Saturday, August 10, 2019

What to Do About the Electoral College

In a recent article in The New York Times, Nate Cohn pointed out the plausibility of President Trump’s reelection with an even bigger popular vote deficit than he had in 2016. [1] Now should that result obtain, we can predict the reactions. Those who vote for the Democratic candidate will complain that democracy has been thwarted by an outmoded system that should be done away with. Trump supporters will say that the system has worked as designed by the Founding Fathers. 

Now it is certain that the Framers of the Constitution did not intend that presidents be directly elected by the people. That doesn’t answer the question of whether they should be, since we shouldn’t treat the Constitution as if it was unalterable holy writ. That’s why there is an amendment process written right into it. But in looking at the question, we shouldn’t deceive ourselves into thinking that the Electoral College system, as it works today, operates in the manner that the Founders intended. It does not, and we can see that by simply reading the Constitution. 

The original idea was that each state would appoint, in a manner to be determined by its legislature, a number of electors equal to the total of its representation in the Senate and the House of Representatives. [2] [3] There wasn’t (and isn’t) even a requirement that the electors would be chosen by popular vote, and many states, for many years, had them chosen directly by their legislatures.

In Federalist No. 68 [4], Alexander Hamilton, writing in support of the Electoral College as originally conceived, said that it “was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided,” and that this end would “be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.”

It’s clear that Hamilton conceived that the voters would select, not the candidates, but the electors themselves. And there was no thought that the electors would be pledged to vote for a particular candidate, or the nominee of any particular party. 

But if the sense of the people was to be operative, why not a popular vote? Because it “was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.”

Note that Hamilton anticipated that the electors were to deliberate and use judgment. They were to make their decision based on information and discernment. The concept clearly was that the citizens would choose electors that they trusted to make what ought to be a thorough investigation. This could not then, and cannot now, be done adequately by those who cannot devote full time to the inquiry.

Not only that, but:

“It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.”

We see in our own time how divisive presidential elections can be. And it has to be admitted that people don’t always make their decisions on rational or even factual grounds. Yet the vote of an ill-informed citizen counts the same as the vote of one who has been able to educate himself on the matter. Biased journalism, or outright fake news, don’t help matters. Moreover, our presidential campaigns have become spectacles, full of bromides, slogans, and even juvenile put-downs. In the last presidential election, one primary candidate went so far as to insinuate something about the dimensions of his opponent’s penis based on his hand size. And the opponent felt the need to defend himself! 

This is no way to pick a president. And Alexander Hamilton and the other Framers foresaw that an intermediate body of electors would be needed to prevent such travesties. And it would likely work well if we could return to that method today. 

But we can’t. We can’t because political parties have taken over the whole system. Even if we tried to return to the Electoral College as originally intended, the likely outcome would be that the electors would be party apparatchiks running under the banners of their respective parties. 

Something should be done, however, because we have strayed far from the original intention, and the present method of a candidate capturing the entirety of a state’s electoral votes because he has won a plurality—not even a majority, but a plurality—which prevails in all but two states has nothing to defend it except the delusion that it was the system conceived by the constitutional Framers. “The shift to statewide winner-take-all was not done for idealistic reasons. Rather, it was the product of partisan pragmatism, as state leaders wanted to maximize support for their preferred candidate. Once some states made this calculation, others had to follow, to avoid hurting their side.” [5]
Should we switch to a popular vote? That’s an idea that has a lot of proponents nowadays, and state boundaries aren’t the indicators of interest that they once were. Farmers will have more in common with other farmers across the country than others that happen to reside within the same state; and the same goes for such interests as business people, factory workers, and members of minority groups. And the principle of one person-one vote would at last be applicable to presidential elections. 

Still, perhaps, we should not be completely dismissive of those who fear that presidents would be selected by residents of the more populous states, casting aside the concerns of people living in the heartlands. The Electoral College does have the advantage of compelling presidential candidates to focus their attention to places outside of California, New York, and Texas. So perhaps a compromise could be obtained. Here is a suggestion: 

The first thing to do would be to dispense with the rubber-stamp electors, and award electoral votes instead. The electors serve virtually no purpose anymore, and there is no reason that electoral votes can’t be simply awarded without their intervention. Each state would have the same number of electoral votes that it would have of electors. 

Secondly, electoral votes in each state would be awarded proportionately, according to the percentage of votes received. Some might be concerned that percentages won’t be exact in relation to the electoral votes, but this could be solved by the use of the arithmetical rules for rounding. 

Third, considering that the number of each state’s electoral votes are equal to the total number of senators and representatives it has in Congress, there could be a provision that any candidate receiving more than 50 percent of a state’s popular vote would receive two electoral votes to represent the state’s Senate representation, with the rest being allocated according to percentage.

This method should satisfy any legitimate concerns about going to a straight popular vote, and would be superior to awarding electors in gerrymandered districts. At the same time, it would do away with much of the absurdity of the current system where a candidate can take all of a state’s electors by winning a plurality, even a very slight plurality, of the state’s popular vote.