Disgracing the Electoral College

“I do not, gentlemen, trust you!” thundered Gunning Bedford at the Constitutional Convention. He was a small state delegate, speaking directly to those from the large states. “If you possess the power,” he continued, “the abuse of it could not be checked; and what then would prevent you from exercising it to our destruction?”

Gunning Bedford

Gunning Bedford

The other small state delegates shared his concerns. Their states would not—could not—be free if they were being tyrannized by the decisions of large state citizens. Their concerns came to the fore when a direct national election for President was proposed.

Roger Sherman (CT) worried that the people “will generally vote for some man in their own State, and the largest State will have the best chance for the appointment.” Charles Pinckney (SC) concurred that the “most populous States by combining in favor of the same individual will be able to carry their points.” The Convention ultimately rejected the concept of a national direct election, for fear that small state citizens would have little to no voice in the selection of America’s executive.

If only today’s state legislators would take a few moments to listen to the concerns of their ancestors. They are instead on the verge of rashly joining a movement that will undermine their own freedom.

This so-called National Popular Vote (NPV) effort is halfway toward accomplishing something that was once thought impossible: It could effectively eliminate America’s unique system of electing Presidents, the Electoral College, and implement a national direct election process in its place. NPV shuns the difficult constitutional amendment process and instead claims that this radical change can be made via an interstate compact.

NPV’s compact would require participating states to change the manner in which they award electors. Most states today award electors to the winner of a state’s popular vote. With NPV in place, states would instead award electors to the winner of the national popular vote. In 2004, California would have given its 55 electors to George W. Bush, despite John Kerry’s decisive win in that state.  Texas would have given its 38 electors to Barack Obama last year.

Eight states plus D.C., with 132 electoral votes along them, have already approved NPV’s proposed compact. The bill is currently pending in Connecticut, Minnesota, New York, and Oregon (53 electors, total). If these states were to approve the plan, then NPV would be only 85 electors shy of the 270 that it needs to go into effect.

Assuming this plan survives the inevitable court challenges, NPV would ensure that the Electoral College exists only on paper. In practice, the system would be gone. And it would take much of our freedom with it.

“Individual liberty” and “Electoral College” probably aren’t two phrases that you typically utter in the same breath. But they should be. If NPV is successful, then our liberty will suffer a potentially mortal blow. NPV’s direct election proposal guarantees that presidential campaigns will be governed by the needs and priorities of those in densely populated areas.  How can voters be free when they have no voice in the selection of their executive?

The Founders sought to avoid exactly this situation. They knew what it was like to be a minority group with insufficient representation in their government. Indeed, they had fought a Revolution because they felt tyrannized in that situation. The Founders, more than anyone, wanted to be sure not only that America was self-governing, but also that all Americans would have an adequate voice in their own government. They sought to protect minorities—especially those in small states—from the tyranny of the majority.

The Electoral College system was one eventual result of these discussions. It ensured that both citizens of large and small states—and the states themselves—would have a voice in the selection of the President. The system operates today as a unique combination of democracy and federalism: The states first hold democratic elections within their own borders; next, a second election among the states themselves (as represented by their electors) is held to determine the identity of the President. Candidates can win only if they demonstrate their ability to win multiple, concurrent victories across many states during this latter election. They are thus incentivized to broaden their base of appeal and to obtain support in many parts of the country, among many different types of voters. Candidates lose when they instead focus too exclusively on one region, state, or urban area. Yes, even if that “one state” is Ohio!

A direct election system would not carry the same set of incentives. NPV would allow a plurality of individuals to dictate the winner of the White House—a majority is not required. The decision made by these individuals would control, even if they are disproportionately found in L.A., San Francisco, and New York. Indeed, as a purely pragmatic matter, candidates would find it more efficient to focus on big cities. Why get a few thousand votes in a rural area when you can get several million in a bigger one? They get more bang for their buck with the latter campaign stop.

The unique combination of democracy and federalism in America’s presidential election system works to protect our freedom by ensuring that every voter, everywhere, matters. No part of the country can be safely ignored. NPV’s more purely democratic presidential election process would instead allow big cities to dominate the election process.

And, as Gunning Bedford observed, what, then, would prevent these urban areas from exercising their power to our destruction?

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College.

Additional Law and Liberty links: Liberty Law Talk discussion with Gary Gregg “Defending the Electoral College.”

Tara Ross

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College and a co-author of Under God: George Washington and the Question of Church and State (with Joseph C. Smith, Jr.).

About the Author

Comments

  1. kohler says

    The presidential election system that we have today was not designed, anticipated, or favored by the Founding Fathers but, instead, is the product of decades of evolutionary change precipitated by the emergence of political parties and enactment by 48 states of winner-take-all laws, not mentioned, much less endorsed, in the Constitution.

    The Electoral College is now the set of 538 dedicated party activists, who vote as rubberstamps for presidential candidates. In the current presidential election system, 48 states award all of their electors to the winners of their state. This is not what the Founding Fathers intended.

    The Founding Fathers in the Constitution did not require states to allow their citizens to vote for president, much less award all their electoral votes based upon the vote of their citizens.

    The presidential election system we have today is not in the Constitution, and enacting National Popular Vote would not need an amendment. State-by-state winner-take-all laws to award Electoral College votes, were eventually enacted by states, using their exclusive power to do so, AFTER the Founding Fathers wrote the Constitution. Now our current system can be changed by state laws again.

    Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in section 1 of Article II of the U.S. Constitution– “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

    The constitution does not prohibit any of the methods that were debated and rejected. Indeed, a majority of the states appointed their presidential electors using two of the rejected methods in the nation’s first presidential election in 1789 (i.e., appointment by the legislature and by the governor and his cabinet). Presidential electors were appointed by state legislatures for almost a century.

    Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.

    In 1789, in the nation’s first election, the people had no vote for President in most states, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes.

    The current 48 state-by-state winner-take-all method (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in a particular state) is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. It is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all method.

    The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state’s electoral votes.

    As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all method is used by 48 of the 50 states. States can, and frequently have, changed their method of awarding electoral votes over the years. Maine and Nebraska do not use the winner-take-all method– a reminder that an amendment to the U.S. Constitution is not required to change the way the President is elected.

    The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.

  2. kohler says

    America’s presidential election system does NOT make every voter, everywhere, matter. 80% of the country was ignored in the 2012 presidential election after the conventions.

    The indefensible reality is that more than 99% of campaign attention was showered on voters in just ten states in 2012- and that in today’s political climate, the swing states have become increasingly fewer and fixed.

    Even in the recent handful of states where a presidential vote matters to the candidates, the value of a vote is different.

    Where you live should not determine how much, if at all, your vote matters.

    The current state-by-state winner-take-all method of awarding electoral votes (not mentioned in the U.S. Constitution, but since enacted by 48 states), ensures that the candidates, after the conventions, will not reach out to about 80% of the states and their voters. Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind.

    Presidential candidates concentrate their attention on only a handful of closely divided “battleground” states and their voters. There is no incentive for them to bother to care about the majority of states where they are hopelessly behind or safely ahead to win. 10 of the original 13 states are ignored now. Four out of five Americans were ignored in the 2012 presidential election. After being nominated, Obama visited just eight closely divided battleground states, and Romney visited only 10. These 10 states accounted for 98% of the $940 million spent on campaign advertising. They decided the election. None of the 10 most rural states mattered, as usual. About 80% of the country was ignored –including 19 of the 22 lowest population and medium-small states, and 17 medium and big states like CA, GA, NY, and TX. It was more obscene than the 2008 campaign, when candidates concentrated over 2/3rds of their campaign events and ad money in just 6 states, and 98% in just 15 states. Over half (57%) of the events were in just 4 states (OH, FL, PA, and VA). In 2004, candidates concentrated over 2/3rds of their money and campaign visits in 5 states; over 80% in 9 states; and over 99% of their money in 16 states.

    80% of the states and people have been merely spectators to presidential elections. They have no influence. That’s more than 85 million voters, 200 million Americans, ignored. When and where voters are ignored, then so are the issues they care about most.

    The number and population of battleground states is shrinking.

    Policies important to the citizens of non-battleground states are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.

    In apportionment of federal grants by the executive branch, swing states received about 7.6% more federal grants and about 5.7% more federal grant money between 1992 and 2008 than would be expected based on patterns in other states.

    During the course of campaigns, candidates are educated and campaign about the local, regional, and state issues most important to the handful of battleground states they need to win. They take this knowledge and prioritization with them once they are elected. Candidates need to be educated and care about all of our states.

    Compare the response to hurricane Katrina (in Louisiana, a “safe” state) to the federal response to hurricanes in Florida (a “swing” state) under Presidents of both parties. President Obama took more interest in the BP oil spill, once it reached Florida’s shores, after it had first reached Louisiana. Some pandering policy examples include ethanol subsidies, Steel Tariffs, and Medicare Part D. Policies not given priority, include those most important to non-battleground states – like water issues in the west, and Pacific Rim trade issues.

  3. kohler says

    Most Americans don’t care whether their presidential candidate wins or loses in their state . . . they care whether he/she wins the White House. Voters want to know, that even if they were on the losing side, their vote actually was directly and equally counted and mattered to their candidate. Most Americans think it’s wrong for the candidate with the most popular votes to lose. We don’t allow this in any other election in our representative republic.

    The appropriately named National Popular Vote bill would change current state winner-take-all laws that award all of a state’s electoral votes to the candidate who get the most popular votes in each separate state (not mentioned in the U.S. Constitution, but since enacted by 48 states), to a system guaranteeing the majority of Electoral College votes for, and the Presidency to, the candidate getting the most popular votes in the entire United States.

    The bill preserves the constitutionally mandated Electoral College and state control of elections. It ensures that every vote is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.

    Under National Popular Vote, every vote, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count. The candidate with the most popular votes in all 50 states and DC would get the needed 270+ Electoral College votes from the enacting states. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes.

    It would not be a national direct election process. We would still be a republic, in which citizens continue to elect the President by a majority of Electoral College votes by states, to represent us and conduct the business of government in the periods between elections.

    States have the responsibility and power to make all of their voters relevant in every presidential election and beyond.
    Federalism concerns the allocation of power between state governments and the national government. The National Popular Vote bill concerns how votes are tallied, not how much power state governments possess relative to the national government. The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, or national lines (as with the National Popular Vote).

    National Popular Vote would give a voice to the minority party voters in each state. Now their votes are counted only for the candidate they did not vote for. Now they don’t matter to their candidate.

    And now votes, beyond the one needed to get the most votes in the state, for winning in a state are wasted and don’t matter to candidates. Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

    With National Popular Vote, every vote, everywhere would be counted equally for, and directly assist, the candidate for whom it was cast.

    Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states. The political reality would be that when every vote is equal, the campaign must be run in every part of the country.

    When and where voters matter, then so do the issues they care about most.

    In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided).
    Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in recent closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%. Americans believe that the candidate who receives the most votes should win.

    The bill has passed 31 state legislative chambers in 21 small, medium, and large states with 243 electoral votes. The bill has been enacted by 9 jurisdictions with 132 electoral votes – 49% of the 270 necessary to go into effect.

    NationalPopularVote

  4. kohler says

    With the current system of electing the President, no state requires that a presidential candidate receive anything more than the most popular votes in order to receive all of the state’s electoral votes.

    Not a single legislative bill has been introduced in any state legislature in recent decades (among the more than 100,000 bills that are introduced in every two-year period by the nation’s 7,300 state legislators) proposing to change the existing universal practice of the states to award electoral votes to the candidate who receives a plurality (as opposed to absolute majority) of the votes (statewide or district-wide). There is no evidence of any public sentiment in favor of imposing such a requirement.

    Since 1824 there have been 16 presidential elections in which a candidate was elected or reelected without gaining a majority of the popular vote.– including Lincoln (1860), Wilson (1912 and 1916), Truman (1948), Kennedy (1960), Nixon (1968), and Clinton (1992 and 1996).

  5. kohler says

    With the current state winner-take-all system of awarding electoral votes, winning a bare plurality of the popular vote in the 11 most populous states, containing 56% of the population, could win the Presidency with a mere 23% of the nation’s votes!

    But the political reality is that the 11 largest states rarely agree on any political question. In terms of recent presidential elections, the 11 largest states include five “red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.

    In 2004, among the 11 most populous states, in the seven non-battleground states, % of winning party, and margin of “wasted” popular votes, from among the total 122 Million votes cast nationally:
    * Texas (62% Republican), 1,691,267
    * New York (59% Democratic), 1,192,436
    * Georgia (58% Republican), 544,634
    * North Carolina (56% Republican), 426,778
    * California (55% Democratic), 1,023,560
    * Illinois (55% Democratic), 513,342
    * New Jersey (53% Democratic), 211,826

    To put these numbers in perspective, Oklahoma (7 electoral votes) alone generated a margin of 455,000 “wasted” votes for Bush in 2004 — larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

  6. kohler says

    In 2008, of the 25 smallest states (with a total of 155 electoral votes), 18 received no attention at all from presidential campaigns after the conventions. Of the seven smallest states with any post-convention visits, Only 4 of the smallest states – NH (12 events), NM (8), NV (12), and IA (7) – got the outsized attention of 39 of the 43 total events in the 25 smallest states. In contrast, Ohio (with only 20 electoral votes) was lavishly wooed with 62 of the total 300 post-convention campaign events in the whole country.

    In the 25 smallest states in 2008, the Democratic and Republican popular vote was almost tied (9.9 million versus 9.8 million), as was the electoral vote (57 versus 58).

    In 2012, 24 of the nation’s 27 smallest states received no attention at all from presidential campaigns after the conventions.- including not a single dollar in presidential campaign ad money after Mitt Romney became the presumptive Republican nominee on April 11. They were ignored despite their supposed numerical advantage in the Electoral College. In fact, the 8.6 million eligible voters in Ohio received more campaign ads and campaign visits from the major party campaigns than the 42 million eligible voters in those 27 smallest states combined.

    Now with state-by-state winner-take-all laws (not mentioned in the U.S. Constitution, but since enacted by 48 states), presidential elections ignore 12 of the 13 lowest population states (3-4 electoral votes), that are non-competitive in presidential elections. 6 regularly vote Republican (AK, ID, MT, WY, ND, and SD), and 6 regularly vote Democratic (RI, DE, HI, VT, ME, and DC) in presidential elections. Voters in states that are reliably red or blue don’t matter. Candidates ignore those states and the issues they care about most.

    Kerry won more electoral votes than Bush (21 versus 19) in the 12 least-populous non-battleground states, despite the fact that Bush won 650,421 popular votes compared to Kerry’s 444,115 votes. The reason is that the red states are redder than the blue states are blue. If the boundaries of the 13 least-populous states had been drawn recently, there would be accusations that they were a Democratic gerrymander.

    Support for a national popular vote is strong in every smallest state surveyed in recent polls among Republicans, Democrats, and Independent voters, as well as every demographic group. Support in smaller states (3 to 5 electoral votes): AK -70%, DC -76%, DE –75%, ID -77%, ME – 77%, MT- 72%, NE – 74%, NH–69%, NE – 72%, NM – 76%, RI – 74%, SD- 71%, UT- 70%, VT – 75%, WV- 81%, and WY- 69%.

    Among the 13 lowest population states, the National Popular Vote bill has passed in nine state legislative chambers, and been enacted by 3 jurisdictions.

  7. kohler says

    With National Popular Vote, every vote would be equal. Candidates would reallocate their time, the money they raise, and their ad buys to no longer ignore 80% of the states and voters.

    16% of Americans live in rural areas.

    With National Popular Vote, big cities would not get all of candidates’ attention, much less control the outcome.
    The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities (going as far down as Arlington, TX) is only 15% of the population of the United States.

    Suburbs and exurbs often vote Republican.

    Any candidate who ignored, for example, the 16% of Americans who live in rural areas in favor of a “big city” approach would not likely win the national popular vote.

    If big cities controlled the outcome of elections, the governors and U.S. Senators would be Democratic in virtually every state with a significant city.

    A nationwide presidential campaign, with every vote equal, would be run the way presidential candidates campaign to win the electoral votes of closely divided battleground states, such as Ohio and Florida, under the state-by-state winner-take-all methods. The big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami do not receive all the attention or control the outcome in Ohio and Florida.

    The itineraries of presidential candidates in battleground states (and their allocation of other campaign resources in battleground states) reflect the political reality that every gubernatorial or senatorial candidate knows. When and where every vote is equal, a campaign must be run everywhere.

    With National Popular Vote, when every vote is equal, everywhere, it makes sense for presidential candidates to try and elevate their votes where they are and aren’t so well liked. But, under the state-by-state winner-take-all laws, it makes no sense for a Democrat to try and do that in Vermont or Wyoming, or for a Republican to try it in Wyoming or Vermont.

    Even in California state-wide elections, candidates for governor or U.S. Senate don’t campaign just in Los Angeles and San Francisco, and those places don’t control the outcome (otherwise California wouldn’t have recently had Republican governors Reagan, Dukemejian, Wilson, and Schwarzenegger). A vote in rural Alpine county is just an important as a vote in Los Angeles. If Los Angeles cannot control statewide elections in California, it can hardly control a nationwide election.

    In fact, Los Angeles, San Francisco, San Jose, and Oakland together cannot control a statewide election in California.

    Similarly, Republicans dominate Texas politics without carrying big cities such as Dallas and Houston.

    There are numerous other examples of Republicans who won races for governor and U.S. Senator in other states that have big cities (e.g., New York, Illinois, Michigan, Pennsylvania, and Massachusetts) without ever carrying the big cities of their respective states.

    With a national popular vote, every vote everywhere will be equally important politically. There will be nothing special about a vote cast in a big city or big state. When every vote is equal, candidates of both parties will seek out voters in small, medium, and large towns throughout the states in order to win. A vote cast in a big city or state will be equal to a vote cast in a small state, town, or rural area.

    Candidates would need to build a winning coalition across demographics. Candidates would have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as waitress mom voters in Ohio.

    With National Popular Vote, every vote, everywhere, would be politically relevant and equal in presidential elections. Wining states would not be the goal. Candidates would need to care about voters across the nation, not just undecided voters in the current handful of swing states.

    The main media at the moment, TV, costs much more per impression in big cities than in smaller towns and rural area. Candidates get more bang for the buck in smaller towns and rural areas.

    In the 2012 campaign, “Much of the heaviest spending has not been in big cities with large and expensive media markets, but in small and medium-size metropolitan areas in states with little individual weight in the Electoral College: Cedar Rapids and Des Moines in Iowa (6 votes); Colorado Springs and Grand Junction in Colorado (9 votes); Norfolk and Richmond in Virginia (13 votes). Since the beginning of April, four-fifths of the ads that favored or opposed a presidential candidate have been in television markets of modest size.” – New York Times

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