Many are writing about the Electoral college. Can it still prevent Trump’s election, and should it be abolished?
Like almost everybody, I have much to say about the US election results. The core will come later — including an article I was preparing long before the election but whose conclusions don’t change much because of the result, since Trump getting 46.4% is not (outside of the result) any more surprising than Trump getting 44% like we expected. But for now, since I have written about the college before, let me consider the debate around it.
By now, most people are aware that the President is not elected Nov 8th, but rather by the electors around Dec 19. The electors are chosen by their states, based on popular vote. In almost all states all electors are from the party that won the popular vote in a “winner takes all,” but in a couple small ones they are distributed. In about half the states, the electors are bound by law to vote for the candidate who won the popular vote in that state. In other states they are party loyalists but technically free. Some “faithless” electors have voted differently, but it’s very rare.
I’m rather saddened by the call by many Democrats to push for electors to be faithless, as well as calls at this exact time to abolish the college. There are arguments to abolish the college, but the calls today are ridiculously partisan, and thus foolish. I suspect that very few of those shouting to abolish the college would be shouting that if Trump had won the popular vote and lost the college (which was less likely but still possible.) In one of Trump’s clever moves, he declared that he would not trust the final results (if he lost) and this tricked his opponents into getting very critical of the audacity of saying such a thing. This makes it much harder for Democrats to now declare the results are wrong and should be reversed.
The college approach — where the people don’t directly choose their leader — is not that uncommon in the world. In my country, and in most of the British parliamentary democracies, we are quite used to it. In fact, the Prime Minister’s name doesn’t even appear on our ballots as a fiction the way it does in the USA. We elect MPs, voting for them mostly (but not entirely) on party lines, and the parties have told us in advance who they will name as PM. (They can replace their leader after if they want, but by convention, not rule, another election happens not long after.)
In these systems it’s quite likely that a party will win a majority of seats without winning the popular vote. In fact, it happens a lot of the time. That’s because in the rest of the world there are more than 2 parties, and no party wins the popular vote. But it’s also possible for the party that came 2nd in the popular vote to form the government, sometimes with a majority, and sometimes in an alliance.
Origins of the college
When the college was created, the framers were not expecting popular votes at all. They didn’t think that the common people (by which they meant wealthy white males) would be that good at selecting the President. In the days before mass media allowed every voter to actually see the candidates, one can understand this. The system technically just lets each state pick its electors, and they thought the governor or state house would do it.
Later, states started having popular votes (again only of land owning white males) to pick the electors. They did revise the rules of the college (12th amendment) but they kept it because they were federalists, strong advocates of states’ rights. They really didn’t imagine the public picking the President directly.
As far as I have read, they actually felt the college, even chosen by popular vote, would be a defence against what you might call a “regional candidate.” A regional candidate would be one who was wildly popular in their own region, but only modestly popular outside it. They genuinely wanted it to not be possible to win unless one had support all over the country, and thus could win half the states (which is, very roughly, what winning half the college meant.) In those days the country was divided north to south, while today it’s urban vs. rural (or coast vs centre.)
For example, imagine a candidate who was hugely popular in 1/3 of the states, winning 80% of the vote in them. But then imagine that in the other 2/3 of the states, on average, they only could pull 40% of the vote, to 60% for their opponent. This regional candidate would get 53% of the popular vote, but only 1/3 of the college. The college was designed to give the White House to the candidate who won 2/3 of the states but lost the popular vote. This is not a bug, I believe, but an intended feature. They wanted a winner with broad geographic support.
If so, you can see the problem for Mrs. Clinton. When you look at the map, Trump’s geographic dominance (as has been the case for all Republicans of late) is massive when you count the number of states or look at land area. It is only because Clinton’s 21 states are much more populous than Trump’s that it’s even close. They did intend for more populous states to have a stronger say, but they did not want it to be purely about population. (The Senate was designed with a stronger version of that philosophy.)
In fact, it’s really about California. Without California, Trump wins the popular vote handily, and of course the college. In fact, Trump wins the popular vote if you simply remove Los Angeles and San Francisco from the count. (The same was true, I read, about McCain over Obama.) In fact, either the Bay Area or L.A. are almost enough on their own to account for Clinton’s popular vote margin, that’s how strongly pro-Clinton those towns were, and that in an election where every Californian knew how the state would go in advance and that their personal vote was just for show.
What would you ask of a faithless elector?
The call for electors to reject Trump is a challenging one. You would be asking the elector to betray the will of the voters in their state who elected them. And you would be saying to them, “even though the plurality or majority of voters in your state selected Trump, you should ignore that and vote Clinton because so many Californians liked Clinton that she won the national popular vote.”
Whatever you might think of the college, the electors definitely represent their state, not the country or people in other states. So this is a pretty difficult ask.
There are a couple of arguments that might hold sway, however.
First, it is clear in my mind that there are lots of efforts to rig elections through voter suppression and other factors. Both parties do it, but the Republicans are definitely doing it more. This is a travesty and should be stopped, but it’s hard to stop it. They play within the letter of the rules, but strongly against their spirit.
As such, if one could make a case in a state that there was sufficient and documented voter suppression sufficient to flip the result in that state, I think an elector could, in good conscience, flip their vote, because they would be faithfully expressing the actual will of the voters in their state.
Secondly, though this is more self-serving, a group of electors could decide to not vote “winner takes all” style. That is to say, if a state went 52% Trump, 48% Clinton, then 48% of the electors could vote Clinton and feel they are reflecting the will of the voters in their state. Of course, that’s not what they promised to do, and it’s not what the state’s rules expect them to do, but it is actually, in a way, the right result. (It is not what their party expected them to do when it put them on the ballot, either.)
As noted, there are states that don’t do winner-takes-all. Many people wonder why winner-takes-all is so popular, but that’s easy to explain. A state that offers the prize of all its electors to a candidate will get more attention in an election. Candidates will work harder to woo a state where they might flip a large block of electors, compared to a state where a lot of hard campaigning might win them just 1 or 2 more electors. If Florida is winner-takes-all and Ohio is proportional, Florida becomes the must-win and gets all the attention.
Secondly, the state’s rules are set by the state house, which is partisan. Usually the state house is the same party as the state’s presidential choice, and so the state legislature will pick winner-take-all to give their party an important juicy prize. In the cases where a state house is one party in a state that votes the other way for President, it could make sense to become proportional, but such imbalances are rare and more importantly temporary. A switch to proportional in such a case will help your party, but probably burn it next time, and switching back and forth is hard — it usually requires that the governor and state houses be all of the same party, which is less likely in a mixed state. And of course such mixed states are swing states, eager for the rewards of being a winner-takes-all prize.
Just plain ignore the popular vote
There are some who propose that because the college’s original design was as an alternative to the popular vote, it is the duty of the electors to ignore that vote if the public voted foolishly. That indeed the purpose of the college is to be a safety valve, a check and balance on the public’s ability to be tricked by a demagogue. That this has happened and so the college should play this role. They make their case at The Hamilton Electors Site. There is merit to their interpretation of the original intent, but I admit discomfort at the idea. This idea exists still in other places. For example, strictly the Queen and her governors-general have the official power in the parliamentary commonwealth countries, and this was even used in Australia, though in a highly controversial way. The idea that the electors should overturn the vote simply because they are wiser than the public is a risky one — and would probably result in the abolishment of the college. I have asked supporters and they say this does not have to do with Clinton winning the popular vote, they would still advocate for this even if Trump had handily won both popular and EC votes.
So how would you abolish the college?
If we presume that you don’t agree with the framer’s desire to promote candidates with broad geographic support over regional superstars, you could work to replace the college with a straight popular vote. Of course, you really have to do that outside of an election. An effort to do it because you got burned by it is going to be viewed as overwhelmingly partisan. The Republicans could make a push for it right now, the Democrats can’t.
The purest way to do this would be a constitutional amendment. But that’s very unlikely. Especially now that the college has favoured the Republicans twice in the last couple of decades. You need 3/4 of the states, and it’s pretty unlikely so many Republican states would deal away something that seems to slightly favour them. And the swing states, as noted, love the idea of being swing states. They would have to sacrifice their political importance to change this. It’s a very tall order.
The alternate method proposed has been multi-state compacts. In a compact, a group of states get together and agree, “All our electors will vote for the winner of the national popular vote.” In fact, there is already such a compact, the National Popular Vote Interstate Compact which has had bills passed in 10 states and DC, with proposals in a couple more states. The passed states represent 165 electoral votes, which seems huge — until you realize they are mostly safe Democratic states. This compact does not come into force until 270 votes worth of states have passed it. This would assure the compact total power over the college and effectively abolish it.
The Compact seems to be doing well, but to work it has to be bi-partisan. You can’t do it just with mostly Democratic states.
It turns out, if you get a bi-partisan group, you can do it with far fewer states. A compact that represented about 50 safe Democratic votes and 50 safe Republican votes would be sufficient in my view. That block of 100 would work because any election where the popular vote and college differ is by definition a close election, and a close election will not have a 100 vote margin in the college. Trump’s election didn’t and Bush’s was on a tiny margin. If you like, you could bump it to 60 or 70 votes of each kind to be more fully safe. But in theory, a workable compact could be built from as few as three states — for example, California, Texas and just one of Tennessee, NC or Georgia would suffice.
The reason this is easier is it requires only safe states. In fact, the NPVIC above has already got far more than 50 safe Democratic votes signed on. In fact, California is all you need on that side. Safe states have a motive to join this compact, because today they are ignored in elections. Candidates don’t try to bribe them with goodies. If the safe states join a compact, suddenly all campaigns become national, and candidates go where the voters are nationwide.
Two factors go against this:
- “Where the voters are” is going to be mostly urban. You are going to hold your rallies where they can be large, and in large media markets.
- Nobody can escape the fact that when the college has gone against the popular vote in this century, it’s helped the Republicans, and so safe Republican states will be less willing to join such a compact.
- It discourages a counter-majority candidate from the state, including California Republicans like Reagan and Nixon or Texas Democrat Johnson, who gain a lot of value from the ability to flip that huge block of votes.
Finally, it is just barely possible to have an election where the popular vote loser wins the college by over 100 votes. Purists will be afraid of that and push for 270, which is almost impossible to get.
I first outlined the idea of a small compact in 2006 which was the right time to work on such things. Back then, the college and popular vote had only disagreed once in the past century, and even Republicans were starting to see it may not have been a good result. Today it’s a taller order, though there are many anti-Trump Republicans who might support it.
But you would be crazy to do any of this now
The harsh reality is that the sudden increase in interest in changing the college or using it as a tool to unseat Trump is 99.9% partisan dissatisfaction with the result. Change to the college will only happen when this election is a distant memory. At attempt to alter the results now would have to be massively well founded, or there would be a non-minor risk of civil war. Trump caused one of his many scandals when he said:
Hillary wants to abolish, essentially abolish, the Second Amendment. By the way, and if she gets to pick —if she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know.
This was taken as a threat of armed insurrection if Clinton tried to weaken the 2nd amendment by some, but whether you thought that or not, my estimation is there would be a serious risk of it if the college does not elect Trump.