Electoral College pass/fail

The first installment of Truth Serum. It won't hurt a bit

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I’m a fan of democratic processes within republican governance. The civics nerd in me gets way too excited about debates over separation of powers and subsidiarity and the like. If my attention span weren’t so short, I probably would have become an academic.

But here we are. Your first dose of Truth Serum.

I want this column/feature to discuss problems in politics, policy, communications, and the like. It may ramble (sorry). I expect the focus to improve after I set the stage. At least it better improve or I’ll do something else with it. Please let me know. The absence of an editor can be liberating, self-indulgent, or both. Keep me on track.

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There’s concern bordering on alarm on the political right about the future of the Electoral College, how people on the progressive left are trying to undermine or eliminate it, and how big a deal that may be.

For starters, Joe Biden saved the Electoral College. Temporarily.

He got 7 million more votes than Donald Trump and won a majority in the Electoral College. The 46th president averted (or perhaps only postponed) another crisis in the public’s confidence in American institutions.

It’s unclear, though, whether Biden’s win will slow growing calls to undermine the Electoral College’s legitimacy. And how much longer the Electoral College, as now constituted, should remain legitimate.

A Trump Electoral College win paired with a Biden popular vote victory would have marked the second consecutive presidential election — and the third in two decades — in which the national popular vote runner-up became president. Bush-Gore 2000 also marked the third straight election in which the winning candidate failed to receive an outright majority of the popular vote; Bill Clinton won 43% of the vote in 1992 and 49.2% in 1996.

Democrats and progressives saw nothing “undemocratic” about Clinton winning three-way presidential races twice even though he never won a popular majority. In 1992, in fact, he won outright majorities only in Arkansas and D.C. 

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But the left was plenty lit about the Bush and Trump wins, and it’s hard to tell which one made them madder. 

• George W. Bush, because a 7-2 majority of the U.S. Supreme Court said the Florida Supreme Court refused to come up with an objective way to validate ballots (and then a 5-4 majority said it was too close to the inauguration date to let Florida figure it out).

• Or Donald Trump, because Hillary Clinton neglected a few key rust belt states and let Trump’s team sneak out a win. (Maybe it was just Trump.)

If we’re to prevent dangerous instability (see January 6), having the “loser” win probably isn’t sustainable. 

Between POTUSes 43 and 45, progressives have argued the Electoral College is an anachronism. Some say racist. They’re floating a host of ways to reform it. Some would scrap it entirely.

In an article for Politico, law professor Edward Foley of The Ohio State University noted the original intent of the Electoral College — ensuring the president was a consensus choice — ran aground in the election of 1800. Thomas Jefferson and Aaron Burr tied with the most electoral votes. (Fans of the musical “Hamilton” can take it from here.)

Hence, the 12th Amendment. It said electors must cast separate votes for president and vice president. In this way, Jeffersonians argued, the president would reflect popular sentiment. But letting states choose electors served as a buffer to restrain demagogues. 

The system has worked. Largely

But progressives remain unhappy. The Brennan Center for Justice at New York University Law School wants to amend the Constitution, abolish the Electoral College, and have the president elected by popular vote.

This idea has the advantage of being constitutional. The downside? It’s nuts. You could easily imagine well-funded demagogues getting ballot access in enough states to win a nationwide plurality in a four- or five-way race, taking the White House while getting nowhere close to majority support.

Another pernicious proposal is The National Popular Vote Interstate Compact.

From the organizers’ website

The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.”

The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.

In other words, the winner of the popular vote nationally would automatically get all the electoral votes of every state in the compact. The compact would kick in when legislatures accounting for a majority of the votes in the Electoral College agreed to join.

If the Democratic nominee won the national popular vote, but the Republican won, say, Texas and Florida, and they’ve joined the compact, then the Democrat would get all the electoral votes from Texas and Florida. Disenfranchising voters in two of the nation’s four largest states.

A candidate wouldn’t need to campaign outside California, Texas, Florida, New York, and the midwest. He could squeak out wins in those heavily populated, electoral vote-rich states, and lose most of the others by huge margins — perhaps even losing the popular vote overall — and, under the compact, still get the 270 votes needed to become president.

The compact would neuter the Electoral College. But, like the Brennan Center plan, it would be constitutional. States decide how they choose presidential electors.

Forty-eight states and the District of Columbia use the winner-take-all formula. Two don’t: Maine and Nebraska. Each state gives two electors to the statewide winner and awards the others to the candidate who won the popular vote in each congressional district.

Ohio State’s Foley suggested states could divide electors based on the share of the popular vote each candidate wins. Other states have looked at Maine and Nebraska as possible models for reform.

Right-of-center folks generally have dismissed any far-reaching changes to the Electoral College. I’m with them. For now.

In winner-take-all elections, winning should mean something.

During the debate on the 12th Amendment, Tennessee Rep. George Campbell, a Jeffersonian, said, “in all free Governments the will of the majority must be considered for the purposes of Government as the will of the nation, and that it ought, therefore, to prevail and control the will of the minority when opposed to it.”

Our Constitution and Bill of Rights prevent a fevered majority from trampling minorities. But they don’t silence majority sentiments, either.

As usual, the Founders set a proper balance, relying on federalism. Let states figure this out in ways that satisfy their residents without binding non-residents unless they agree.

States may want to emulate Maine and Nebraska, giving people in red and blue congressional districts (or concentrated communities of independents) within the same state more of a voice. 

Even the national compact idea, goofy as it sounds, could be ignored or overturned by individual state legislatures, so long as they didn’t incorporate the compact in their constitutions.

Or maybe nothing changes. We muddle on. 

Muddling on worries me. A system that realistically could have allowed the second-place finisher in the national popular vote to win the presidency in three of the past six cycles poses a problem.

Other than letting the laboratories of democracy perform their voting experiments, I’m not sure what else to suggest.

What do you think? Email the.deregulator@yahoo.com or leave a comment. Let’s continue the discussion.

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