January 7, 2017
Despite its flaws and its anti-democratic character, the electoral college has its defenders. Some claim that it hasn’t messed up as often or as badly as its detractors claim, which is a bit short of justifying its continued existence. An extreme form of that argument is the comment by George Will that, although in the five elections of this century, the winner has lost twice, no big deal: "Two is 40 percent of five elections, which scandalizes only those who make a fetish of simpleminded majoritarianism." Count me among the simpleminded; a 40% failure rate sounds like a lot.
Others argue that it would be unfair to allow all those votes in California to decide the election. One could argue in rebuttal that it was unfair to allow Texas’ 38 electoral votes, awarded by a margin of 9% of its popular vote, to decide the election, which it did last year. Then there is the argument that we shouldn’t allow cities to determine the outcome, but should we award votes to acreage?
Reference to the original design is of little aid, as it no longer describes the process. Present-day electors are not the wise men of Hamilton’s argument in Federalist 68, and political parties, which were unknown and unwanted, now control the system. The present-day electoral system resembles the Hamiltonian concept in that it interferes with popular, national election but, as we have seen this year, it too can bring a demagogue to power.
Republicans support the electoral college because it helps Republicans, just as Democrats attack it for the same reason. Leaving partisanship aside, can it be justified? Here’s a reasoned defense of the modern electoral college by a serious observer,  with some comments.
"1) Certainty of Outcome
"A dispute over the outcome of an Electoral College vote is possible—it happened in 2000—but it’s less likely than a dispute over the popular vote. The reason is that the winning candidate’s share of the Electoral College invariably exceeds his share of the popular vote." That makes no sense. The second sentence, while true, doesn’t support the first. I don’t know of any instance of the national popular vote’s being challenged but, in addition to 2000, the electoral vote was challenged in 1876 (and in 2016, but this article predated that election).
" . . . Because almost all states award electoral votes on a winner-take-all basis, even a very slight plurality in a state creates a landslide electoral-vote victory in that state. A tie in the nationwide electoral vote is possible because the total number of votes—538—is an even number, but it is highly unlikely." If the issue is avoiding ties, then a popular vote would be better, as Judge Posner acknowledges: "
Of course a tie in the number of popular votes in a national election in which tens of millions of votes are cast is even more unlikely." So what is the problem?
"[I]f the difference in the popular vote is small, then if the winner of the popular vote were deemed the winner of the presidential election, candidates would have an incentive to seek a recount in any state (plus the District of Columbia) in which they thought the recount would give them more additional votes than their opponent. The . . . result would be debilitating uncertainty, delay, and conflict—look at the turmoil that a dispute limited to one state, Florida, engendered in 2000." Recounts are demanded under the present system. The turmoil in Florida was because of the electoral vote; whatever the final count in Florida, Gore would have won the national popular vote.
"2) Everyone’s President
"The Electoral College requires a presidential candidate to have transregional appeal. No region (South, Northeast, etc.) has enough electoral votes to elect a president. . . . This is a desirable result because a candidate with only regional appeal is unlikely to be a successful president." It doesn’t seem likely that anyone could win the popular vote with only regional support, if that word is used realistically. Advocates of the electoral system point to the sources of Hillary Clinton’s votes as proof that her support was over-concentrated, but she carried states on the west coast, the mountain west, midwest, northeast and upper south.
"The residents of the other regions are likely to feel disfranchised—to feel that their votes do not count, that the new president will have no regard for their interests, that he really isn’t their president." Leaving aside the reference to regions, that describes millions of 2016 voters.
"3) Swing States
"The winner-take-all method of awarding electoral votes induces the candidates . . . to focus their campaign efforts on the toss-up states . . . . Voters in toss-up states are more likely to pay close attention to the campaign—to really listen to the competing candidates— knowing that they are going to decide the election. They are likely to be the most thoughtful voters, on average (and for the further reason that they will have received the most information and attention from the candidates), and the most thoughtful voters should be the ones to decide the election." His argument is an odd, semi-populist variation on the original principle of the electoral college: the best people should decide. Here it’s the residents of a handful of states; Judge Posner knows better than to praise the electors.
In swing states last year, voters were more divided than most, but evidence of their thoughtfulness is lacking. One could argue as easily that a system which allows a few states to determine the outcome increases the chance that demagoguery will succeed.
"4) Big States
"The Electoral College restores some of the weight in the political balance that large states (by population) lose by virtue of the mal-apportionment of the Senate decreed in the Constitution. This may seem paradoxical, given that electoral votes are weighted in favor of less populous states. . . . But winner-take-all makes a slight increase in the popular vote have a much bigger electoral-vote payoff in a large state than in a small one. . . ." True, but it also results in many votes being meaningless.
What is the benefit? "So, other things being equal, a large state gets more attention from presidential candidates in a campaign than a small states does." That isn’t entirely consistent with the Judge’s theory of attention to swing states. In any case, his model isn’t realistic; safe states are ignored, even if large.
"5) Avoid Run-Off Elections
"The Electoral College avoids the problem of elections in which no candidate receives a majority of the votes cast. . . There is pressure for run-off elections when no candidate wins a majority of the votes cast; that pressure, which would greatly complicate the presidential election process, is reduced by the Electoral College, which invariably produces a clear winner." The electoral vote isn’t always clear, but the tendency of the electoral vote to be decisive and known early offers the best argument for the present system.
There are several solutions to the problem posed. We could declare the winner of a plurality of votes elected, which would produce the same result as the present system in many elections (seven in the Twentieth Century), apart from the illusion of a majority created by electoral votes. It also would avoid electing someone who lost the popular vote. A runoff election would be more decisive but might simply repeat the result by electing the winner of the plurality, and would cause delay. An "instant runoff," in which voters pick first and second choices, would be better.
I’ll contribute another argument for retaining the electoral college: Vote counting is much faster now than in the past, but the exact result would not be known for some time. However, since the beginning of the Twentieth Century, the popular vote margin has fallen below 500,000 only once, so it’s unlikely that the outcome would be in doubt for long. Also, the electoral college doesn’t eliminate delay. Technically, the winner isn’t known until the electors meet, this time on December 19. Hyper technically, the result isn’t known until the electoral vote is approved by Congress, which occurred yesterday.
The 2000 outcome was in doubt until December 12, when the Supreme Court ended the Florida recount. This time, there was some uncertainly due to recounts. Both were the product of the electoral system.
Judge Posner summed up as follows: "Against these reasons to retain the Electoral College the argument that it is undemocratic falls flat." The reasons offered hardly overcome the principle that the person with the most votes should win. That is the principle on which virtually every other election is run.
The present system might be justified by the theory that votes should be by states, that federalism somehow mandates that the leader of a nation be chosen by a coalition of states. However, states, as such, do not vote; we merely allow them, by means of the winner-takes-all rule, to disfranchise a minority of their voters. An intermediate position, taken by Nebraska and Maine, is to award some electoral votes by Congressional District. However, even leaving aside the effect of gerrymandering, any jurisdictional boundary within the country, including those between states, is arbitrary and, in this context, irrelevant. Only people are natural units. When we elect a president, we should give effect to all of their votes.
1. The Washington Post, 12/16/16
2. Richard Posner, "In Defense of the Electoral College,"