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Mar 28 2014

End of the road near for the electoral college?

As close followers of US politics know, the US does not elect its president by direct popular vote. Instead it has an institution called the Electoral College whose members vote for the president. The electoral college consist of 538 votes apportioned among the states corresponding exactly to the total of their members of the House of Representatives (that varies with the population) and comes to 435 total plus two each for the Senate, that gives 100 more. The extra three votes consist of two for Puerto Rico and one are for Washington DC. This means that the winner has to get 270 electoral college votes.

Each state gets to decide how its electoral college members should vote for the presidency and almost all of them have a winner-take-all policy in which whichever candidate gets the plurality within the state gets awarded all the votes. This can lead to a situation in which one candidate can get the majority in the electoral college while a different one gets the majority vote nationally. This happens rarely but the most recent case was in the 2000 election.

Some have argued that the electoral college is an anachronism that should be abandoned but changing it requires amending the constitution, and that is unlikely to happen since the change is fiercely rejected by especially those so-called ‘swing states’ such as Ohio and Florida that love the enormous and undeserved attention they get during the elections.

But there is a way out of this problem and that is the National Popular Vote Compact in which states are invited to change their internal rules so as to give all their votes, not to the winner in their particular state, but to the winner of the national vote. If states that have a total of 270 electoral college votes sign on, then the old system gets essentially bypassed.

Ben Jacobs writes that we are slowly getting there. New York seems to be on the verge of joining nine other states and Washington DC, making 165 votes in all. Apparently Oklahoma and Connecticut are moving towards it too. The movement only started in 2007 so this is pretty rapid progress.

Jacobs thinks that 2016 may be the last election under the old system but I disagree. As it gets closer to the magic 270 number, opposition will get fiercer and progress will slow, if not stall. It may eventually win out but I suspect it will take much longer than Jacobs thinks.

29 comments

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  1. 1
    dano

    I find this quite interesting and was also unaware of the potential change. Thank you Mano.

  2. 2
    brucegee1962

    I hadn’t heard of this Vote Compact — the way out that I had heard of was that states would allocate their electoral votes proportionately, rather than winner-take-all. This would have approximately the same effect, but a bit less elegantly.

    As a person lucky enough to live in a purple state, I was discussing this recently with a fellow Democrat as a strong incentive not to move. For someone who cares deeply about politics, I wonder how many might be influenced to live somewhere where their vote makes an actual difference? It isn’t just presidential politics, either — for Senate and even House races, politically responsible people with the ability to choose should seek out the most closely divided states and districts.

  3. 3
    OverlappingMagisteria

    I suspect this will run into opposition once more people hear about it. Although the end result seems fine, there is something that seems strange about letting voters in other states decide your state’s electoral votes. I don’t think the public would be too happy with this.

  4. 4
    JNR

    The three additional votes do not come from Puerto Rico and the District of Columbia. They come only from DC. District residents were given the right to vote for President in the 60s, but they cannot have more electoral votes than the state with the least number of votes. This number is 3 since all states get 2 (one per senator) and the others determined by their number of House members, as you correctly pointed out

  5. 5
    Chiroptera

    The extra three votes consist of two for Puerto Rico and one for Washington DC.

    A correction: the three extra votes are all for D.C, The twenty-third amendment to the US constitution gives DC the number of electoral votes it would have if it were a state (with the proviso that it doesn’t get more electoral votes than the least populated state). That would include two for the Senators it would have, and one for the representative.

    Puerto Rico has no representation in the electoral college.

    One thing (among others) I would like about abolishing the electoral college is that you can then very simply allow all US citizens the right to vote for President, including Puerto Ricans. (Which is another reason I would like to, someday in the far, far future, see the House of Representatives no longer apportioned among the states but elected nationwide by all citizens by party proportionality.)

  6. 6
    Gene Szedenits

    I can not find the article now but around the time of the 2000 election I read an article defending the electoral winner possibly not matching the popular winner as a feature not a bug of compartmentalized voting systems.

    The argument was that such a system somewhat safeguarded the particular concerns of a less populous compartment(state) from being ignored and trampled by more populous compartments. Of course this assumes that the compartments have particular concerns in the first place rather than all having the same ones and so the same general opinions. The more homogeneous one assumes the national population is the less sense does compartmentalized voting make. But if the states are sufficiently distinct from one another then such a system may have some merit.

    Now if we could universally eliminate gerrymandering…

  7. 7
    Mano Singham

    @JNR,

    Thanks for the correction. I have updated the post accordingly.

  8. 8
    Mano Singham

    The problem is that the number of votes has ceased to be the factor. Texas, New York, and California are currently largely ignored because they are assumed to be locked up for one party. Now the only issue is if you are a so-called swing state. Of course, large swing states are more crucial than smaller ones, but a small swing state gets more attention than a big non-swing state.

  9. 9
    doublereed

    Honestly once things like this get started rolling, it’s pretty hard to stop. The states are not nearly as gridlocked as the federal government because they haven’t been overwhelmed by moneyed interests like Washington has.

    States look at other states, especially neighboring states, and try to mimic each other. If there are already 170 votes, then the legislators from nearly all the neighboring states look at it and consider it. Momentum for this sort of thing doesn’t come so much from politics as awareness.

  10. 10
    Seth

    @3, OverlappingMagisteria:

    One key detail is that the Voter Compact only takes effect when the crucial number of states have adopted it, so that there is no election in which a minority of electoral votes get apportioned via the national breakdown. That won’t stop regressives from arguing ‘States’ Rights!!!elebenty!!one!’ up and down, but it’s an effective counter-argument to your point.

  11. 11
    Rob Grigjanis

    Important maybe, but doesn’t it pale in comparison with campaign financing? Like putting a bandage on a compound fracture.

  12. 12
    OverlappingMagisteria

    @10, Seth

    Yea I agree. Once the right number of states adopt it, then it works out and it is fair…. as long as you understand it and how it works. I’m saying that you’re average citizen who doesn’t think it through is going to say “My state voted Blue cause the rest of the country voted blue, even though we are a red state?” If they sit down and think about it, maybe theyd get the point, but most people won’t do that.

    It’s a fine solution, but it’s really clunky and looks wierd at first glance.

  13. 13
    doublereed

    Huh? Only the states that adopt it do it. There’s no states’ rights issue. The whole idea is that the state willfully gives up its electoral college to the popular vote.

    But the moment it activates is the moment that we don’t even care about the electoral college because it becomes instantly obsolete. I don’t imagine that much opposition simply because I think it’s a rather apolitical issue, unlike say, money in politics.

  14. 14
    moarscienceplz

    The EC benefits rural states by giving more weight to each vote. California had 7,854,285 votes for Obama in 2012 and 55 electors. So each voter got 1/142,805 of an elector. Montana had 267,928 votes for Romney and 3 electors. So each voter got 1/89,309 of an elector. Romney got about 55% of the votes in Montana and Obama got 60% in CA, which does skew the fractions a small amount, but it still holds true that a winning vote in a tiny state is worth much more than a winning vote in a big state. Since rural states are far and away Republican states, I can’t see the GOP accepting the idea of ending the EC.

  15. 15
    Trebuchet

    Sorry Mano, but I think Betteridge’s Law applies.

    I’ve long favored a system in which EC votes are distributed by congressional district, with the final two votes going to the at-large vote in the state. I think that’s actually used in a state or two. Unfortunately, it is highly vulnerable to Gerrymandering so until that problem is fixed, no change.

  16. 16
    left0ver1under

    One argument for keeping it would be a regionally strong third party candidate. If such a person won more than a third of the college and no candidate had 50%, would there be a run off as is done in European and South American democracies?

    Then again, it’s not the college that’s the US’s problem, it’s the two party system. When there is always a majority government, corruption is far easier because there’s only one party to bribe or intimidate. A two party system is as corrupt as a one party system.

  17. 17
    lpetrich

    I hope that it succeeds. It will be nice to work around that bit of superannuated political stupidity.

    I recall from somewhere that in 2000, some Republicans were preparing to denounce the Electoral College if GWB got the popular vote but Al Gore got the electoral vote.

    As to proportional representation in the House, that can be done state-by-state without amending the Constitution.

  18. 18
    Mano Singham

    @leftOver1under,

    There is no provision for a run-off. If no candidate gets a majority in the first vote of the Electoral College, this article explains what the process is.

  19. 19
    doublereed

    @14 moarscienceplz

    That’s incorrect because of the winner-takes-all system. It really does not favor the rural that strongly at all. Most states have a mix of city and rural areas, like say Virginia. But city areas are always denser than rural areas. In Virginia the Northern part is considerably denser than the whole Southern part. Virginia barely went for Obama. ALL of Virginia’s votes went to Obama. So the rural people essentially got no vote at all. Compare that to Maryland, which has plenty of conservative and rural parts, but the democratic voters of Baltimore and Greater DC dominate so heavily that it always votes blue.

    What the electoral college really does, is favor swing states, not rural vs city states. Because nearly all states are a mix or rural and city.

  20. 20
    Chiroptera

    doubleheader, #19:

    When I was in college, I read an analysis that claimed that with the present winner take all system, a citizen of a large state has more voting power than one in a small state. The reason is that even those a citizen of a large state has less chance of being the swing voter that decides her state election (the measure of voting strength in game theory/voting theory), one the state’s election is decide all the electoral votes go to the one candidate. So overall a citizen of a large state is more likely to be the deciding vote in the national election.

    I don’t know if other people wrote analyses that came to a different conclusion.

  21. 21
    oldgulph

    “The bottom line is that the electors from those states who cast their ballot for the nationwide vote winner are completely accountable (to the extent that independent agents are ever accountable to anyone) to the people of those states. The NPV states aren’t delegating their Electoral College votes to voters outside the state; they have made a policy choice about the substantive intelligible criteria (i.e., national popularity) that they want to use to make their selection of electors. There is nothing in Article II (or elsewhere in the Constitution) that prevents them from making the decision that, in the Twenty-First Century, national voter popularity is a (or perhaps the) crucial factor in worthiness for the office of the President.” – Vikram David Amar

    Most Americans don’t ultimately care whether their presidential candidate wins or loses in their state or district . . . 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 would be wrong for the candidate with the most popular votes to lose. We don’t allow this in any other election in our representative republic.

    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 or past 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%.

    In state polls of voters each with a second question that specifically emphasized that their state’s electoral votes would be awarded to the winner of the national popular vote in all 50 states, not necessarily their state’s winner, there was only a 4-8% decrease of support.

    Support for a National Popular Vote
    South Dakota — 75% for Question 1, 67% for Question 2
    Connecticut — 74% for Question 1, 68% for Question 2
    Utah — 70% for Question 1, 66% for Question 2

    More than 2,110 state legislators (in 50 states) have sponsored and/or cast recorded votes in favor of the National Popular Vote bill. The bill has passed 33 state legislative chambers in 22 rural, small, medium, and large states with 250 electoral votes.

    NationalPopularVote

  22. 22
    dmcclean

    The point Prof. Singham makes about opposition being likely to intensify as the threshold is approached seems likely to be correct.

    The compact has another hurdle to clear, besides those mentioned in the OP.

    Article I, Section 10 provides, inter alia, that “No State shall, without the Consent of Congress, … enter into any Agreement or Compact with another State … .”

    The Supreme Court has held (for reasons I don’t understand) that this requirement only applies to those compacts which intrude on the domain of the federal government. Whether the NPVIC does so is a matter of controversy.

    It seems clear to me that such an important agreement among the states would trigger the consent provision, but I’m basing that on the plain language and I am honestly not that familiar with the history of interpretation of the clause.

  23. 23
    oldgulph

    The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
    “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”

    The National Popular Vote compact would not “encroach upon or interfere with the just supremacy of the United States” because there is simply no federal power — much less federal supremacy — in the area of awarding of electoral votes in the first place.

  24. 24
    dmcclean

    I understand that argument, oldgulph. I don’t think it is conclusive, though. Nor do I think pragmatically that it is likely to carry the day. I suspect if the court heard a case about this that they might expand the scope of compacts that they think the clause applies to.

    The reason I think it isn’t conclusive is because “there is simply no federal power — much less federal supremacy — in the area of awarding of electoral votes in the first place” is an exaggeration.

    Article II gives the state legislatures free rein in choosing electors, they needn’t even hold an election. But section 2 of the 14th amendment could be read to suggest that an election must be held, at least if the state in question doesn’t wish to forfeit its representation in the house and the corresponding electoral votes. Does allowing non-residents to vote in your election of electors (as the NPVIC requires) abridge the right to vote of the people who are residents? It seems that it might, because, for (extreme) example, allowing only white non-residents to vote in your election of electors seems that it would.

    Could the states, without the consent of congress, enter into An Agreement Among the States to Elect the President by National Popular White Vote, which provides that each state awards electors based on votes by all of its residents plus the votes by all the white residents of the other states? Why not? They wouldn’t be violating the letter of the 14th amendment, or the 15th, 19th, or 26th.

  25. 25
    StevoR : Free West Papua, free Tibet, let the Chagossians return!

    End of the road near for the electoral college?

    If so, then its about dern time! Hope so.

  26. 26
    oldgulph

    With National Popular Vote, non-residents would not be voting in another state’s election. We do and would vote state by state.

    The compact would treat votes cast in all 50 states and the District of Columbia equally.

  27. 27
    dmcclean

    The second sentence is true, which shows that the first is false. Votes cast in all 50 states would determine the allocation of, say, Massachusetts’ electors. So non-residents of Massachusetts would be voting in the election for Massachusetts’ electors.

  28. 28
    oldgulph

    With National Popular Vote, non-residents would not be voting in another state’s election.

    From the “Agreement Among the States to Elect the President by National Popular Vote”

    “Each member state shall conduct a statewide popular election for President and Vice President of the United States.”

    “The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.””

    “The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.”

    “elector slate” shall mean a slate of candidates who have been nominated in a state for the position of presidential elector in association with a presidential slate

  29. 29
    dmcclean

    You are parsing extremely finely if you are parsing a difference between “voting in” a state’s election and “having one’s vote counted in determining the outcome of” that election.

    My points above–including the hypothetical of the Agreement Among the States to Elect the President by National Popular White Vote–apply, mutatis mutandis, if you replace all references to “voting” with references to “having one’s vote counted in determining the outcome of” an election of electors.

    Would you please explain whether you distinguish the case of the Agreement Among the States to Elect the President by National Popular White Vote? If you do distinguish it, would you explain how that is consistent with your position that “there is simply no federal power — much less federal supremacy — in the area of awarding of electoral votes in the first place.”? (emphasis mine)

    My contention is that there is such a federal power, which distinguishes the white vote example, though it is limited. And thus that there may in fact be a case to be made that the compacts clause approval requirement is triggered by the NPVIC. And further that, as a matter of prognostication and not of law, that the court is likely to find that the NPVIC triggers the compacts clause.

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