Monday, December 19, 2016

The Electors Vote

On this Monday after the second Wednesday in December, the members of the electoral college (or, more accurately, 51 individual electoral colleges) are meeting, as prescribed by the Constitution, “in their respective states” to “vote by ballot for President and Vice-President.” On January 6, their votes will be counted at a joint session of both houses of Congress, at which the present Vice President (in his role as President of the Senate) will definitively announce the results.

Whatever the Framers’ original intentions, the electors have long since ceased to be independent actors (although they remain so constitutionally). Instead, they are nominated by their political party, and, if they are elected (i.e., if their party carries their state), then everyone’s expectation is that they will vote for their party’s candidates. Hence we can usually quite safely predict the final electoral tally long before the electors actually vote. Knowing the likely result, one or more “faithless” electors occasionally cast a symbolic vote for someone else, confident that their faithlessness will not affect the ultimate outcome.

“Faithless” electors aside, the main objections many raise against the electoral college come from the way it distorts the vote (and the campaign by causing some states to matter so much more than others) and the fact that occasionally in American history the candidate who won the electoral vote actually lost in the popular vote. John Quincy Adams lost both the popular and the electoral vote in 1824, but was elected by the House of Representatives. Then in 1876 Rutherford B, Hayes lost the popular vote by more than 250,000 but won the presidency by a margin of one (disputed) electoral vote. Twelve years later, In 1888, Benjamin Harrison lost the popular vote by more than 90,000 votes but won the presidency by 233 electoral votes to Grover Cleveland’s 168. More recently, in 2000 George W. Bush lost the popular vote by 540,000 votes but narrowly beat Al Gore in the electoral vote 271-266. Finally, in this year’s election, Hillary Clinton won 65,746,544 votes (the highest popular vote of any candidate in history except Obama) to Donald Trump's 62,904,682 - an unprecedentedly large difference. But Trump is expected to defeat Clinton in the electoral vote 306 to 232.

One may indeed lament Clinton’s loss and Trump’s victory. One may regret that Vladimir Putin's apparently preferred candidate will become president instead of the candidate who got the most votes from American voters. But does it therefore follow (as some suggest) that the electoral college has outlived its usefulness and should be replaced by direct, popular election of the president? Despite the manifestly unfortunate 2000 and 2016 outcomes, on this question my opinion remains unchanged, and I answer: No.

So why do I favor keeping the Electoral College?

To start with, it is our national history and political tradition, the reality and consequences of which cannot be ignored. Like Edmund Burke, I treasure the intricate pattern of inherited customary institutions, which reflect and respect the lessons of historical experience and restrain the system from poorly thought-through innovations and their unintended consequences.

Of course, I recognize that if we were starting our country today we almost certainly would not create the electoral college – just as, for example, if Canada were being created out of the blue today it probably would not be created as a monarchy. But neither is the case. Like 17th and 18th-century philosophers' "state of nature," such scenarios are abstractions from real human history. Instead of abstractions, both our countries have actual histories and institutions (the electoral College in the United States, the monarchy in Canada) which reflect and respect the way history has formed us.

But the historical character of the electoral college is not just a matter of sentiment. The independent body of electors whom the Framers envisaged never developed as intended. Instead the electoral college evolved as an arm of the American system of political parties, and has been a major contributor to our two-party system. Third party candidates continue to make mischief in our elections – notably in both 2000 and 2016 – but, generally speaking, they remain marginal, because it is so difficult for a third party to win enough electoral votes either to win or to throw the election to the House of Representatives. In a direct, popular election, that would change overnight, and it would not be long before third parties proliferated, further undermining our already much weakened political parties.

(A multi-party system may work quite well, but usually in a parliamentary system in which parties which individually lack an electoral majority may combine in a coalition. Our presidential system effectively precludes that.)

All electoral reforms have unintended consequences, and most of those consequences in the last 100 years of electoral tinkering have resulted in the gradual weakening of our political parties (and with that the increased influence of money and social media). The weakening of our political parties has not only resulted in the nomination of unsuitable candidates. It has also resulted in the decline and virtual destruction of party cohesion and discipline in Congress, which has directly and adversely impacted the ability of any President or congressional majority to govern in a normal way. 

Also, unless a second “runoff” election were built into any such reform, an additional impact of direct popular elections and the growth of third parties would be the election of presidents with only a plurality of the votes – and, depending upon how many candidates there are, perhaps even a very modest plurality. Even in our current system, several modern presidents, who have won the popular vote, have nonetheless been elected with less than 50% of that vote. But the Electoral College creates a clear majority, and thus is an important contribution to electoral legitimacy.

Just as bad institutions (e.g., judicial review, something infinitely more undemocratic and antidemocratic than the electoral college) sometimes produce good outcomes (e.g., Brown v. Board of Education), so too sometimes good institutions will produce bad outcomes. All political processes carry some risk of occasional bad outcomes, and making a political process more "democratic" certainly does not in the end guarantee a good outcome all of the time. Well schooled as they were in history and classical political theory, the Framers of our constitution distrusted populist democracy for its receptiveness to demagoguery and propensity to tyranny. Our continued acceptance of our constitution's many non-democratic institutions (e.g., the Senate) reflects a recognition that multiple values are at stake in politics.

The electoral college is also sometimes defended as an aspect of federalism, in that it requires a winning candidate to carry multiple states and makes it impossible to win with just a big pile of votes in a few large states like California and New York. Personally I am no great fan of federalism, which in some ways may be the constitution's second original sin after the even greater sin of slavery, both of which the Framers were forced by their historical situation to compromise with. But I do recognize geographical and cultural diversity, and so I do see great value - both for electoral legitimacy and for efficacy in governing - in having to appeal to (and win) multiple states with diverse constituencies. It really is not such a good thing, for example, that the Democratic party, which in terms of actual votes cast may really be the nation's majority party, is at the same time largely a provincial coastal party. If the electoral college causes the Democrats to try to broaden the party's geographical reach by broadening its economic and cultural appeal, that would be a good thing - both for the Democratic party and for the country as a whole.

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