This morning on C-SPAN’s BookTV, I caught a re-run of an earlier program featuring Tara Ross, author of a book entitled Enlightened Democracy: The Case for the Electoral College. In her presentation, she made a number of comments so specious that I came away thinking that if this is the best case that can be made for the electoral college, then if the “debate” about this institution were ever to come down to simply a battle of ideas, those of us who advocate its abolition would have nothing to worry about. (I use quotation marks on the word, “debate,” because, alas, even after 2000 exposed the open wound of the way we select presidents, there effectively is no debate. More to the point, the institution is safe because of the protection it gives to the small states that have a veto over constitutional amendments, and not in the power of the idea.)
Before going forward, I will note that I think there are justifiable arguments to be made in favor of an electoral college. One can plausibly argue that it has a place in a federal system (even though no other federal presidential system has such an institution since Argentina dispensed with its electoral college a decade ago). I happen to disagree with these arguments, but one could design an electoral college that is consistent with an idea of weighting each state’s contribution to the president’s election without maintaining the current system of winner-take-all allocation of each state’s electors. It is this latter aspect of our electoral-college system that I find especially odious, primarily because of the way in which it makes the presidential contest essentially invisible in “safe” states (like California in recent elections) and thus suppresses turnout and involvement in our most important democratic process.
One of Ross’s “arguments” was that if we had what she called “pure democracy” we would have a situation in which 51% of the population could dominate the other 49%. This would be best termed the anti-majoritarian argument. However, it is irrelevant to any debate over the electoral college, for two reasons.
First, the fact that we have a presidential system with co-equal legislative branches and an independent judiciary means our republic would be non-majoritarian regardless of how our president is elected. Yes, the presidency itself is a majoritarian institution (it concentrates power in the hands of the one party that wins the office), but that power is shared with that of other independent institutions. Direct election does not make the overall system more majoritarian. In fact, as I will note below, it could make it less so.
The Senate is a profoundly anti-majoritarian institution, and while the House is organized internally in a highly majoritarian fashion, the electoral aggregation that produces its majority is fundamentally different from the process that would produce a direct national majority in a presidential election absent the electoral college. Thus the system of different interests being aggregated in each elected institution (and further checked by the courts) is safe, even under direct election.
Second, the essence of the anti-majoritarian argument that Ross appears to be making is that it is undesirable to concentrate power in a policy-making institution in a way that provides no protection for those in the minority (the 49% against the 51% that she alludes to). If we accept that argument from Ross then we must accept that she is making an excellent case for abolishing the presidency altogether, not for retaining an electoral college to choose its occupant. Numerous presidentsâ€”Bush in 2000, Clinton in 1992 and 1996, Nixon in 1968, and Lincoln in 1860, to name just a fewâ€”have been elected in spite of not even reaching 51%. (I assume she really means 50%+1.) If one is concerned about having presidential authority concentrated in a national majority at the expense of the minority, then how is a system that frequently concentrates that authority in the hands of a minority at the expense of the majority a good system?
The electoral college frequently produces winners not endorsed by a majority of the voters and, as in 2000, sometimes not even a plurality. A direct vote, on the other hand, could be designed to require a majority, either through a second-round runoff or, as I would prefer, through a single-round instant runoff (where voters give at least their second preferences as well as their first). This would provide far more protection for minority political views than does the current system, which simply throws out the votes not only of those of us who tend to favor parties other than Democratic or Republican, but also those who vote for the major-party candidate who fails to get the plurality in their state.
On this latter pointâ€”the winner-take-all allocation of electors to the candidate with the most votes in any given stateâ€”Ross was asked a question about the proposal in Colorado last November to switch to a proportional allocation of that state’s electors. She said it was a bad idea. Why? Because, “when you think about it” you have to figure out how to round the numbers. (Oh, my! Votes percentagesâ€”and, gasp, even percentages of electors wonâ€”sometimes contain decimals, and how would we ever cope with that?)
Of course, this “problem” of dealing with rounding in proportional allocation is something that smart men and women have thought of before. Most democracies use proportional representation in their legislative elections and don’t have any particular difficulty managing this mathematical exercise. The US has coped with the same mathematical problem since the birth of the republic; in fact, two common formulas for PR systemsâ€”d’Hondt and Ste.-LaguÃ«â€”actually were invented earlier by guys named Jefferson and Webster, respectively, as methods for apportioning House seats to states after a census. And both major parties in most states use PR formulas (albeit with very high thresholds) to allocate delegates to nominating conventions. I think we could figure out how to do it in the electoral college.
That is not to say we should use PR to allocate electors. I was contacted by the Colorado PR proponents before the measure qualified for the ballot, and I actually told them it was a bad idea, for two reasons. First, because why should Colorado (or any other state) unilaterally disarm? One state would be diluting its impact on the election without reciprocal commitments from other states (some of which are “safe” for the opposite party) to do the same. Second, and more importantly, because if all (or most) states allocated their electors proportionally, and if third candidates started winning electoral votes, many elections would result in no candidate obtaining a majority of all electors nationally. In that case, we could see frequent recourse to the contingent-election process by which the Houseâ€”on a one-state, one-vote principleâ€”determines the presidency. This would be even worse than the electoral college as we now know it. (As a political junkie and because it might actually force debate, I would love to see it happen, but it would be an utterly absurd way to pick a president, notwithstanding that the founders incorrectly expected it to be quite commonly invoked.)
The first problem with proportional allocation could be fixed by states’ adopting “trigger” clauses whereby their own amendments to allocate their electors proportionally would take effect only after a certain number of other medium-to-large states likewise did so. (I think this kind of trigger should also be part of the various maesures to create independent redistricting commissions.) However, the second problemâ€”what to do when no candidate obtains a majority of all electorsâ€”could be fixed only with a constitutional amendment. So, if it requires a constitutional amendment to fix a critical problem with the unrepresentativeness of the current system, we might as well have one to fix the entire problem, and go to direct election (by majority of votes).
Now, that would be enlightened democracy. Don’t hold your breath, however.
A final comment on Ross’s case. She reassured us that “crazy” things like what happened in 2000 are not so bad, if you go back and read about 1876. Great! Now I feel so much better about the status of American democracy in the 21st century. Things are not worse than they were in 1876. Hooray!