The Boston Globe has this column by Jeff Jacoby in its July 16 issue. Jacoby attacks the National Popular Vote Plan in a piece that is not analytical. He talks grandly about the need for avoid “tyranny of the majority”. The tyranny of the majority is checked by the U.S. Constitution, which protects minorities from having their rights abridged by a popular majority. The problem of the tyranny of the majority has nothing to do with the electoral college. The problem with the electoral college is that sometimes it gives us a “tyranny of the minority.” As bad as tyranny of the majority is, tyranny of the minority is even worse.
The sole issue in the Electoral College debate is whether the U.S. should use a system in which the person who comes in second can take office, instead of the person who comes in first. No one can really defend that idea that the person who comes in second should take office, so proponents of the existing system always try to change the subject and rely on emotion instead of analysis.
Jacoby tries to pooh-pooh the problem with the 2000 election. He says the difference between Gore’s popular vote and Bush’s popular vote was “miniscule.” The margin was 537,179 votes, a number that is not “miniscule.” In 2000, there were 10 states which cast fewer votes for president than 537,179: Alaska, Delaware, Hawaii, Idaho, Montana, North Dakota, Rhode Island, South Dakota, Vermont, Wyoming, as well as D.C.
Although I personally believe the Electoral College should be replaced with the popular election of the President, the valid arguments FOR the Electoral College have to do with “Federalism” and “State’s Rights”. It is the “United STATES of America” not the “United CITIZENS of America”. Just as originally, the STATES (state legislatures), not the CITIZENS elected the US Senators, with the Electoral College, the STATES (Presidential Electors), not the CITIZENS elect the President. The distribution of the Electoral Votes was a compromise to satify the small states at the time of adoption to gain ratification. You can argue whether the current distribution of Electoral Votes is or is not better than “one vote per State”, but it was a step closer to the popular election of the President than by one vote per state or by vote of the State Legislatures. Just as the Constitution was Amended to allow the citizens to elect their US Senators, I would support the Constitution being Amended to allow for citizens to elect the President. Anything short of a Constitutional Amendment is simply an attempt to manipulate the system rather than correct it.
It’s funny how Jeff can talk out both sides of his mouth depending on the topic being discussed. He cites protecting the minority from the tyranny of the majority as justification for the creation of the Electoral College. Yet, did he cite that argument when the MA SJC concluded that it was unconstitutional to deny same-gender couples to wed? No! He was all for the right to vote – and for majority rule when it came to that topic. Pick a lane, Jeff.
There is an excellent history book called “The American Constitution” by law professor Vikram Amar. It explodes the myth that the founders were trying to balance the interests of the small states and the populous states, when the thought up the electoral college. The truth is that the founders were trying to balance the interests of the free states and the slave states in presidential elections. The south knew that in a direct popular election, the north would completely outvote the south. The founders were afraid that the southern states would not ratify the constitution unless some system were thought up to make the south and the north equal in political power, in the presidential selection process.
I’ve often thought that a good compromise between the current Electoral College system and a pure national plebiscite would be voting for one elector in each congressional district (and awarding two statewide electors to whichever candidate wins the majority of the congressional district electors). This way, the “states” would still be electing the president, but it wouldn’t be a winner-take-all in each state. Don’t a couple of states already use this approach? Third-party presidential candidates would still have a hard time winning any electoral votes, but they might be able to break through in a few congressional districts.
Nebraska and Maine.
Given how large congressional districts are, except in very small states, I don’t think any candidate would win even a district unless they had significant regional support.
I am not so sure I like the National Popular Vote Plan. I’m thinking I like the idea that individual states retain ultimate control over the selection of the president, if for no reason other than to protect what vestiges of federalism remain from the original constitutional model.
I’ve also come to the conclusion that Amendment 17, providing for the popular election of Senators, was one of the biggest mistakes of the early 20th century. Ever since then political power has drifted more and more away from the states and to the federal government.
As a way of thinking about this imagine, if state legislatures still selected US Senators, how many unfunded mandates would ever escape the beltway.
Further, imagine what would happen to the lobbying industry within the beltway if lobbiests knew that Senators would have to answer to state legislators, not to the press, to get reelected.
Similarly, I like the idea that Presidential candidates and their supporters still have to depend on the good will of the states, which can revert to the legislative election model at any time, to get elected.
Before the 17th amendment was adopted, there were many instances in which wealthy individuals who wanted to be U.S. Senators were found to have bribed state legislators, in order to be appointed to the Senate. Also there were numerous instances at which state legislatures deadlocked over the selection. Sometimes states went an entire year with one U.S. Senate seat vacant, just because the legislature couldn’t do its job.
Define “comes in second”.
This is a federation of states. What matters is how each state votes, not how each individual votes.
The “popular vote” is meaningless to the national election, and is only meaningful inasmuch as each state assigns it such.
The Federal Election Commission always calculates the national popular vote for president. The FEC must do this, to determine which parties are eligible for general election public funding. So there is an official determination by a branch of the federal government as to how many popular votes each presidential candidate received. One can refer to this document to see which presidential candidate placed second.
there is a good article on the electoral college by William C. Kimberling, Deputy Director
FEC Office of Election Administration,original text qoute-The problem of the tyranny of the majority has nothing to do with the electoral college. The problem with the electoral college is that sometimes it gives us a “tyranny of the minority.†As bad as tyranny of the majority is, tyranny of the minority is even worse.I Disagree with this statement.It sounds like richard W. you are for a full democracy,and wish to do away with the electoral collage, our founding fathers warned us NOT to have a democracy,only a Constitutional republic can assure our Individual freedoms.
Let’s say that the urban voters and the rural voters are in opposition to each other, and that the urban voters are more numerous. It is one thing for the rural voters to say, “Don’t impose your majoritarian tyranny on us; leave us alone.” That’s fine. But what the rural voters are doing is saying, “Urban voters, we don’t want your president in power over us! Instead we want our president in power over you!”
In other words, this isn’t a case of a minority complaining that its vital interests and rights are being trampled on by a majority. This is a case when the minority wants to impose its president on the majority that doesn’t want that president!
It isn’t as though the minority is saying, “Let’s not even have a president.” The minority is trying to dictate to the majority as to whom the president should be. This has nothing at all to do with the right of a minority to be protected from being molested by the majority. This is a case of the minority wanting to impose its president on the majority. I can’t understand why anyone thinks this is moral or right.
But the person who came in second didn’t take office. The person who came in first under the rules set up by the Constitution took office. The list kept by the FCC that you cite Richard, is for a different purpose entirely. It has nothing to do with who won the election. It entirely has to do with who gets public funding. It’s two different rules for two different purposes. Therefore, there is no need for any of us here who are defending the Electoral College system (however much we may want it tweaked) to “rely on emotion” since we KNOW that the person who came in second under the legitimate rules did not take the office away from someone who came in first. If you want to try and change the system, fine. But please don’t confuse the issue by saying that the wrong person won and basing that argument on a set of rules that aren’t the law of the land.
In regards to “The American Constitution” listed above, I’ve heard the theory before but it seems to be a minority view. What makes Professor Amar so special that we should disregard the majority of established opinion built up over the last couple hundred years? You’re certainly welcome to your opinion but I’ve seen history revisionists before.
The current system for electing a president violates the core principle that the government should treat each voter equally. If the government thinks it’s OK to treat give some voters more power than other voters, then what is to stop that same government from giving more justice to some citizens and less justice to other citizens? Equal treatment is a core value that even young children understand.
The preamble to the U.S. Constitution starts “We the People” not “We the states”.
Good posts, Richard. I might check out that book you mentioned.
The idea that in a few close races the person who came in second in Electoral Votes actually won because they had more popular votes is utter nonsense. It is hard to imagine that anyone with more than a passing interest in elections could make that pedestrian assessment. Such an argument is specious and not supported by reality.
In reality, the winner in the Electoral College won because electoral votes was what each rational candidate was attempting to maximize. No one knows what the actual popular vote was, and no one can say who won the popular vote because there was no real popular vote undertaken.
Why?
It’s because the players were operating under rules of the game that counted Electoral Votes. The candidates had no interest in pursuing the maximization of total votes. The interest of the candidates AND THE VOTERS, throughout American history has been to win in the Electoral College.
So, there has been no need to “run up the vote” in states that were already won. As a result we have no idea what the vote totals would have been, nor even who the candidates would have been under a Popular Vote system.
We do know that in many one party areas, the number of votes would represent more than 100% of the eligible voters.
Direct popular vote on a national level will lead to massive fraud and violence that exceeds anything seen heretofore in the 3rd world. There will be millions of fraudulent votes as voters in one party areas try to manipulate the final outcome.
Under the current rules, such fraud can change the outcome in a single state’s electoral votes.
Under the Maine/Nebraska system, such fraud would affect only a single Electoral Vote representing one Congressional District or possibly two statewide electoral votes.
But, with national voting, corrupt, single party districts can run up thousands of votes EACH. The one-party areas will be able to outvote all of California, New York, Texas, and Illinois combined in a close race. Organized corruption will make it possible to steal elections that are NOT close.
The Electoral College is a brilliant system. Without it the US would have become a total fascist dictatorship in the 1930s or 1940s.
We must kill off National Popular Vote and all other attempts to abolish the Electoral College and subvert our Constitutional protections. With direct election of the President, we WILL become a fascist-socialist dictatorship within a few decades.
Whenever a kid asks me to explain the electoral college, I take five kids and put them in a row. I say, “You three vote for the Democrat, and you two vote for the Republican. Who wins?”
They tell me the Democrat wins.
Then I move the students, like this:
DDD R R
I say, “Now the Republican wins.”
They always tell me that that doesn’t make any sense. I tell them it’s the only way to make sure that rocks and trees are represented.
I’m not sure that’s clear; I move the students so that the two Republicans are each standing alone:
DDD
R
R
It is interesting that in the 1876 election, Tilden built up his popular vote lead by big margins in the South:
State margins greater than 40,000:
Tilden: GA 80 (thousand), KY 63, TX 61, MS 60, MO 57, VA 45, TN 44.
Hayes: IA 59, MA 42, KS 41.
Same thing in 1888:
Cleveland: TX 144, AL 60, GA 60, MS 55, LA 55, SC 52.
Harrison: KS 80, PA 79.
The 1880 and 1884 elections which were as close in the popular vote were much more balanced. IOW, when the popular vote winner differed from the electoral vote winner, it is because of piling up massive margins in relatively few States, producing a less pluralistic result.
Presumably, the candidates were not trying to achieve victory in the national popular vote, but rather it was a side effect of an effort to win victory in the electoral vote. If they had been attempting to achieve a popular vote victory, they would have campaigned differently, and even the candidates could have been different.
You have suggested that the “popular vote” instrument would more accurately determine who came in first, and that the “electoral vote” instrument sometimes determined that the candidate who came in second, had come in first. But if the manner of measurement changes the result, can it be said to be accurate at all? If you use a thermometer to measure a fever, what happens if it breaks and the prognosis is lacerations of the tongue and throat and mercury poisoning?
And can a candidate who received more votes be considered to have won, but rather merely been ahead at half time? The Constitution provides a method for resolving elections when no candidate receives a majority of the electoral vote – as happened in the highly fractionated election of 1824. It also tends to discourage factions, such as happened in 1860 and 1912. The NPV plan could well lead to more candidates running, with the winner getting less and less of a plurality.
Andrew Re #17 That’s brilliant. So what do your students say when you use the same exercise the following day to explain the composition of the US Senate?
People may not realize this, but Congress actually exercised more of its time and manner authority with regard to the legislative election of Senators than the popular election of Representatives.
When you use the word “deadlock” it suggests that perhaps the two houses of a legislature had chosen a different senator, but in fact Congress had provided a method of resolving such disputes by providing that if two houses did not have a concurrent choice, that the election would be by the combined membership. The few deadlocks that did occur happened when there were more than two factions. Had Congress considered this to be a significant problem, they could have provided for elimination of a 3rd candidate.
In other cases, a year-long vacancy may have been due to a legislature not being informed of the vacancy before a legislative session ended. Legislative sessions were short and Congress was a stickler for a literal interpretation of the Constitution, which only provided for appointment by a governor if the vacancy happened during a legislative recess.
And there were deadlocks in the election of Representatives as well. Some States required majority election, and if there was no majority, then they would hold another election a month or so later. Massachusetts once took 8 elections (from October to April) to determine a Representative. The eventual winner finished 3rd in the 1st trial, and 4th in the 2nd and 3rd trials, finishing ahead only of David Cobb.
What if the FEC doesn’t have a quorum? How can they issue their report? Didn’t Balance Access News report there was going to be a problem with doling out government election funding this year because the FEC didn’t have a quorum?
The preamble of the US Constitution says that it is for the purpose of forming a more perfect Union (than the less than perfect Union provided by by the Articles of Confederation). And of course “the People of the United States” refers to the People of the several States united in common purpose, rather than a single peoplehood of Americans. The Constitution that the preamble claimed was “ordained and established” did not come into effect until approved by the People (in convention) of 9 States.
Re:16 Coming back to the LP Says:We must kill off National Popular Vote and all other attempts to abolish the Electoral College and subvert our Constitutional protections. With direct election of the President, we WILL become a fascist-socialist dictatorship within a few decades.
I think it would happen sooner,we are already half there with the current system,which has been corrupted by the two major political parties from what the founding fathers wanted.
Wait a minute Richard. You’re going to argue that something is unconstitutional (not having people’s votes count in one State the same as people’s votes in another State), even though it’s plainly written in the Constitution that it should work that way? And you say that we defenders of the Electoral System are arguing on emotion???!!! “We the People”, as used in the first sentence of the Constitution, was never meant to confer any right of equality among the masses, either for voting or any other matter. The Preamble guarantees, neither explicitly or implicitly, any right whatsoever. It was put there to show that the document, created by the residents living in the 13 states, was also being approved by the common man of those same 13 states, rather than being forced upon them by a monarchy or some other government outside of those 13 States. And while the Preamble doesn’t mention State’s Rights, those Rights are thoroughly laid out later in the document, including how the people will vote for Electors assigned to each State, but letting the State assign the Electoral Votes as it pleases. It would seem that the principal of States Rights then, does trump your claim of equality.
Second, people’s votes are treated equally now. Every person in every State votes and the totals are added up within each State to see how the Electoral Votes will be assigned. Just because one State has more Electoral Votes than another is not a sign of inequality against voters in another State. But even if it were, so what? We already discriminate against voters in another way such as age. Right now, you need to be 18 years old in order to vote. Why? I’ve seen some pretty smart 14 and 15 year olds after they’ve taken a high school U.S. History class that covers the Constitution, and I’ve seen some pretty stupid 18 year olds and above who shouldn’t even be allowed near a voting booth. Even if you are right that the Electoral College doesn’t count the votes equally (and I don’t agree with you), at least the people can vote. The under 18 crowd not only doesn’t have their vote counted equally, but they are prohibited from voting at all. This seems to be the far greater transgression. Yet we allow it because we know we have to place limits somewhere even if it discriminates. The writers of the Constitution chose not to have a direct popular vote even if it meant, in your opinion, that some votes are more equal than others.(Again, I disagree with you on that.)
Third, it’s nice that small children understand equal treatment. (Although I’ve seen some actions on playgrounds by bigger children toward smaller children that would seem to dispute that.) But it’s too bad they don’t understand the way the Constitution works. Of course, they don’t yet understand Calculus and Physics either, but give them time, and they’ll understand it. I’m not going to outlaw the Electoral College, Calculus and Physics just because a small child doesn’t yet understand the concepts. Besides, seeing as how many of these same small children believe in Santa, the Easter Bunny and the Tooth Fairy, I guess I just don’t seem to put much credence in their logical and deductive reasoning skills as you do.
Jim R, I don’t have to explain the composition of the Senate–I’m not a government teacher. I’m an administrator; the kids know I know about politics, so they ask me this kind of thing.
I suppose I could use the rocks and trees line, though.
Re #3 The book is America’s Constitution by Akhil Reed Amar (who is Vikram David Amar’s brother). The two have collaborated on other articles on the subject. For example: ‘HISTORY, SLAVERY, SEXISM, THE SOUTH, AND THE ELECTORAL COLLEGE:
Part One Of A Three-part Series On The 2000 Election And The Electoral College’
http://writ.news.findlaw.com/amar/20011130.html
The remaining two parts of the series include their proposal for bypassing the amendment of Constitution to implement national popular vote. An interesting footnote is that they suggest that the election could be conducted by some organization other than the States at all in order to avoid problems with recounts, varying suffrage laws, ballot access, etc.
http://writ.news.findlaw.com/amar/20011214.html
http://writ.news.findlaw.com/amar/20011228.html
The articles were written in 2001, the book was published in 2005, and makes many of the same arguments. Given the inclusion of the proposal for election of national popular vote, it suggests a bit of revisionism, based on a presumption that there should be direct popular election of the President. From this flows the question: “Why didn’t the Founding Fathers implement direct popular vote?”, rather than, “Why was the electoral college adopted?”
There was little support for direct popular vote in the convention. The votes (by State delegation) were against it by overwhelming margins (1-10, etc.). James Wilson its chief proponent characterized his proposal as being “chimerical”. Gouvernor Morris, another advocate, suggested that in case that no candidate received a popular majority (which would likely happen often) the legislature could choose the President, and gave the example of Massachusetts where this happened. Incidentally, Massachusetts used a similar system in the early selection of its electors, where the legislature chose electors from 2 candidates nominated by the voters, or chose the electors in case of a non-majority, the electors were chosen by the legislature (this was used as late as 1848).
In fact, the 1787 version of the electoral college anticipated such a possibility by providing for election by the House of Representative from among 5 candidates.
The main arguments against direct election were that there was a lack of widespread national awareness of potential qualified candidates, as there might be in a single State; and that candidates from large States would have an advantage, since voters would likely vote for a favorite son.
There is some evidence that this would have been the case. For example, in 1824, Jackson-supporting electors received 96% of the vote in Tennessee; while Adams-supporting electors received 83% of the vote in Massachusetts (against only Crawford opposition).
But the Amar’s have transmorgrified an argument against direct popular election made in 1787 into one discounting a claim made in the 21st Century as to why State’s have a particular voting strength under the electoral college.
To do so they, define a large State as one that has greater than than the mean State population (or that loses voting strength through consideration of the Senatorial electors). In 2000, Tennessee would be right at the dividing line, and had Al Gore been elected, he would have been classified as a large State winner, as would a candidate from Indiana, Washington, or North Carolina, etc. (16 States total).
Were fractional representatives and electors apportioned, Tennessee would have 10.812 electors under an apportionment based on 435 representatives and 100 senators and 10.837 electors under an apportionment based directly on 535 electors. The difference of 0.025 electors is negligible.
Since few Presidents have not come from “large” States, the Amar’s jump to the conclusion that the reasoning behind the electoral college was not to protect the interests of small States, and therefore must have been for some other reason, and they latch on to slavery.
But in 1787, opponents of direct popular election were not concerned that a favorite son from a medium-size State would finish 16th in a direct popular election. They were concerned that voters from the very largest States (Massachusetts, Pennsylvania, and Virginia) would vote for a favorite son and leave their own favorite sons far behind.
In substance, they sought a more knowledgeable electorate. The primary alternatives for election of the President were (1) election by the Congress; or (2) electors chosen by the State legislatures.
There was a concern that election by the Congress would lead to corruption. A President might bestow favors on members of Congress in order to secure his re-election. Congress itself might become corrupted.
But electors chosen by legislators would be a temporary body, less susceptible corruption, especially since they would be chosen from throughout the nation.
An early proposal for electors in the convention would have given each State 1, 2, or 3 electors based on its population, with States with a population between 100,000 and 300,000 having 2 electors. James Madison pointed out that at some time in the future most States would have 3 electors and there ought to be provision for growth of the country. Eventually, the basis for the number of members in the electoral college was set to the same as that for Congress. Here, the electoral college can simply be seen as a sort of special-purpose body that was created as an alternative to election of the President by Congress. If a convention is ever convened for the purpose of proposing amendments to the Constitution, it is quite likely that the basis for membership will be the same as for Congress.
The fact that the number of electors reflected the 3/5 Compromise does not mean that the intent of the electoral college was to protect the interest of white slaveholders such as George Washington, Thomas Jefferson, James Madison, and Andrew Jackson. After all representation in House of Representatives also was based on women, children, idiots, the property-less, illtiterates, felons, and foreigners. the Amar’s note that if a slave-holder freed a slave, and he moved to the North, the Southern State would lose representation. But they failed to note that a Northern State would gain representation, but not a voter.
The 3/5 compromise was as much about the North limiting the voting power of the South, as the South demanding extra voting power. The North would have been quite happy with a 0/5 compromise.
The Amar’s suggest that the 1796 election was more sectionally polarized than that of 1800. But what are the differences? The main was the more disciplined voting for the vice presidential candidates, Charles Pinckney of South Carolina (who ran with John Adams of Massachusetts) and Aaron Burr of New York (who ran with Thomas Jefferson of Virginia). If you are going to have sectional-based elections, shouldn’t you choose a running mate from your section?
The other changes in the electoral vote were that New York (where electors were chosen by the legislature from 1792 to 1824), flipped from Adams in 1796 to Jefferson in 1800 (due to Burr), and that Pennsylvania’s legislature picked its electors for the first and last time that the popular vote was not used in that State. In 1796, the voters had elected mostly Jefferson electors. In 1800, the legislature split the electors. While it is true that Pennsylvania is generally south of New York, it is hardly a southern State.
There were two States, Maryland and North Carolina that chose electors by district and had significant splits among their electors. In both cases it was the tidewater districts of southern Maryland and Eastern North Carolina that voted for Adams, while more inland areas supported Jefferson.
The Amar’s note that in 1824, 3 Southern States, Georgia, Louisiana, and South Carolina were holdouts against popular election of electors, and state that this is further evidence of a link between slavery and the electoral college. They fail to note that the other 3 holdouts were Delaware, New York, and Vermont; or that Maryland and Virginia were the two States that were totally consistent in their popular election of electors. If there is any particular relationship between the mode of election, and the type of the State it is that smaller States were more likely to have the legislature choose the electors, with New York being an exceptional case.
The article suggests that somehow the electoral college caused a delay in female suffrage – that if there had been direct popular election of the President, the States would have had an incentive to expand the franchise. But this presupposes that if there had been direct popular election of the President, that the franchise would have been determined on a State-by-State basis as it was for representatives. But this worked for representatives, precisely because representatives were elected within States. It also presumes that States would have granted women the right to elect governors and legislators merely in order to augment their clout in presidential elections.
A more solid case can be made that the electoral college permitted individual States, beginning with Wyoming in 1890, to extend the franchise to women, and provided a demonstration that would eventually lead to the 19th Amendment 30 years later. If there had been direct popular election of the President, Congress might have rejected Wyoming’s constitution. In 1876, Colorado had considered providing for female suffrage in its constitution, but had not for concern that Congress would not have accepted the constitution. Instead, Colorado provided for female suffrage in school elections.