Posts © 2011-2012 by Gerald G. Day







Monday, January 23, 2017

January 23, 2017
The recent election has stimulated a good deal of discussion about the Electoral College. It’s tempting to say that the conclusive argument against it is that we ended up with President Donald Trump, a symbol and product of the country’s decline. However, let’s consider another serious argument in favor of it. Google Alert has turned up numerous comments, about equally divided between pro and con. One of the more ambitious of the defenses of the electoral system appeared on the web site of The New American, authored by Steven Byas.[3]  Its approach is scholarly, with emphasis on the Founders’ intent. Here is the gist:
1. The popular vote might be too close. Mr Byas imagines a situation in which the candidates are separated by only 4,123 popular votes. (He put "popular vote" in quotes the first time he used the term, as it were some foreign or dubious concept). He envisions chaos as a result of the close vote. The chaos — recounting — occurs now. It would be worse under his scenario, but the popular vote margin has not been that low since 1880, when there were far fewer voters; the total vote that year was 9,217,410, compared to 137,079,706 last year.[4]  He thinks that the electoral vote would avoid the recount, and it might, but it could be tied, which would lead to another anti-democratic mechanism in the Constitution, election by the House, voting as states.
That paper-thin margin isn’t likely to recur; it would be even less likely to occur if there were more votes. Ending vote suppression by the states would help to increase the total.
2. The electoral system was supported by Hamilton. That is true, although Mr. Byas cites Federalist No. 83, when the passage quoted occurs in No. 68.
3. The Electoral College was "an important element in [the Founders’] overall goals of creating a republic, not a democracy. . . ." Citing Madison in Federalist 10, Mr. Byas draws a distinction between a "pure" democracy which, according to Madison, is "a society consisting of a small number of citizens, who assemble and administer the government in person," and a "republic," by which Madison means "a government in which the scheme of representation takes place."
Madison and Byas each sometimes refer to "pure" (direct) democracy, and sometimes drop the qualifier; as a result it’s a little difficult to follow their arguments. There was and is no prospect of this nation’s ever having the pure form, so it isn’t clear what Mr. Byas has in mind in positing an opposition between republic and democracy. Madison was, in part, justifying the size of the Union; to him, one of the differences between a democracy and a republic was "the greater number of citizens, and greater sphere of country, over which the latter may be extended." He wasn’t discussing the Electoral College. In the present case, I suspect the supposed dichotomy has something to do with states’ rights.
The best case that can be made on this point is that choosing the President through the Electoral College is analogous to making laws through representatives; each places a decision-maker between the people and the ultimate decision. However, the electoral system contemplated in the Federalist no longer exists, and the analogy isn’t persuasive; we can’t make laws for the nation by an assembly of citizens, but voters can select a president.
Mr. Byas quotes another Founder in support of his anti-democratic definition of a republic: "Upon leaving the Constitutional Convention, Benjamin Franklin was asked what form of government the delegates had given the United States. Franklin’s response was, ‘A republic if you can keep it’." However, in its simplest and least tendentious sense, a republic is a form of government in which the head of state is in some fashion chosen by the people, as opposed to a monarchy.[5]  Franklin so used it, as his comment was an answer to this question: "Well, Doctor, what have we got, a republic or a monarchy?"
Even Madison, in Federalist 39, more or less adopted that definition: "If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be . . . a government which derives all its powers directly or indirectly from the great body of the people . . . . It is ESSENTIAL to such a government that it be derived from the great body of the society. . . . It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people . . . ." The electoral college is an undemocratic institution within a republican government; it does not define the latter, nor is it essential to it.
4. The government need not consider the will of the majority. "Perhaps the most serious misunderstanding about this entire issue is the mistaken belief that the purpose of government is to create the conditions for the will of the majority to prevail. . . . The very reason that government should even exist is to advance liberty, and to protect the lives and property of its people." (Even if true, what of it? That isn’t made clear). Mr. Byas concedes that "for a government to be legitimate, it must obtain its ‘just’ powers from the consent of the governed." However, "the only powers government can justly exercise, even those granted them by the governed, are those that carry out the legitimate purposes of government."
What has that to do with the electoral college? "So in choosing the president, like every other action taken in connection with government, protecting the life, liberty, and property of the people is its purpose, rather than making sure the will of the majority prevails." The Electoral College can cause the will of the majority not to prevail; it has nothing to do with protecting life, liberty and property unless the people are equated to a radical mob and the electors are assumed to be from the propertied class. There is more than a hint of such an attitude in the creation and promoting of the Constitution but, like toleration of slavery, it is an attitude we need not honor.
5. Popular election would lead to authoritarian government. "If the United States were to replace the Electoral College with a national popular election, we could expect an intensification of the current drift toward an imperial presidency." Mr. Byas’ article was written on January 12, but he doesn’t seem to detect any authoritarian tendency in the most recent product of the present method of election.
"The president would be the only public official chosen by a national popular vote. This would dangerously tilt the powers of the federal government even more so in favor of the executive." How? "With a national popular election ‘mandate,’ presidents would make the argument that they represent ‘the will of the people,’ and that Congress should fall in line." (This runs contrary to the usual justification of the electoral vote, that it provides a mandate). Some presidents receive only a plurality of popular votes; doesn’t the electoral vote then provide a dangerous, undeserved mandate?
6. Popular election would cause administrative problems. "Elections of the president by a direct and national popular vote would raise many serious questions — such as what to do about recounts and voter fraud, and even the question of who would count the votes." All of those concerns exist now, but they might be magnified under popular election. "No doubt a national election commission of some sort would be required, and the states would likely not accept that." He’s right about the need for national supervision of federal elections, and probably about state resistance. At present, the presidential vote is at the mercy of the states, and there is no right under federal law to vote for president. That is a ludicrously backward situation. Federal oversight of federal elections is needed, to prevent vote suppression, bring uniformity to registration and to vote counting, and to prevent gerrymandering.
7. "The Electoral College Preserves Federalism." Mr. Byas argues that "[b]ecause the government of the United States was to be a federal republic — or what is sometimes called a compound republic — the states were expected to elect both the Congress and the president." I’m not sure what he refers to; the states, even in the unamended Constitution, elected Senators only. "The selection of electors followed this pattern created in which the people in the states elect members of the House of Representatives, and the state legislatures of each state choose the members of the Senate."
That doesn’t quite track; also, the latter provision hasn’t applied since 1913, when the Thirteenth Amendment was ratified. What he seems to be saying is that the electoral college is legitimate because it mirrors the makeup of Congress in that each state has two electoral votes (and two Senators) regardless of population, plus additional electoral votes equal to its membership in the House. That serves structural neatness, but not good government.
8. "Electors Are Chosen for Their Independent Judgment." That was the original idea, but it certainly isn’t true now. Many states require electors to vote for the candidate who carried their state, and the expectation is that all will. Last year, seven electors did not do so, the first time since 1912 that more than one has strayed. This argument is inconsistent with the previous one, which emphasized the role of the state.
9. Candidates would ignore small states. "If the president were chosen through a national popular vote election, the campaign would look much different than it does now. Instead of candidates paying so much attention to small states such as Iowa, New Hampshire, Nevada, and Maine, they would instead camp out in large urban centers, where there are lots of voters." That might be so, but would it be a bad thing for candidates to go where voters are?
That focus "would, of course, tilt national policy away from the interests of what many on the east and west coasts of the United States presently dismiss as ‘flyover country.’ " That doesn’t necessarily follow and, in any case, many states are ignored in campaigns now. Six states, Florida, North Carolina, Pennsylvania, Ohio, Virginia and Michigan, none of them small, received 68% of presidential campaign visits last year; twelve states received 94%; twenty-five saw none.[6]
10. Counting a popular vote would cause problems. "Determining a winner in a national popular vote election might even prove impossible." This returns to the issue raised in item 1, but here Mr. Byas’ argument reflects the same confusion found in Judge Posner’s article: his example of a counting problem concerns the electoral vote. "The 2000 election is particularly memorable, since it took 36 days after the election before a winner was finally declared — and that delay was solely because of disputes concerning the popular vote in one state: Florida." Its popular vote was at issue solely because of its electoral votes.
11. Opportunities for fraud would increase. "With a national popular vote election, in which fraud can no longer be ‘contained’ within the borders of a single state, or a handful of states, the temptation to stuff the ballot box would be obvious." Voting fraud, in the sense of false or ineligible ballots doesn’t appear to be a serious problem, but let’s assume that it might be. "And with a national popular vote, states would likewise be tempted to increase their vote totals." The state-by-state advantage, and therefore temptation, is peculiar to the present system, in which votes by state are important. Also, it would require a far more massive voting fraud to produce a plurality of 2.865 million votes than to swing 77,774, the actual and effective margins this year.
The federal oversight of elections that Mr. Byas fears would reduce the chance of any sort of fraud or error.
12. Suggested reform: assign (some?) electoral votes by district. "While the Constitution left the actual selection method of states’ electors in the hands of state legislatures, Madison and Hamilton were disappointed when Pennsylvania and Maryland opted to use a ‘winner-take-all’ method. They had apparently assumed that each congressional district would choose one elector, with the other two then picked directly by the state legislature. . . . Today, only two states — Maine and Nebraska — use the congressional district method favored by Madison and Hamilton."
I haven’t found any reference to that assumption by Madison and Hamilton. However, Hamilton proposed a Constitutional amendment in 1802 which involved creating electoral districts equal in number to a state’s Senators plus Representatives,[7] i.e., two more districts per state than the Congressional districts, and necessarily different in configuration. (Madison proposed an amendment in 1823 which appears to follow the Hamilton pattern). Maine and Nebraska assign one electoral vote to the winner of each Congressional District, but award the two "Senatorial" votes to the winner of the state total, so they conform neither to Mr. Byas’ understanding of the history nor to Hamilton’s amendment.
"If every state adopted this [Maine-Nebraska] method, it would better maintain the federal character of the presidential election as envisioned by the Founders than the present winner-take-all system prevalent across the country." That doesn’t square with his concept of federalism, which emphasizes state power; he returns to the latter shortly. "Had this system been in effect in 2012, Mitt Romney would have been elected president over Barack Obama." Oh, good; we’d have had elected the loser again.
"Opponents of this suggested reform argue that this would lead to state legislatures drawing congressional district lines so as to increase their state’s clout in determining the winner of the presidential election, much as they now influence the makeup of Congress through gerrymandering. Actually, increasing the power of state legislatures in the selection of the president can be argued to be a good thing, because it would help restore some of the power of the states in their relationship with the federal government." That’s the real argument for maintaining the Electoral College: power to the states. What’s a little gerrymandering?
It should be noted that Madison initially favored popular election. Below is an excerpt from Madison’s notes made during the Constitutional Convention (He refers to himself in the third person).[8]  It is important not only to note his preference then for popular election,[9] but to show one of the origins of the electoral compromise.
After rejecting election of the President by the Congress, Madison said this: "He was disposed for these reasons to refer the appointment to some other source. The people at large was in his opinion the fittest in itself. It would be as likely as any that could be devised to produce an Executive Magistrate of distinguished Character. The people generally could only know & vote for some Citizen whose merits had rendered him an object of general attention & esteem."
However, he was forced to compromise: "There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections." In other words, slaves could not vote, and the Southern white population worried that it would be outvoted. Using the electoral system and counting a slave as 3/5 of a person in allocating electoral votes solved that.
If original intent or original expectations are significant, then the Electoral College would not be of great importance, as it was assumed that most elections would end up in the House. As Madison put it in Federalist 39, "The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; . . ."
A political process can be judged by its origins, which does not speak well for the electoral system, and it must be judged by its results, which returns us to the recent election. Here is Hamilton’s expectation, in Federalist 68, for the electoral college: "The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. . . . It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue." Does that describe the new President?
Abandoning the Electoral College would not be without potential problems, but they are soluble, and it is time to acknowledge that we are a democratic republic.

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4.
http://uselectionatlas.org/RESULTS/national.php?year=2016&off=0&elect=0&f=0 

5.
Webster’s Encyclopedic Dictionary of the English Language (1989) refers, in its version of this definition of a republic, to "a state, especially a democratic state."

6.
http://www.nationalpopularvote.com/campaign-events-2016

7. http://press-pubs.uchicago.edu/founders/documents/amendXIIs3.html

8.
http://avalon.law.yale.edu/18th_century/debates_719.asp

9. In a letter of 1826, Madison reversed course and expressed a preference for the electoral system over popular vote.

Saturday, January 7, 2017

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."[1] 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, [2] 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.

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1. The Washington Post, 12/16/16
 

2.
Richard Posner, "In Defense of the Electoral College,"
http://www.slate.com/articles/news_and_politics/view_from_chicago/2012/11/defending_ the_electoral_college.html