1315 Files Available
A Stefan Bauschard Website
You are here:    Home      Newsletter      The Case for the Electoral College

The Case for the Electoral College

November 25, 2016
Published in Newsletter

[The case against the electoral collegeBibliography]

Icon of Electoral College Good Bad (11-26-2016) Electoral College Good Bad (11-26-2016) -- Subscribers Only (787.0 KiB)

Introduction

It appears that Hillary Clinton will win the popular vote by more than 2 million total votes, but she still lost the election to Donald Trump. This is the fifth time in history that the candidate winning the popular vote lost the election. This last happened in 2000, with Al Gore winning the popular vote but losing the election.

How did this happen?

It happened because we have an electoral college system that awards a certain number of electors from each state to the winner of the popular vote in that particular state. Based on the total number of electors representing particular states, Trump is the President-Elect of the United States.

Some, especially Clinton supporters, consider this to be a tragedy. Why should the winner of the popular vote lose?

The Washington Redskins might ask a similar question. After all, today they lost to the Dallas Cowboys 31-26, but they had more total offense than the Dallas Cowboys (505 yards v. 358 yards). Why should the team that has fewer total yards win?

The answer to both questions is the same – Because the victor won the game that was being played based on the predetermined criteria for selecting the winner.

If the total vote determined the outcome of the election, both Trump and Clinton would have campaigned quite differently. They both would have spent a ton of time in Texas and California (Hillary may even have moved to California years ago). They may have highlighted different issues or taken different stands on different issues. They certainly would have advertised and marketed quite differently.

Emily Shulteis from CBS News explained on November 24th (No More Electoral College? Here’s How Campaigning Might Change, http://www.cbsnews.com/news/no-more-electoral-college-heres-how-campaigning-might-change/)

But for the sake of argument, what would an Electoral College-less presidential election really look like?

There would be upsides and downsides to such a system — for proponents and opponents alike, it’s hard to deny that the way a campaign conceives of its strategy and tactics would be drastically different.

Instead of a small number of national battleground states in which the candidates focus the majority of their attention, they would instead go to where their votes are — even if those votes are in a deeply Democratic- or Republican-leaning state.

For Democrats, that would mean mining the urban centers they already depend on, but expanding those efforts even more to solidly Democratic states like California and New York. Out of Clinton’s approximately 64 million votes nationally, more than 7.5 million came from California alone. And Republicans would focus where their largest numbers of votes are: in some deeply GOP counties around the country, and likely on suburban areas where they’ve done well in the past.

“You would probably have legitimate field offices in Los Angeles, New York, Miami, San Francisco,” said Michael Trujillo, a Los Angeles-based Democratic strategist. “You would basically be doing base turnout, and Republicans would be doing base turnout in Texas and the Deep South.”

In order to reach more voters across the country, candidates would likely turn to more national television advertising — instead of what campaigns do now, which is essentially flood the airwaves in a small number of states and media markets.

You’re going to see more of what I called national TV ads, as opposed to buying the Dayton, Ohio, market out,” Trujillo said. “So you would have seen more of the campaigns’ ads during the baseball playoffs … it would have been less newsworthy and more sort of the way campaigns would have been run.”

On the flip side, smaller states that currently get a lot of attention might see candidates start to make themselves scarce. Mr. Trump spent part or all of 43 days in Iowa during the course of the 2016 campaign, for example, and Clinton spent 49 days there. If the campaigns were focused on solely the popular vote, Iowa’s approximately 3 million residents would see far less of the candidates after the primaries were over.

Similarly, if the goal was to just see who could get more yards, I don’t think either football team would have ever punted on fourth down.

So, just like we can’t say that if the goal was simply to get more yards that the Redskins would have won, we can’t say that if the goal was to win the popular vote that Hillary would have won. She may have won. She may have won by more than 2 million votes. She also may have lost by 5 million votes.

Donald Trump agrees 🙂

screen-shot-2016-11-25-at-5-49-46-pm

Some scholars draw a baseball analogy –

Michael Herz, law professor and Co-Director, Floersheimer Center for Constitutional Democracy, Cardozo, Cardozo Law Review, May 2005, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION?: ROBERT DAHL’S HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION?: AN INTRODUCTION, WITH NOTES ON THE ELECTORAL COLLEGE, p. 1195-6

The World Series analogy should diminish concern over the winner of the popular vote not becoming President in a second way as well. Everyone understands and accepts that when a game is set up according to certain rules, the players act strategically in light of those rules. A manager who is trying to win the most games will adopt different strategies than a manager trying to score the most runs – a sacrifice bunt or a defensive replacement in the late innings of a close game makes sense if it is important to win games, but does not if all that matters is total runs. It is impossible to look at the results of a contest played under one set of rules and know what would have happened under a different set of rules, because the game would not have been played the same way. Applied to the presidential elections, the point is that we do not know who would have won the most total votes if total votes were what the candidates were trying to maximize. Invoking the World Series (of course), John McGinnis makes this point: The popular vote result has no electoral meaning because the candidates were not in a contest for the popular vote. If they had been seeking the highest popular vote, they would have campaigned entirely differently. George Bush would have campaigned more in Texas to run up his vote and Al Gore would have campaigned more in California. Both would have campaigned more in urban areas because it is easier to turn out the vote there. They would have run their television advertisements in different places and perhaps even run different advertisements altogether. Given the less than four tenths of a percentage point difference between Bush and Gore, we cannot be certain who would have won the popular vote… . Accordingly, it is not entirely coherent to label those instances in which the college winner loses the popular vote as “misfirings” of the electoral college.   Speaking before the 2000 election, and anticipating a possible Gore victory in the electoral college and loss of the popular vote, Walter Dellinger made precisely the same argument in rejecting the claim that such an outcome would undermine the winner’s legitimacy: “There’s no real legitimacy argument. If the presidency was decided by the popular vote, the two candidates would have run different races. We simply don’t know who would have won.” This is inescapably true, at least for a relatively close election such as that of 2000 (or 1888 or 1876). This is not to say that the campaign incentives that the electoral college creates are the right ones. But the system creates certain incentives, and given those incentives we cannot know what the outcome would have been under a different set of rules; therefore the inconsistency between electoral and popular vote outcomes should bother us less than it otherwise would. The analogy to the World Series is useful because it helps make all this clear by invoking a setting where exactly the same dynamic operates and is understood and accepted.

Of course, this just explains why it’s sort of ridiculous to claim at this point that Hillary should be President because she won the popular vote.

Should we keep the electoral college for future elections or should we abolish it? Senator Barbara Boxer from California recently submitted a bill to abolish it, though it is unlikely to go anywhere. She’s submitted these bills in the past and Congress has ignored them, plus, since three quarters of the states would have to ratify any legislation since it involves changes to the Constitution, this is unlikely.

Regardless, it’s an interesting discussion. In this essay I’ll identify and defend the arguments in favor of the EC. In a future essay, I will argue for its abolition.

The benefits of the Electoral College (EC)

There are many benefits to the electoral college.

Representation. The EC ensures that the President represents the interests of all fifty states, not just the majority of voters, particularly if that majority is not reflected across all states.

Joy McAfee, law professor, Cumberland Law Review, 2001 / 2002, SHOULD THE COLLEGE ELECTORS FINALLY GRADUATE?: THE ELECTORAL COLLEGE: AN AMERICAN COMPROMISE FROM ITS INCEPTION TO ELECTION 2000, p. 671-2

The Electoral College gives the United States a President to represent all the fifty states. America elects a federal President, not a national President. A federal President is responsive to all states because his or her election depends upon their very voice. Citizens live in the states, vote in the states, and voices are channeled through the states. Citizens combine through local governments to federal governments to create laws and elect representatives to the federal and state governments. Organization through state representation is key to making the republic democratic.

For example, look at the  map of where Hillary won (blue). If only the popular vote mattered, she could focus only on the interests of voters from those areas. The EC at least pushes her to expand to a greater plurality of areas.

screen-shot-2016-11-25-at-9-39-01-pm

 

William Sullivan explained on November 25th:

But I won’t beat that dead horse.  There is ample reading material to inform interested parties about the wisdom of the Electoral College, in contrast to a strictly popular vote where highly-populated urban strongholds located in a minority of states might disenfranchise the will of the large majority of other states in presidential elections.

Many of these voters are the ones living in “flyover states” that candidates could otherwise just ignore

Danny Bordelon, November 25, 2016, Electoral College protects “flyover states.” http://www.thetowntalk.com/story/opinion/2016/11/25/mail-electoral-college-protects-flyover-states/94363878/

Contrary to Mr. Robinson’s opinion, the Electoral College was a stroke of genius by the Founding Fathers because it guarded against a president being elected from only big population centers. Places like New York, Chicago, Los Angeles and all the other big population centers would constantly have the power to select the president. The Electoral College allows the voters to be represented from rural and suburban areas, including states like “little ol’ Luzianna,” and not just metropolitan areas.

Also, there is some irony involved in the Left’s wish to eliminate the Electoral College. Republican voters in New York and California realize that their vote won’t count in these highly Democrat states, and don’t vote period. If the popular vote was the deciding factor, Clinton would not have won the popular vote. Trump and Clinton spent very little time in those two states but for different reasons. Trump knew that New York and California were blue states and Clinton knew that she would carry them. So, in reality, neither presidential candidate set out to get the popular vote. Both candidates went to the battleground states where the middle class sustained the most severe effects of liberal policy under President Barack Obama.

When you do away with the Electoral College, you’re doing away with the notion that the president is accountable to all people. The real travesty, Mr. Robinson, is that you favor major metropolitan areas in the Northeast and the “Left coast” to elect the president while the rest of us in “flyover country” would be ignored.

Some refer to the idea that certain states/areas would be ignored as the “tyranny of the majority.”

Richard Moore, November 24, 2016, In defense of the electoral college, http://www.lakelandtimes.com/main.asp?SectionID=10&SubSectionID=10&ArticleID=32721

More important, the Electoral College is preventing us from having a tyranny of the majority. If our elections were decided by a direct majority, California and New York could elect a president allegiant to their interests and agendas almost every time. Consider that, as of this week, according to an analysis by FITS News, Clinton had won 7,390,981 votes in California to Trump’s 3,920,942 – about twice the margin of Clinton’s national 1.7-million vote lead. Meaning, of course, that Trump won the popular vote election in the other 49 states and District of Columbia. We wouldn’t count just 49 states, to be sure, but would it really be such a great system to allow one state to effectively choose our president every election, especially when it nullified the choice of the rest of the country? That’s what’s called the tyranny of the majority.

When presidential candidates have to pay attention to all states it reduces the risk of regional conflict and brutal violence.

Barry Fagin is senior fellow at the Independence Institute, a free market think tank in Denver, November 24, 2016, Greely Tribune, Electoral College a Check on Majority Rule, http://www.greeleytribune.com/news/opinion/fagin-electoral-college-a-check-on-tyranny-of-majority-rule/#

The Electoral College also makes sure that presidential candidates don’t spend all their time in the most populated areas of the country. Sure, Democrats might prefer that because they tend to do better in urban settings. But how much of a part of the election would you feel if you lived in rural Kansas and candidates spent all their time in California and New York? Would you even bother voting?

Minority rights. By rewarding all the votes of small states to a particular candidate, it means that small majorities have the impact of large majorities.

Daniel H. Lowenstein, law professor, UCLA, Northwestern, 2007, University of Pennsylvania Pennumbra, Debate: Should We Dispense with the Electoral College?, p. 22

The Electoral College turns the many winners who fail to win a majority of the popular vote into majority winners. It also magnifies small majorities in the popular vote into large majorities. These effects of the Electoral College enhance Americans’ confidence in the outcome of the election and thereby enhance the new president’s ability to lead. Professor McGinnis addresses this point effectively, so I shall not elaborate further.

And if it was just one person, one vote, candidates would be encouraged to ignore the interests of minorities.

Michael Herz, law professor and Co-Director, Floersheimer Center for Constitutional Democracy, Cardozo, Cardozo Law Review, May 2005, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION?: ROBERT DAHL’S HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION?: AN INTRODUCTION, WITH NOTES ON THE ELECTORAL COLLEGE,

n49. See, e.g., 1992 Senate Hearings, supra note 13, at 129 (prepared testimony of Curtis B. Gans, Comm. for the Study of the Am. Electorate) (objecting that “direct elections would permit those who conduct a campaign to effectively ignore the needs and desires of significant minorities in our society,” including African-Americans, who “constitute an ignorable 12 percent of the national voting age population” but “a potentially determinative minority” in certain states); 1979 Senate Hearings, supra note 14, at 163, 164-68 (testimony of Vernon E. Jordan, Jr., Black Leadership Forum) (arguing that direct election of the President would significantly harm the black electorate). Is it fair, is it honest, is it democratic … to place such a premium on a few thousand labor votes, or Italian votes, or Irish votes, or Negro votes, or Jewish votes, or Polish votes, or Communist votes, or big-city machine votes, simply because they happen to be located in two or three large, industrial pivotal states?

The EC system means candidates have to develop cross-national political coalitions.

Michael Herz, law professor and Co-Director, Floersheimer Center for Constitutional Democracy, Cardozo, Cardozo Law Review, May 2005, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION?: ROBERT DAHL’S HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION?: AN INTRODUCTION, WITH NOTES ON THE ELECTORAL COLLEGE, p. 1208

On this account, the strength of the electoral college is that it forces presidential candidates to build broad cross-national political coalitions. Thereby it produces presidents who can govern because of their broad cross-national support. In politics as well as in physics there is such a thing as a critical mass. In presidential elections numbers of votes are necessary but not sufficient. To create the critical mass necessary for a president to govern, his votes must be properly distributed. This means he must win states and win states in more than one region of the country.

Sam March, writing in the The Daily Press,  elaborates:

The main criticism of the Electoral College is that it is not democratic, which is mainly true. However, the writers of the Constitution had no intention of creating a pure democracy. Many of them were accomplished political theorists who carefully studied different systems of government. They came to the conclusion that democracies simply do not work. It has commonly been described as ‘two wolves and one sheep deciding what should be for dinner.’ In other words, it does not stop the majority from oppressing the minority.

The Constitution was designed in part to protect the rights of the minority population. The Electoral College does this by forcing presidential candidates to have nationwide appeal. It prevents them from focusing entirely on their strongest voting blocs, since this strategy would make it impossible to win enough electoral votes. They must build coalitions of voters with many different backgrounds in order to be successful.

This phenomenon can be seen today with the urbanization of the American population. If the president were popularly elected, he would only have to appeal to populations in big metropolitan areas, like New York City and Los Angeles. However, the Electoral College prevents this because winning all the most urbanized states does not provide enough electoral votes to win the presidency.

Majority tyranny. I already mentioned “majority tyranny” in the context of the majority in the east coast cities essentially “tyrannizing” the rest of the country, but there are also arguments about the electoral college encouraging candidates to respect minority interests. This is very similar to other elements of our constitutional system.

Barry Fagin is senior fellow at the Independence Institute, a free market think tank in Denver, November 24, 2016, Greely Tribune, Electoral College a Check on Majority Rule, http://www.greeleytribune.com/news/opinion/fagin-electoral-college-a-check-on-tyranny-of-majority-rule/#

The Founders could have written direct democracy into the Constitution, but they didn’t. There’s a good reason for that. They were well-versed in history and political philosophy and knew that simple majority rule could easily lead to tyranny.

Under majority rule, it’s easy for the majority to oppress a minority, regardless of the party in power. Yes, conservative majorities can tyrannize religious, racial, ethnic and sexual minorities. But liberal majorities can tyrannize, too. As hard as it may be for Clinton supporters to accept, there are thoughtful, reasonable people who do not share liberal positions on gun control, health care or how much of their wealth belongs to government. All they ask is that their individual autonomy in those and other decisions be taken seriously, regardless of whether they’re outvoted in any given election.

Majority power is a two-edged sword. That’s why we have a Constitution and a Supreme Court: To protect the rights of minorities against tyranny of the majority. That’s why America is not a democracy. We’re a constitutional republic. The Electoral College is part of that.

Let’s not forget about the specter of regional conflict that more direct democracies are vulnerable to. Sure, California and Texas occasionally mutter about seceding, but it’s just noise. By contrast, ethnically concentrated regions of countries all across the globe have seen brutal violence and outright war because their political interests were ignored by far-away majorities who ruled over them. The electoral college helps mitigate that risk by incentivizing presidential candidates to pay attention to all parts of the country.

Democracy. Ensuring geographic representation and protecting minority interests are obviously important to democracy, but the EC supports democracy in other ways.

The EC supports democracy by ensuring the interests of more voters are respected/accounted for, second it contributes to stability by localizing potentially fracturing political disputes, and since it has been around for 200 years it has legitimacy.

John McGinnis, law professor, Cardozo, Florida State University Law Review, 2001, v. 29, The Law of Presidential Elections: Issues in the Wake of Florida 2000: Popular Sovereignty and the Electoral College, p. 1000-1

The Electoral College may in fact contribute better to the goals of protective democracy than direct popular election of the President in three other respects. First, political stability contributes to prosperity and the exercise of individual rights, and nothing harms stability more than disputes about elections. The acrimony and bitterness in election disputes flow from the simple fact that politics is a zero-sum game. One candidate and his coalition must win at the expense of the other candidate and his coalition. Social order, a sine qua non of prosperity, can begin to unravel. The aftermath of the recent election should emblazon this truth onto the annals of political science, as it showed all kinds of groups seeking to influence an unclear or doubtful electoral count. For instance, as soon as it became clear that the vote was close, Vice President Gore’s camp began making charges of illegality about the butterfly ballot. Jesse Jackson led a march of Democratic partisans in Tallahassee, comparing the confusion with infamous racist attacks in Selma, Alabama. Republicans sent Capitol Hill staff to Florida in an attempt to influence the deliberations of canvassing boards. A cascade of partisan accusations followed. Political principles–another system of beliefs that contributes to social order–also tend to disappear when the stakes become high. For instance, the Democrats demanded that every vote count while, at the same time, they tried to exclude military ballots.   Republicans believed that technicalities should not bar military ballots, but they did not extend this laxity elsewhere.   Given that lack of clarity in high stakes politics dissolves social harmony, it is actually more important that a close election have a clear result than that it pick the candidate with the most votes.   Of course, the lack of clarity in this last election was unfortunate, but think of how much worse it would have been if there was a close national vote with recounts in every state, not just Florida. At least the unpleasantness was localized. The Electoral College has advantages over direct election because it contributes to localization and containment of potentially destabilizing electoral disputes. Second, because an Electoral College system forces candidates to speak more widely in the country than would a direct election, the concerns of a more diffuse population will be addressed. For instance, the concerns of rural voters, who dominate some states but are more expensive to reach than urban voters, are more likely to be discussed. Addressing the hopes and fears of the entire electorate is the therapeutic side of an election. Citizen whose concerns are addressed (even if not satisfied) are less likely to cause social unrest. The irenic catharsis engendered by an electoral system that focuses on disparate issues thus promotes the stability. Finally, and most importantly given that the Electoral College system has been around for 200 years, its results are more likely to be accepted without question. One of the most striking facts of the 2000 election was that the citizenry, in general, readily accepted that the winner of Florida, and thus the Electoral College, would become President, rather than the winner of the popular vote. That is due not only to the longevity of the Electoral College but also to its results. The United States is a prosperous and powerful country–perhaps the most prosperous and powerful country on earth. Millions of people want to immigrate here each year and, even if they cannot immigrate, billions more want to emulate as much of our culture as possible. Of course, it is entirely possible that a direct presidential election system may not fundamentally change the political system that has contributed to our prosperity. Nevertheless, it is difficult to know ex ante exactly what rules would replace the electoral system and thus whether they would serve us as well in practice, particularly given the complex relation of the Electoral College system to its other rules like the composition of the Senate. The Burkean argument for retaining the status quo for fear that we will not be able to understand the secondary and tertiary effects of change is here particularly strong. Changing complex rules in a highly reticulated system regulating the distribution of political power is an enterprise where we should especially consider the warning spoken by the character of Ulysses in Troilus and Cressida: “Untune that string, and hark what discord follows.”

A popular vote in a close election could result in highly partisan litigation that could collapse the Republic

Jan C. Ting is a professor of law at Temple University’s Beasley School of Law, The News Journal (Wilmington, Delaware), June 11, 2011 Saturday, Delaware’s effort to circumvent the Electoral College is misguided

The flaw in the argument is the possibility of a close result in the national popular vote.

Under the current system, a close vote in the Electoral College could trigger a recount and protracted litigation in a single state, as we experienced in Florida in 2000, or at worst in a couple of states where the close popular vote could affect the electoral votes. But under the national popular vote proposal, a close national vote could result in recounts and protracted litigation in all 50 states and in the District of Columbia, because every single contested vote would count toward deciding the national popular vote winner, regardless of how lopsided the outcome was in that particular state. Thus the threat of total legal gridlock would be much greater under a national popular vote scheme than under the current Electoral College practice. The response of the popular vote proponents to this flaw is essentially to deny the likelihood of a close national popular vote in a presidential election, even after the example of 2000 when there was both a close national popular vote and a close vote in the Electoral College. You think that won’t ever happen again? Seven states (Hawaii, Illinois, Massachusetts, Maryland, New Jersey, Vermont, Washington) and the District of Columbia, together commanding 77 electoral votes of the 270 required for a majority, have already enacted the requisite legislation. House Bill 55 has been passed by the state House of Representatives and now goes before the state Senate. All the Delaware sponsors of HB 55 are Democrats, which is surprising since Delaware is considered a “safe” state for Democrats in presidential elections. How will Delaware Democrats feel if they deliver a majority for their candidate but the electoral votes go to the Republican instead, resulting in the election of a Republican president in place of the Democrat? Regardless of politics, the fatal flaw in the national popular vote proposal is the possibility of another close national popular vote like we experienced in 2000, which would result in recounts and high-stakes partisan litigation not just in one or two closely contested states, but in every single state and the District of Columbia if any votes at all can be contested affecting the plurality of the national popular vote. The proponents of HB 55 are willing to bet the republic that we won’t experience another close national popular vote in a presidential election. Are you? We know the republic can survive gridlock in the Electoral College, and recounts and litigation in a single state, as we did in 2000. But enactment of the national popular vote initiative would be subjecting our system of self-government to the threat of electoral litigation Armageddon. Let’s try to keep the republic functional for a few more generations.

Matt Vespa elaborates on these arguments —

Matt Vespa, November 23, 2016, Why the Electoral College is Excellent, http://townhall.com/tipsheet/mattvespa/2016/11/23/wsj-the-electoral-college-is-excellent-n2249810

This is why the Electoral College is great. It prevents entrenched majorities from stomping over everyone else’s rights—and The Wall Street Journal’s editorial board noted this last week, while also adding the total disaster that would occur should a popular vote be considered the only way to decide the presidency. Voter fraud would be rampant and a recount effort could mean that the U.S. could be denied a new leader for months:

One feature of the Electoral College is that it picks a decisive winner as early as possible. Mr. Trump’s victory across the Midwest gave him a solid majority in the Electoral College that everyone acknowledged. There was no waiting for absentee ballots or recounts. If you think a recount in one state like Florida in 2000 was corrosive, imagine a tight popular vote with contested results in 50 states and thousands of counties. The opportunities for fraud, or claims of fraud, would be endless.

The system also tends to narrow the field to two candidates who have a plausible path to 270 electoral votes. This is a weakness when the major parties produce two unpopular nominees, but that is an argument for the parties choosing better candidates. The Electoral College reduces the relevance of fringe candidates who could otherwise force themselves into importance in a national poll. Most voters in the end abandon third-party candidates so they won’t “waste” their vote.

[…]

Larry Arnn discusses the constitutional underpinnings of the Electoral College nearby. The Founders selected the system in part to moderate the worst impulses of a concentrated majority. Even after last week’s political earthquake, Alexander Hamilton ’s words for the Electoral College in Federalist No. 68 hold

Politicization. A national popular vote system would just encourage candidates to pander to their bases, increasing politization rather than compromise.

Emily Shulteis, November 24, 2016, No More Electoral College? Here’s How Campaigning Might Change, http://www.cbsnews.com/news/no-more-electoral-college-heres-how-campaigning-might-change/

In fact, an electoral system based on the popular vote would also encourage candidates to further play to their respective bases rather than actually trying to persuade new voters.

The reason “battleground states” have earned that term is because they really are often very evenly split between parties — and the winner-take-all nature of the Electoral College gives candidates incentives to work to reach out to undecided voters and tip the scales in their favor in those states.

“There’s a real sort of persuasion campaign that goes on to win those votes,” Sterzenbach said. “I think what you’d see a lot of if we just had a national popular vote is the candidates might be playing to their base  — because that might be enough.”

Candidates. A national election would give a huge advantage to celebrities like Trump [Yes, I realize he won in the EC system, but nationally known candidates would have enormous advantages in a national vote system]

Emily Shulteis, November 24, 2016, No More Electoral College? Here’s How Campaiging Might Change, http://www.cbsnews.com/news/no-more-electoral-college-heres-how-campaigning-might-change/

The idea of a truly national presidential campaign would also, in theory, mean already well-known individuals like actors or athletes with high name ID among the American electorate would have a built-in head start.

Then again, a businessman best known for his TV show “The Apprentice” won this time around, noted longtime GOP strategist Mary Matalin.

“The purpose of the electoral college is to prevent tyranny of the majority, to protect minority rights,” Matalin said. “Which is why this specious campaign is so ironic.

Power of the states. The EC enhances the power and significance of the states, providing a check on government power.

Daniel H. Lowenstein, law professor, UCLA, Northwestern, 2007, University of Pennsylvania Pennumbra, Debate: Should We Dispense with the Electoral College?, p. 22

The Electoral College causes presidential elections to be significantly oriented around states. Perhaps because I spent eight years in the state government of California before I became an academic, I share many of the popular prejudices about the inside-the-Beltway mentality and the arrogance of the federal government. Against all the pressures of nationalization, it is important to maintain the states as strong and vital elements of our system, both in practice and in public understanding. Unlike some conservative jurisprudes, I do not believe constitutional limits on the powers of the federal government are a promising way to accomplish this. In practice, the Electoral College is by no means the most important institution we have for strengthening the states, but neither is it by any means the least important.

This protection of federalism is exactly why the EC is important.

Luis Fuentes-Rohwer and Guy-Uriel Charles, law professors, Florida State University Law Review, 2001, v. 2, The Law of Presidential Elections: Issues in the Wake of Florida 2000: The Electoral College, the Right to Vote, and Our Federalism: A Comment on a Lasting Institution, p. 920-1

Seen generally, Bush v. Gore is both an example of the Court’s struggle to identify the proper boundary between state and federal responsibilities, as well as the divisiveness of that struggle. One looking to catalogue the various opinions in Bush v. Gore may situate them within one of the three categories stemming from the Court’s federalism cases: preserving individual rights; maintaining the dignity of the states; or policing the boundary between federal and states interests. In this vein, many of the Justices acknowledge the premise that presidential elections fall within the responsibility of the states.   That is to say, on the question of whether the Constitution has granted this responsibility to the states as opposed to the federal government, the opinions all agree that the point of departure must be that presidential elections are assigned to the states. In turn, and rather uncharacteristically, the Justices who usually dissent in federalism cases in favor of greater federal power, though dissenting yet again, sided with the states this time. Thus, Justices Ginsburg, Stevens, Breyer, and Souter all agreed that the states, including their own courts, should be given every opportunity to fulfill the duties assigned to it under the Constitution.   Additionally, they suggest that if a State is unable to perform its prescribed obligations, the issue belongs to Congress. In this way, they categorically rejected the view that this area raises any individual rights violations under the Constitution.   Not surprisingly, the third faction in Bush v. Gore gave us a ringing defense of states’ rights. To be fair, Chief Justice Rehnquist and Justices Scalia and Thomas provided two twists to their traditional position. First, they interpreted the meaning of “state” strictly, and in so doing included the state legislature while excluding the state Supreme Court.   And second, they arrived at their states’ rights argument by emphasizing the federal interest at stake, a presidential election. How then would the Justices in Bush v. Gore answer the question of whether the individual, the state, or the federal government is the fundamental entity within which lies democratic legitimacy? Justices O’ Connor and Kennedy would probably answer that democratic legitimacy lies fundamentally in the individual. Chief Justice Rehnquist and Justices Thomas and Scalia would find democratic legitimacy in the state legislature. The Bush v. Gore dissenters share the most nuanced position. They would seem to find legitimacy in all three, depending upon the circumstances. CONCLUSION With these competing views in hand, we come to the end of our road. We end with Bush v. Gore. In the case, the Court reminds us that we have struck a compromise between democracy and federalism. On the side of federalism, the Court states in stark terms that the “individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.” Additionally, the “State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.” On the side of democracy, it is fair to say that our commitment to majority rule encompasses the principle of “one person, one vote” and that this principle “comes closer to summarizing current notions of democracy in representation than any other.” It is clear that we have elevated this concept to the realm of “moral platitude.” At present however, when federalism and democracy clash or when notions of popular sovereignty meet the current system of selecting our President and Vice President, federalism wins; the Electoral College prevails. Whether rightly or not, we believe that this end result will continue until we achieve any consensus in the struggle to accommodate democracy and federalism. As matters stand, in other words, the Electoral College is our default position as we struggle over our commitment between democracy and federalism.

Strong states protect the interests and rights of the people.

Barry Fagin is senior fellow at the Independence Institute, a free market think tank in Denver, November 24, 2016, Greely Tribune, Electoral College a Check on Majority Rule, http://www.greeleytribune.com/news/opinion/fagin-electoral-college-a-check-on-tyranny-of-majority-rule/#

The Electoral College has other advantages. It asserts that all the states matter, big and small. States are political entities whose elected officials are by definition closer and more accountable to the people they serve. They must ask voters for money (instead of printing it or borrowing it) and are constitutionally forbidden from keeping American citizens from entering or leaving their boundaries. If they become too oppressive, people can leave. If they become particularly successful, people can move there.

This means states must at some level compete with one another to improve the lives of their residents, making them important laboratories for political experimentation. It’s part of the genius of federalism and is a feature worth protecting.

[And, yes, I realize there is a debate about the merits of federalism, but that is a separate debate. For now, let’s agree that it is a fundamental organizing principle of the constitutional structure]

Costs. A national campaign would be substantially more costly.

Stanley Chang, law student, Harvard, Harvard Journal on Legislation, Winter, 2007, UPDATING THE ELECTORAL COLLEGE: THE NATIONAL POPULAR VOTE LEGISLATION, p.227-8

The skyrocketing cost of Presidential campaigns is already controversial, but a transition to a nationwide popular vote in which every vote counts may increase costs even more rapidly. For the 2004 election, the major candidates for President raised a total of approximately $ 919 million.   Both major party nominees also opted out of the federal matching fund program during the primaries, which would have set an overall spending cap and limits in individual states. In the future, more candidates are expected to follow this opt-out practice, which will probably contribute to further escalations in fundraising and spending. The increased cost of a national Presidential campaign has gone largely unnoticed in the debate on a direct popular vote for President.   The practical difficulties of conducting a comprehensive nationwide campaign should be of substantial concern to NPV supporters. It seems quite likely that a fifty-state campaign would be much costlier than the present sixteen-state campaign. Instead of buying advertisements on local television stations, the candidates would probably need to buy time on the national networks, which although vastly more expensive than the local stations would still be the most cost-effective way to reach large numbers of voters.   The cost of candidates’ direct mailings, automated calling, phone banking, public rallies, polling, radio advertising, canvassing, and other operations–all expensive already–would further increase, if expanded nationwide. The suddenly magnified need for fundraising and the accompanying increase in the stature of major contributors could exacerbate the perception that elites and large corporations hold disproportionate influence over the presidency. The influence of money on politics, already criticized, would almost certainly come under greater scrutiny as campaign expenditures ballooned. A serious study of the effects of nationwide direct election on campaign expenditures is essential in evaluating the ultimate desirability of the NPV legislation.

For better or worse, Trump was able to win the election by directing a much more limited campaign budget to critical states.

Answering objections to the Electoral College

Hillary should be President. Contemporary calls to abolish the EC mostly come from partisan fans of HC who think she should have won the presidency.

First, as I discussed above, we do not know that she would have won if the election was based on the popular vote.

Second, this is really an argument for autocracy – that some smart rules should simply choose the best President. It doesn’t make any sense to argue for a change in the process after your candidate loses.

Third, the EC system has ben effective in producing strong presidents.

Daniel H. Lowenstein, law professor, UCLA, Northwestern, 2007, University of Pennsylvania Pennumbra, Debate: Should We Dispense with the Electoral College?, p. 23

The Electoral College produces good presidents. True, we’ve had a few lemons and a larger number of unmemorables. But we’ve had a remarkable number of remarkable leaders. The Electoral College has produced Washington, Jefferson, Jackson, Lincoln, Cleveland, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, and Reagan. None of us may approve of all of these without qualification, but taken together, it is a pretty big group of distinguished chief executives. Probably the only country in the world that could point to an arguably comparable set of chief executives is the United Kingdom, and they, like us, elect their executives indirectly. Professor Levinson might respond to this history in a manner akin to W.S. Gilbert’s encomium to the House of Lords, which included the following:

When Wellington thrashed Bonaparte, as any child can tell,

The House of Peers throughout the war,

Did nothing in particular,

And did it very well.

In other words, Professor Levinson might argue that the Electoral College is not the cause. These or equally distinguished presidents might have been selected by a popular vote. So they might have. But “did” is better than “might have.” A lot better, in the eyes of us anti-Sophisters.

And if the elected President was truly a lunatic, the electors could vote against him; that’s the point.

Richard Moore, November 24, 2016, In defense of the electoral college, http://www.lakelandtimes.com/main.asp?SectionID=10&SubSectionID=10&ArticleID=32721

The Electoral College performs both these functions extraordinarily well in electing our president.  As to temporary passions, for instance, the Electoral College prevents us from electing lunatics. Yes, I know what liberals are thinking: Wait a minute, didn’t the Electoral College just give us a lunatic? The problem with that thinking is that half the nation does not agree. But if you can convince the electors who will conduct the real presidential election on Dec. 19, go ahead and give it a try. That’s what the Electoral College is for. All those liberals now lobbying the electors shows us the system is working just fine, thank you very much.

Fourth, the arguments above about why it is bad to have a President who just looks out for the interests of the elite coastal states is wrong.

Fifth, if more individual people would have voted, Clinton would have won

South Strand News, November 25, 2016, Electoral College Still Serving Its Purpose, http://www.southstrandnews.com/opinion/editorial-electoral-college-still-serving-its-purpose/article_5c3c388c-affb-11e6-9f25-37b1a37a3647.html

It’s also ironic that states such as California and New York, where disgruntled Clinton fans have taken to the streets, went decidedly Democrat in the presidential race. Ms. Clinton picked up 74 electoral votes in these two states alone. That’s nearly one-third of her entire electoral vote count of 228.

We sympathize with those Californians and New Yorkers refusing to accept the inevitable, but the electoral college was designed in part to prevent giving large, more densely populated states an unfair advantage. There are, after all, 48 other states in this great nation.

While voter turnout was generally strong, it was comparatively lower on the Democratic ticket.

As Bob Botsch, professor emeritus at USC Aiken noted during a recent talk in North Augusta, considerably more votes were cast for Barack Obama in 2012 than for Hillary Clinton in 2016.

In 2012, there were 65,446,032 votes cast for President Obama, according to the National Archives. The Associated Press, as of late Friday, reported that Clinton captured 62,825,754 votes, nearly 2.6 million less than Obama’s tally.

EC was designed to protect slave holding states. There are a number of problems with this argument.

One, no, the EC was designed to facilitate a compromise among states, not to protect slave holding states.

Joy McAfee, law professor, Cumberland Law Review, 2001 / 2002, SHOULD THE COLLEGE ELECTORS FINALLY GRADUATE?: THE ELECTORAL COLLEGE: AN AMERICAN COMPROMISE FROM ITS INCEPTION TO ELECTION 2000, p. 646-7

The creation of the Electoral College is no exception to the many other great compromises of the Constitution that created a unified republic in the midst of the diverse thirteen states. Tracing the intentions of our founding fathers at the Constitutional Convention of 1787 in the creation of the Electoral College is imperative, because it not only provides a glance into the great compromise that unified the original thirteen colonies, but also foreshadows the unity needed for the fifty states with diversified characteristics stretching from the Atlantic to the Pacific Ocean. Although the media tends to report the creation of the Electoral College as a concession to the Southern slave-holding states, the Electoral College was actually a compromise based upon federalism and equality of all states. While opponents of the Electoral College, such as Lawrence Longley and Neil Pierce, n14 argue that the Electoral College plan was made in haste in order to reach an agreement, advocates, such as Judith Best, n consider the plan to be the model of our federal system. History reveals that the Constitutional Convention consisted of many radical differences of opinion and a great need for negotiation between the thirteen large and small states which were each content in retaining its own powers and suspicious of any centralized power in a federal government. The great presidential election debate centered between a larger state preference of a direct popular election and the smaller state concern that a direct election by population would weaken their voices. Proposals for the presidential election were made by the “Committee of Eleven,” a group commissioned to study various methods to elect a President. Although James Madison of Virginia initially made a proposal for direct election of the President, it was soon evident that a popular election faced fierce objections as the smaller states were warned that “the most populous states by combining in favor of the same individual [would] be able to carry their points.” Other fears of a direct election consisted of the lack of awareness and knowledge of candidates among the four million people spread over thousands of miles, the loss of representation in the South because of the nonvoting slave population, and the concern that a direct election of the President would place too much power in one person. In contrast, presidential election by Congress also faced opposition and fears that the President would be subservient to Congress and be bound by political ties, defeating the purpose of an independent leader. Therefore, an election process for the President of the new republic had to be established that would appease both concerns of the larger and the smaller states to prevent a convention deadlock and the failure of the Constitution. James Wilson of Pennsylvania suggested such a compromise to avoid the fated deadlock. On September 7, 1781, the Constitutional Convention adopted his plan consisting of an intermediate election of a college of electors based upon congressional apportionment. Each state would receive a number of electors equal to the number of Representatives and Senators from that state. If no candidate received a majority of the votes of the electors, then a default system would fall to the House of Representatives to choose among the top three candidates for President, and then the Senate would choose the Vice-President between the remaining top two candidates. The compromise was accomplished, and it seemed that all delegates were content. The larger states received electoral votes based upon their population, and the smaller states were assured of at least three electoral votes and a default system to the House of Representatives that would be based upon a one vote per state principle. Furthermore, many of the delegates feared a tyranny of the majority; thus the Electoral College tempered these fears of control with its indirect method of election. Those who feared a strong federal government were given a system that allowed states to determine their own method of choosing their electors. Thus, the heart of the American government – compromise – was displayed in the origin of the Electoral College.

Without this compromise, some states would not likely have ratified the Constitution

William Sullivan, November 25, 2016, American Thinker, All This Silliness About Abolishing the Electoral College, http://www.americanthinker.com/articles/2016/11/all_this_silliness_about_abolishing_the_electoral_college.html

This argument is, of course, painfully dim and tiresome.  The Electoral College is one of many safeguards against what de Tocqueville would later describe as the “tyranny of the majority” that our Founders feared, or more specifically, the threat of a concentrated majority in a state that happened to be more populous than another.  After all, it’s doubtful that Rhode Island would have chosen to ratify the Constitution and join these United States if they believed that their state’s unique desires at the federal level would be perpetually overruled by the much more populous New York, for instance.

Two, I think it makes more sense to look at how the EC functions now. As noted above, there are many reasons why the EC promotes diversity and protects minority rights. And there is no evidence that the EC system undermines the interests of minorities.

Luis Fuentes-Rohwer and Guy-Uriel Charles, law professors, Florida State University Law Review, 2001, v. 2, The Law of Presidential Elections: Issues in the Wake of Florida 2000: The Electoral College, the Right to Vote, and Our Federalism: A Comment on a Lasting Institution, p. 905-6

  1. The Electoral College and Voters of Color.–Though the impact of the current system on third parties is quite clear-cut, the impact of the College on voters of color is not. In this section we examine the oft-stated assumption that the Electoral College is inherently biased against voters of color. We conclude that the Electoral College is not inherently biased against voters of color. In fact, the College favors some voters of color, particularly Latinos and Latinas, and disadvantages others, especially African Americans living in the South. There is, however, no evidence to suggest that the College invariably and directly disadvantages voters of color, even African-American voters who reside in the South, qua voters of color. Rather, the evidence suggests that where the College disadvantages voters of color, this is because they live in a state that is disadvantaged by the College. Many commentators have stated that the Electoral College reduces the voting potential of voters of color. For example, Abbott and Levine note that African Americans, particularly those residing the South, “find themselves typically casting votes for president that have virtually no influence on the electoral votes of their states.” The proposition that the political preferences of voters of color, particularly African Americans, are disproportionately and negatively affected by the Electoral College has gained increasing and widespread acceptance in both scholarly and popular circles.   Some scholars argue that the Electoral College disadvantages voters of color because of the predominance of the unit-vote or winner-take-all method of selecting electors employed by the overwhelming majority of states. As we noted earlier, a consequence of unit-voting is the submergence of the votes of political minorities where the political preferences of voting minorities diverge with those of political majorities. As a result of the unit rule, African Americans–specifically African-American voters in the South who vote over-whelmingly for the Democratic Party–are more often than not submerged because they are surrounded by White voters who vote over-whelmingly for the Republican Party.   Unless the presidential electoral preferences of African Americans who reside in the South coincide with those of their Southern White neighbors,   they will seldom select a presidential elector. Consequently, as described by one commentator, the vote of African Americans in the South is “virtually meaningless in the final selection of the President.” Taking this criticism on its merits, there are no empirical reasons to believe that unit-voting invariably minimizes the electoral prospects of voters of color. There is support for the proposition that unit-voting minimizes the votes of African Americans in the South. This is because African Americans, who are a political minority and a distinctively liberal minority on some issues, are surrounded by the most politically conservative voters in the country–White voters in the South. As long as African Americans in the South remain politically liberal and are numerical minorities, and Whites in the South remain politically conservative, African Americans will continue to cast “wasted” votes in presidential elections. As Longley and Peirce document, the Electoral College disproportionately affects the relative voting power of African-American voters compared to other groups and the electorate as a whole. Significantly, Peirce and Longley explain that African Americans are disadvantaged by the Electoral College not because they are African Americans, but on the basis of their geographic concentration and distribution throughout the United States. This is because African Americans are largely concentrated in the South, and Southern states are disadvantaged by the Electoral College. Thus, Black disadvantage is ancillary to the inherent geographic biases of the Electoral College and is due to the stochastic element that is geographic distribution. The criticism that the unit-vote system depresses the votes of political minorities masks a more fundamental division. The unit-vote debate is really an argument about what should constitute a proper “unit” for presidential elections. On one level, the argument is whether the proper unit is a state or a congressional district. But on a more fundamental level, the argument is whether the proper unit is a state or the whole of the United States. Viewed from this perspective, the unit-vote debate clearly raises questions about our national commitment to a certain conception of federalism. To what extent are we fundamentally a collection of sovereign states? To what extent are the interests of the states subsumed to that of the national or federal government? We take up these questions in the last Part.

In fact, the EC system means candidates have to pay attention to minority concerns in certain states.

Albuquerque Journal (New Mexico), December 31, 2008 The Electoral College Works for New Mexico, p. A6

It sounds cleaner, simpler on the face of it – dump the Electoral College and stick to the principle of one person, one vote. Rep. Mimi Stewart, an Albuquerque Democrat, plans to resurrect a bill to do just that, saying it’s “a fairness issue. Mathematically, 11 states could currently choose who’s elected (president). I think people are tired of the electoral college.” That would mean they are also tired of having a say in presidential elections. When it comes to a national popular vote, mathematically, New Mexico doesn’t matter. Our total population was fewer than 2 million in the ’06 census – less than one-fourth the population of New York City. Our state’s popular vote added up to 830,158 in the 2008 presidential election – less than a fourth the population of Los Angeles. But having five of the 271 votes needed under the Electoral College garners New Mexico voters attention when it comes to selecting the leader of the free world. Removing that weight would mean no Joe Biden in Mesilla, no Barack Obama in EspaÒola, no John McCain in Las Cruces and no Sarah Palin in Roswell. Getting the most bang for their campaign buck would translate into concentrating on urban population giants aligned with their party, not rural swing states that want to hear their message. It would also reduce candidates’ interest in minority concerns. New Mexico’s winner-take-all system means minority groups can provide the critical winning edge. Without that leverage effect, they would be overwhelmed by the national popular majority.

EC ignores the popular vote. First, I wrote extensively at the beginning of this essay about how we do not know if any candidate that prevailed in the popular vote in the EC system would have prevailed in the popular vote if the popular vote system was used.

Second, each person’s vote is respected at the state level.

Joy McAfee, law professor, Cumberland Law Review, 2001 / 2002, SHOULD THE COLLEGE ELECTORS FINALLY GRADUATE?: THE ELECTORAL COLLEGE: AN AMERICAN COMPROMISE FROM ITS INCEPTION TO ELECTION 2000, p. 645

However, the Electoral College has survived the continual legislation and attacks of its opponents. It is a compromise that has lasted for 214 years. In the eighteenth century, the founding fathers created an Electoral College system that would allow the popular vote to be heard, as urged in the calls for reform by Senator Hillary Rodham Clinton in the twenty-first century. This popular vote is heard in the state within which citizens reside. The Electoral College still provides a channel where both the majority and minority voices are heard in the presidential election. As Alexander Hamilton observed in reference to the Electoral College, ” if the manner of it be not perfect, it is at least excellent.”

Third, it is worth the sacrifice to gain the virtues of a representative democracy. 

Joy McAfee, law professor, Cumberland Law Review, 2001 / 2002, SHOULD THE COLLEGE ELECTORS FINALLY GRADUATE?: THE ELECTORAL COLLEGE: AN AMERICAN COMPROMISE FROM ITS INCEPTION TO ELECTION 2000, p. 649-50

The creation of our Constitution was a risk. The creation of an executive to rule without tyrannous power was a risk. The formation of the Electoral College is a system that is not immune from this same risk. The Electoral College is simply a risk of a representative government. As the elections of 1888 and 2000 prove, a risk does exist that a candidate with a majority of the Electoral College vote will become our President even though failing to capture a majority of the popular vote. Many historians claim that the election of 1876 also resulted in the same discrepancy between the Electoral College and the popular vote. However, historians have revealed that the election of 1876 involved fraud, and the voting numbers cannot be considered as a blunder of the Electoral College itself. Furthermore, the election of 1824 cannot be considered as an Electoral College mishap because the popular vote was not cast in all the states and because the contingency election in the House of Representatives actually awarded the presidency instead of the electors. Therefore, only twice in the history of the Electoral College has the great fear of its opponents actually occurred. Both elections were between two candidates who received extremely close numbers in popular and Electoral College votes. In 1888, Benjamin Harrison, the Republican candidate, carried a number of large states, capturing many Electoral College votes. However, he won these electoral votes by slim margins. In contrast, Grover Cleveland, the Democratic opponent, carried a number of states in which he won by large margins. It is easy to see how in this close election Benjamin Harrison won the Electoral College vote, while Grover Cleveland won the popular vote. However, Cleveland only won the popular vote margin by eight-tenths of one percent. Quite similarly, the election of 2000 was extremely close with Al Gore receiving 266 Electoral College votes, and George W. Bush receiving 271. As for the popular vote totals, Gore received 50,996,582, and Bush received 50,456,062. Gore therefore won the popular vote margin by one half of one percent, an even smaller margin than in the election of 1888. Opponents would argue that because the Electoral College has elected a President who did not receive a majority of the popular vote twice, it could easily occur again in a close election. The fear of the college is therefore justified due to elections such as those of 1888 and 2000. The percentage numbers are clear evidence that the Electoral College is not perfect. However, the Electoral College has only produced inconsistent results twice in 214 years. Opponents claim runner-up Presidents were elected; yet Harrison and Bush lost the popular vote by 0.8% and 0.5%, respectively. The system is imperfect, but it is hardly a system that robs America of a legitimate President and instead elects a candidate who is opposed by the overwhelming majority. Although Harrison and Bush lost the quantitative popular vote measure, both candidates were the federal plurality winners by gaining more of the popular votes in the individual states to create a national President. The minuscule percentage differentials of the popular vote reveal that the great fear of the Electoral College has yet to be greater than one percent. The compromise of the founding fathers has faced its opposition with only “moderate imperfections.”

Representative democracy checks the passions of the population and ensures strong governance

Richard Moore, November 24, 2016, In defense of the electoral college, http://www.lakelandtimes.com/main.asp?SectionID=10&SubSectionID=10&ArticleID=32721

For the Electoral College (among other constitutional mechanisms) is a filter, if you will, through which the people’s desires are poured. What’s filtered out is raw emotion, authoritarian impulses, and even corruption. It is the difference between a direct democracy and a democratic republic. In a direct democracy, overheated emotions can carry the day, overwhelming the deliberative process, while in a representative government, with all its checks and balances, the deliberative process prevails while preserving the general will of the people. In a direct democracy, the constellation of a permanent majority also makes it tempting to dispense with the rights of the minority, while in representative government counterbalancing mechanisms ensure that political power is fragmented rather than concentrated in any particular constituency or population group, whether it is a majority or not.

Candidates could win by only winning the large states. The problem with this argument is that it has never happened.

Michael Herz, law professor and Co-Director, Floersheimer Center for Constitutional Democracy, Cardozo, Cardozo Law Review, May 2005, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION?: ROBERT DAHL’S HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION?: AN INTRODUCTION, WITH NOTES ON THE ELECTORAL COLLEGE, p. 1217

The fact that the overall winner nearly always wins an actual majority of the states is an almost complete response to the objection that one defect of the electoral college is that someone could become President by winning only a dozen or so of the biggest states. See Congressional Quarterly Guide to the Presidency 233 (Michael Nelson ed., 1989) (pointing out that winning twelve states could bring a candidate overall victory); 125 Cong. Rec. 5182 (Mar. 15, 1979) (statement of Sen. Carl Levin) (“[A] candidate can win the Presidency by carrying the electoral votes of only 11 states. Yet, surely, no one would want to see a President who felt particularly obligated to represent the attitudes of only those States or even appear to so represent.”). Like many of the unacceptable outcomes the electoral college could produce, such a scenario is altogether theoretical. It is hard to imagine a real world candidate who is consistently, but exclusively, popular in the larger states.

State electors don’t have to vote based on the voting of the state. While it is true the some state electors do not have to vote based on the outcome of the vote in their state, most are bound to do so.

Joy McAfee, law professor, Cumberland Law Review, 2001 / 2002, SHOULD THE COLLEGE ELECTORS FINALLY GRADUATE?: THE ELECTORAL COLLEGE: AN AMERICAN COMPROMISE FROM ITS INCEPTION TO ELECTION 2000, p. 653-4

Perhaps the fear of the faithless elector arises from opinions such as the following given by a New York State Attorney General:

The presidential electors for the respective candidates are voted for by the people and, by reason of the mandate given them by the people, the electors should vote in accordance with the people’s desires as indicated by the majority vote. It is my understanding that there is not a rule of law which compels the electors to vote for a particular candidate for President … [A] particular presidential elector may cast his ballot legally for any candidate he might choose.   However, now over half the states and the District of Columbia under the power of Congress bind electors directly or indirectly to their political pledge using faithless elector laws. To the complaints of Electoral College adversaries, these states and the District of Columbia comprise over half of the Electoral College. Faithless elector laws were challenged in the Supreme Court on the ground that the Constitution places no limitation on how an elector must cast his or her vote in the Electoral College. Although the Supreme Court did not specifically address whether the punishment for faithless electors is constitutional, the Court did state that the Constitution and the Twelfth Amendment do not “forbid a party to require from candidates in its primary a pledge of political conformity with the aims of the party.” If those in fear of the faithless elector are still unsatisfied with the current state legislation, efforts should be made to create these laws in all fifty states. Again, the blame is not the Electoral College.

[Note: Somewhat ironically, some people who favor the abolition of the EC because Hillary Clinton lost are also encouraging the electors to vote for Hillary based on principled opposition to Trump].

The EC encourages a two party political system. While this is really a debate topic unto itself, there is evidence defending the two party political system.

Joy McAfee, law professor, Cumberland Law Review, 2001 / 2002, SHOULD THE COLLEGE ELECTORS FINALLY GRADUATE?: THE ELECTORAL COLLEGE: AN AMERICAN COMPROMISE FROM ITS INCEPTION TO ELECTION 2000, p. 654-5

A dual purpose of our party system and the center of American politics is the idea that America is a country where the majority rules with minority rights. Third party minority movements in our history account for only five percent of the total vote cast in presidential elections. Critics state that our dominating two party politics never allow the voice of a minority party to be heard. They state that under the current “winner-take-all” strategy, a system used in forty-eight states that allows a candidate to receive all a state’s slate of electors by winning a plurality of the popular vote threatens minority parties who win millions of popular votes but fail to gain any electoral votes. Critics claim that because of the Electoral College, a vote for a minority party is essentially a wasted vote. A third party with a broad based support that is nationally distributed could face a disadvantage under the current system. However, America is based upon a two party system that enables a central organization to carry out goals that demand a wide range of interests and a broad spectrum of opinion due to the melting pot of ideals, morals, and goals. The two major parties are national and are a union of the fifty states creating a coalition of county and local party organizations. Without a two-party competition, it would almost be impossible to win a true sizable plurality of at least forty percent. Compromises and concessions would vanish, and a candidate could represent all fifty states by winning the vote with a minimal plurality. True representation would cease to exist because it would not be needed to win. Instead, a minority party could represent a select group with large numbers and disregard the many important compromises needed to gain these votes under a two party system. For example, consider Ross Perot in the election of 1992. Perot won almost twenty percent of the popular vote, yet failed to gain even one Electoral College vote. Perot did not gain a single Electoral College vote because he did not win one single state. Because the frenzied media focused the support of Perot on a national level and not a state level, it created immediate attention that Perot would deadlock the election. However, this only created a misconception, and Perot’s failed campaign offered a lesson to the presidential election: understand the election system and campaign and compromise to gain a majority. Furthermore, Perot also provided an important compromising lesson to George W. Bush, the Republican candidate, and Bill Clinton, the Democratic candidate in the 1992 election. When a strong independent voice is gaining public support such as that of Perot, focus your own campaign to include parts of his message. n69 Remember the great compromise. The two party political system is vital to our majority rule with minority rights. Without it, no majority would ever rule, and only one minority could have rights. The two party system creates consensus by forcing citizens to compromise at the state level within two political parties. If the Electoral College were abolished, third parties could tabulate popular votes across state lines and no incentive to compromise would exist. A rule of the minority with the consent of the majority is much less likely to create clear, consistent elections like those of the Electoral College.

The EC violates the “one person, one vote” principle. This is actually not in the Constitution and the Constitution is not based on a one person, one vote principle

Joy McAfee, law professor, Cumberland Law Review, 2001 / 2002, SHOULD THE COLLEGE ELECTORS FINALLY GRADUATE?: THE ELECTORAL COLLEGE: AN AMERICAN COMPROMISE FROM ITS INCEPTION TO ELECTION 2000, p. 657-8

  1. Is the “One Man, One Vote” Concealed by the Electoral College?

The “One Man, One Vote” principle was rejected by the founding fathers at the Constitutional Convention in five areas: representation in the Senate, representation in the Electoral College, selection of the President in the default House election, selection of the Vice-President in the default Senate election, and the percent needed to ratify a constitutional amendment. Instead, the principle of equal state representation was adopted, changing the principle to “one state, one vote.” Although the equal state representation was the compromise and intention at the Constitutional Convention, critics argue that this state representation violates the Equal Protection Clause of the Fourteenth Amendment. Although the Supreme Court has not ruled directly upon the alleged constitutional violation, the Court has ruled directly on a state’s apportionment statutes for state representation. For example, the Supreme Court held that a claim of a state’s apportionment statute for the General Assembly in violation of the Fourteenth Amendment was justifiable. The Court later struck down an electoral system giving rural counties weighted votes. However, Justice Douglas wrote in dictum for the majority opinion striking down weighted votes that “the only weighing of votes sanctioned by the Constitution concerns matters of representation such as … the use of the Electoral College in the choice of the President.” Thus far, the Supreme Court rulings in violation of the Fourteenth Amendment of state and congressional reapportionment were made because no constitutional laws exist to cover these apportionments. Conversely, the Constitution does provide a “scheme” for the Electoral College leaving its decision of apportionment to the states. If the Supreme Court rules that the state apportionment of electors violates the Equal Protection Clause of the Fourteenth Amendment, state representation in other areas such as the Senate and congressional amendments could also be deemed unconstitutional. The “one state, one vote” principle was part of an ingenious compromise to treat all fifty states the same no matter what the majority believes. The local interests of the minority would not be forgotten. By creating a federal government based upon representation from each state in an election, the representatives who are aware of the opinions and interests of the people must recognize their citizens’ local interests. If they do not act upon these local interests, the will of the people will be heard because that representative will not succeed in reelection.

The popular vote would empower regional candidates. No, it would not –

Brendan Nyhan, July 28, 2010, New Yorker, http://www.newyorker.com/news/hendrik-hertzberg/debating-n-p-v

So that argument is merely untrue. A second argument”that N.P.V. would empower regional candidates”goes further: it is the exact opposite of the truth. Do I really need to explain why awarding a hundred per cent of a states electors to the plurality winner in that state favors candidates whose appeal is regional as opposed to national? oeThe George Wallaces of the world, which right now have basically no impact on national elections, would have a much larger voice, she argues. No impact? In 1968, Wallace, whose appeal was regional, got 13.5 per cent of the popular vote and 46 electoral votes. In 1992, Ross Perot, whose appeal was national, got 18.9 per cent of the popular vote and zero electoral votes. Ross’s argument displays a disturbing failure to grasp basic principles of political science. The reason that we wouldn’t observe a proliferation of candidates under a popular vote system is what’s known as Duverger’s Law, which pundits who hype third-party candidates repeatedly fail to grasp. As one textbook puts it, “In any election where a single winner is chosen by plurality vote (whoever gets the most votes wins), there is a strong tendency for serious competitors to be reduced to two because people tend to vote strategically.” In short, most voters do not want to waste their votes, and the contest is almost always winnowed to the two strongest candidates. Moving from the Electoral College to a popular vote system would not change this dynamic. Indeed, as Hertzberg notes, it might make it stronger by eliminating the possibility of regional candidates capturing a handful of electoral votes.

 

Post a Comment

Your email address will not be published. Required fields are marked *

*

Calendar

November 2016
M T W T F S S
« Oct   Dec »
 123456
78910111213
14151617181920
21222324252627
282930