would dilute the power of every senator’s vote.

            • CJColucci says:

              So I would think, but I know some people opposed Senate representation for D.C., not a state, on the grounds that it violated the equal representation clause. We’re in uncharted waters here.

      • tsam says:

        Can’t do it. Art. V provides that no state may be deprived of its equal representation in the Senate.

        Not even Florida? Boy, they really didn’t think this through, did they?

  9. anonymous says:

    The easiest solution to make electoral votes and number of representatives more fairly distributed is:

    Each states gets one representative per the population of the least populous state as determined by census.

    It’s called the Wyoming Rule

    • Lurking Canadian says:

      It’s a good start, as long as you could agree on how to round the remainder when big states aren’t integer multiples of Wyoming.

      Why do states have to be involved at all? I think if you gave me a blank sheet of paper, I’d do this:

      1) Direct election of the president in a single election. Everybody votes using instant-runoff-voting and whoever wins the popular, national vote is the president.
      2) House districts have nothing to do with state boundaries. Figure out how many people/district you want to have and carve up the entire country with one map. I confess I have no idea how to draw this map.
      3) Give each state one Senator and make the other fifty elected proportional to population. Or scrap the damned thing altogether

      • Just_Dropping_By says:

        The problem is that your changes would all require constitutional amendments or (more realistically given Article V’s restrictions on altering the composition of the Senate) an outright constitutional convention. Anonymous’ change could be done with an ordinary statute, meaning that it’s really not that implausible that it could be passed.

        • Gregor Sansa says:

          Either approval voting or 3-2-1 voting could be implemented by interstate compact, with no constitutional change. In fact, you could have a mix of states using plurality, approval, and 3-2-1 voting; each of the 3-2-1 ballots could be interpreted as an approval ballot (“OK” counts as approval iff the candidate is a finalist AND the voter didn’t rate the other finalist at “3”) and the national approval winner would get all the electors. (This becomes the same as 3-2-1 if all states are using 3-2-1 ballots).

      • numbers says:

        Yeah, the big problem is right around 1.5 times the average population per Representative. For example, the current US number is roughly 700,000 per representative. The biggest distortions are Rhode Island and Montana, one of which has only 500,000 per Rep and one at 1,000,000 per rep. If you want to minimize distortions, you want the smallest state to have 2x the multiplier, so in this case you’d need 300,000 per Rep and 1000 Reps.

        Alternately, we can try to get rid of all the states under 1,000,000 population. It’s doable for all except Alaska. So we’re still stuck at 400,000 per Rep and 800 Reps.

        • Dear Mr President: There are too many states these days. Please eliminate three.

          P.S. I am not a crackpot.

          (I could actually get on board with this suggestion, though.)

        • numbers says:

          I think we should get rid of small states. Small states are hotbeds of corruption and tax havens. No state shall have a population less than 0.4% of the US. Merge DE and MD, RI and CT, AK and WA, SD and ND, VT and NH, and divide WY up between its neighbors.

          Oh, and admit PR as a state, and retrocede Washington to MD.

      • rewenzo says:

        1) Triple the size of the House until we’re at like 1 Rep for every 200,000 or so people (this can be done via statute)

        2) For House elections, make each state an at large constituency and switch to mixed member proportional. Right now, Alabama sends 7 Representatives to the House. If you triple it, Alabama sends 21. For the election, the Alabama Democratic and Republican Parties each nominate a slate of 21 people to fill those seats. If it goes 66/33 for the Republicans, the Republicans send 14, and the Democrats send 7. (I think this can be accomplished via federal statute.)

        3) National Popular Vote for Presidential elections

      • Gregor Sansa says:

        Instant runoff (IRV) requires centralized counting or at least centralized coordination; it’s not “summable” from precinct counts. That makes it totally impractical for presidential elections.

        Better systems would be approval voting or 3-2-1 voting. Approval means you vote for as many candidates as you want and the most votes wins. 3-2-1 means you rate each candidate good, OK, or bad, and find the winner in 3 steps: 3 semifinalists with the most “good” ratings, 2 finalists with the fewest “bad” ratings, and 1 winner who comes ahead on more ballots.

        • Azza says:

          The Irish elect their president quite successfully by IRV without her collecting the votes i one place. They sum the results from pilling booth and then constituency level counts. Until 1983 Australia counted statewide STV senate elections (STV is much harder to count than IRV) without ever collecting the votes in one place. You will forgive me for saying that i’ve seen lots of Approval beats IRV arguments in my time but this is possibly the weakest I’ve seen.

          • Gregor Sansa says:

            You’re right that I overstated the case;if Lurking Canadian got their blank sheet of paper, IRV would be just as feasible as it is over in Ireland, using several rounds of ballot counting.

            But in real life, where constitutional amendments are nigh impossible, one-round summability is a serious issue. The NPV as it stands souls work with a mix of approval and plurality; with minor rewrites, it would work with 321 too; but an interstate compact for IRV is very hard to write, especially if it has to accommodate states still using plurality.

            • Azza says:

              Changing the electoral system for congress would not need a constitutional amendment. The use of first past the post rests exclusively on legislation. The most common system at the first congressional election was general ticket, where the winner of a plurality got all the seats for that state. An interstate compact cannot achieve PR for congress. The main effect of trying to enact an entry new method of voting of interstate compact would be to put an end tot he chances of passing NPV.

              Even were it not, I don’t see how you an argue that IRV has a necessary characteristic that does not actually exist and then continue to cite the nonexistent characteristic as a disadvantage.

              Changing the electoral college is a different matter. While I think NPV is a good idea it does have some problems, such as states trying to legislate the election result at the last minute and ultimately a constitutional amendment is a much better solution. I suspect that post-NPV Republicans would be much roe amenable to a constitutional than pre-NPV Republicans.

              Lastly, Approval Voting is extremely controversial even among electoral reformers and there are good reasons for that. Tying popular election to Approval isn’t necessarily very good tactics.

  10. anonymous says:

    Ultimately what the US needed and should’ve had was a Parliamentary System similar to UK.

    The founders should have just modeled the US govt like the UK and made the POTUS a ceremonial figure.

    A Parliamentary System is far superior to a President System.

    • I agree that presidential systems are garbage, but we’re stuck with ours until we can amend the constitution to get rid of it. Some of the changes proposed here, such as NPV and getting rid of first-past-the-post, wouldn’t require amendments depending on how they were implemented.

    • Joe_JP says:

      The founders should have just modeled the US govt like the UK and made the POTUS a ceremonial figure.

      It was getting there, but the king wasn’t a ceremonial figure quite yet in 1787, especially as they viewed things with a particular understanding based on experiences that went back as far as the 17th Century (the English Bill of Rights played an important part in ratifying our own, e.g.).

      The POTUS could be largely ceremonial in various ways too, just like the monarchy in theory has more power than it does. For instance, recognition of ambassadors etc. could be merely ceremonial but it is seen as given presidents broad power to recognize governments. And, the veto can be seen as mostly ceremonial too, just like back in the day Whigs thought it should only be used for clearly unconstitutional laws.

    • Azza says:

      Trust me, I have lived under a parliamentary system that was collapsing into authoritarianism and it is not the paradise you imagine. A prime minster or premier backed by a parliamentary majority has powers that a president can only dream of.

      Moreover the stats are actually pretty damning. In 1900 there 6 Westminster system in the world: Australia, Britain, Canada, New Zealand, Newfoundland, South Africa.

      In the course of the century Britain fought an actual civil war in Ireland, followed by a low intensity conflict that continued into the next century and the creation of a subcentral government in Northern Ireland that relied almost entirely on repression. Newfoundland collapsed in 1935 and petitioned Britain to resume colonial rule. South Africa degenerated into a racist and authoritarian dictatorship.

      3 out of 6 is a worrying fail rate, especially when these were all wealthy countries where political stability should be the norm.

  11. Richard Gadsden says:

    Parliamentary systems work much better with PR than with FPTP.

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