Remove the Electoral College

Remove the Electoral College

Remove the Electoral College

by Sam Hockenbury

[UMass Amherst Democrats' Communications Director]

Remove the Electoral College and replace it with a popular vote where in you need 50%+1 votes to win.

    1. The system gives undo balance to smaller states.  Smaller (in terms of population) states are more rural and in theory would protect them from the larger more populous states.  This is a nice sentiment from a geographic perspective and if you believe that the President should represent the states.  But if you believe the President is supposed to represent the people then this unfairly hurts people who live in densely populated areas.  If over half the country lived in one city and the other half was spread out over the whole country, why should the second half have more of a say in voting than the first half.  Half the country has an urban experience and urban needs should be met, even if geographically they are small.
    2. It rewards states who limit suffrage.  The system was a creation of the slave states.  Slaves notoriously counted as 3/5 of a person and so count towards population, but could not vote.  Women counted toward population, but could not vote.  There was no political incentive to expand suffrage because the Electoral College by these measures made the votes of the limited voter pool stronger, and could shut down dissentious voices without paying for it on the national stage.  So, today, places that actively try to turn down voter participation benefit two fold.  One their state is more likely to go the way that the dominant party or ideology wants it to, but it also increases the power of those voters who are allowed to vote because the Electoral College is based (limitedly) on population and not actual voting. (This was a fear James Madison had as he was against the Electoral College.  Yeah, THE Father of the Constitution was against the Electoral College.  The framers didn’t act unanimously as we have made them seem to be in the American mythos.)
    3. The Electoral College also discourages minority opinions within their own state.  Ignoring the incentive to limit suffrage deliberately, the Electoral College endorses majority rule within states, and treats state votes as homogenous.  In Massachusetts there is little incentive for republican voters to show up on election day because they’ll lose the vote in the state and therefore their vote will count for nothing in the national election.  Even if they lose by one vote.  This can drive down turnout, or make the idea of mandatory voting less appealing because minority opinions get filtered out at the state level.
    4. The Electoral College also doesn’t ensure election processes are decentralized.  In a direct vote system, the states can still count their own ballots and report the numbers as they always do.  If an individual state is very close, or there is a question on the counting or legitimacy of the count in a particular state they’re can be recounts in those states.  The entire vote does not have to be re-counted or counted in a central location.  The threat of fraud is limited by this as local vote counts keep the process decentralized.
    5. The Electoral College does not keep elections from being easily “stolen” in fact no election that is fairly run can be “stolen”, that is just a negative term drummed up by losers in every cycle.  Thus the argument rests that it’s harder to steal a state then it is one voter in one random precinct.  But if that is the case and we take that argument to be true, then are presidential candidates regional candidates or are they national candidates?  The fear again is that the Electoral College forces candidates to appeal to more than one region.  While the math on this is true, the same can be said about popular vote.  One, now minority votes in each state count for something.  Democrats have a reason to spend time in deep southern states, Republicans aren’t wasting resources to get New Yorkers to vote for them.  So while regional attitudes are important we homogenize them too much and start cutting down voices.
    6. The house of representatives and the senate are both directly elected.  But in a larger sense the House members represent their local towns, and senators represent the needs of their states.  They are in a national office elected by people with non-national interests.  The president should represent all the people because it is the only true national office.  And while swing states change with time, a given election the swing states are known.  And before someone says 2016 is different no one knew that Michigan and Wisconsin were swing states you’re wrong.  Donald Trump knew.  He appealed to the rustbelt vote, he had no reason to bother appealing to Massachusetts or Californian voters.  His campaign was aimed squarely at the Midwest and the Clinton campaign missed the mark aiming at a south that they thought would be more winnable with changing demographics.  A full on popular vote, candidates still need to appeal to their “firewalls” and to other voters to maximize their ability to win.
    7. This may be the most important point.  The Electoral College has no need to heed the will of the people.  The laws that bind these delegates are on shaky legal ground as they could be unconstitutional depending on your view of the framers intent.  And even with these bindings, in the moment these electors can choose whoever they want.  It is a closed door meeting.  It likely would spark national outrage if they do decide a different outcome, but as long as the institution stands that sword hangs over our necks.  The system was designed out of a fear of the electorate.  Some will point to the fact that in history direct democracies fall.  Popular selection of a president is not direct democracy; it is still representative democracy where there are institutional and lawful powers that hold these leaders in check.  The Electoral College is not a check on the power of government, it is a check against the power of the people.  And news flash, any government can fall.  Any governing body is prone to corruption, and so if the Electoral College is corrupted and they ignore the will of the people, does it preserve our union or would that threaten to destroy it?
    8. And I also feel that I should clarify.  If Hillary Clinton won the Electoral College but lost the popular vote, I would still advocate for removing it.  No president should have their administration be delegitimized that they won in an unfair manner.  George W. Bush and Donald Trump will have to live with people on the left saying that they should have never been in office and if it were not for the archaic system I have pulled apart in the above and things would be better without them having been in office (true or not).  The people never wanted them in the first place, why do voters in Ohio matter more than other people, etc.  And if it happened to Hillary Clinton the questions of the election being rigged would have bogged down the opening or even the entirety of her administration crippling her ability to govern.  And that does no one any good either.

Ultimately this system is bogged down by many pitfalls and I fail to find the arguments for it to be convincing enough to keep it.  There will always be a struggle to find the best way that represents the people and their interests, and maybe if we changed the manner in which we vote that could improve things drastically.  But when it comes to the Electoral College, I find that it stands in the way of the national interest and damages the democracy all in the name of protecting us from ourselves.

CDM

6 Comments

  1. O Anthony
    November 30, 2016 at 20:13
    Reply

    There have been hundreds of unsuccessful proposed amendments to modify or abolish the Electoral College – more than any other subject of Constitutional reform.
    To abolish the Electoral College would need a constitutional amendment, and could be stopped by states with as little as 3% of the U.S. population.

    Instead, pragmatically, Massachusetts has enacted the National Popular Vote bill. It is 61% of the way to guaranteeing the majority of Electoral College votes and the presidency in 2020 to the candidate who receives the most popular votes in the country, by changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

    All voters would be valued equally in presidential elections, no matter where they live.

    Every vote, everywhere, for every candidate, would be politically relevant and equal in every presidential election.
    No more distorting and divisive red and blue state maps of predictable outcomes.
    No more handful of ‘battleground’ states (where the two major political parties happen to have similar levels of support among voters) where voters and policies are more important than those of the voters in 38+ predictable states that have just been ‘spectators’ and ignored after the conventions.

    The bill would take effect when enacted by states with a majority of the electoral votes—270 of 538.
    All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes in all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.

    The bill was approved this year by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
    The bill has passed 34 state legislative chambers in 23 rural, small, medium, large, red, blue, and purple states with 261 electoral votes.
    The bill has been enacted by 11 small, medium, and large jurisdictions with 165 electoral votes – 61% of the way to guaranteeing the presidency to the candidate with the most popular votes in the country

    NationalPopularVote.com

    • Samuel Hockenbury
      November 30, 2016 at 23:41
      Reply

      Thanks Anthony for your commentary. I am well aware of this proposal by various states in the National Popular Vote Interstate Compact (NPVIC). And while it is the easier path it is still not the right one. States can choose to leave the Compact at any time. The 11 signatory states that have agreed to it are all democratic states that saw Clinton and Gore lose when winning the popular vote. If the reverse had happened on Nov 8th where Clinton won the EC while losing the popular vote, you can bet Arkansaw would sign on and Massachusetts would peace out. Yes 105 votes are needed and 96 are in the works, but in North Carolina, it passed the State Senate in 2007, with no action from its house in 9 nearly 10 years. If I had to guess because that passage was so long ago, there would be a new legislative session in NC, and it would have to pass again. So we are not as close to getting the NPVIC as you seem to hope. Also, it still does nothing to eliminate the threat of Faithless Electors, who could make a case to the SCOTUS that the binding of Electors to any public will of any kind is unconstitutional and goes against the Framers intent. Do I honestly believe the electors would choose a different candidate one day, well the corrupt bargain the election of President Hayes makes me think yes they just may one day. In our Lifetimes? In Three weeks? No, but 5 years ago no one really believed the Cubs would win a World Series in our lifetimes either. The NPVIC is a great workaround that does not require congress and far fewer states to sign on. However, a full constitutional amendment removing the EC is the surest solution. Also every 10 years the number of EC votes per state changes and so if the wrong states gain population the NPVIC could fall apart that way too.

      • O Anthony
        December 1, 2016 at 19:28
        Reply

        . States canNOT choose to leave the Compact at any time.

        The National Popular Vote bill says: “Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”

        This six-month “blackout” period includes six important events relating to presidential elections, namely the
        ? national nominating conventions,
        ? fall general election campaign period,
        ? Election Day on the Tuesday after the first Monday in November,
        ? meeting of the Electoral College on the first Monday after the second Wednesday in December,
        ? counting of the electoral votes by Congress on January 6, and
        ? scheduled inauguration of the President and Vice President for the new term on January 20.

        Any attempt by a state to pull out of the compact in violation of its terms would violate the Impairments Clause of the U.S. Constitution and would be void. Such an attempt would also violate existing federal law. Compliance would be enforced by Federal court action

        The National Popular Vote compact is, first of all, a state law. It is a state law that would govern the manner of choosing presidential electors. A Secretary of State may not ignore or override the National Popular Vote law any more than he or she may ignore or override the winner-take-all method that is currently the law in 48 states.

        There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.

        In 1976, the U.S. District Court for the District of Maryland stated in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:

        “When enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”

        In 1999, the Commonwealth Court of Pennsylvania stated in Aveline v. Pennsylvania Board of Probation and Parole:
        “A compact takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.”

        In 1952, the U.S. Supreme Court very succinctly addressed the issue in Petty v. Tennessee-Missouri Bridge Commission:
        “A compact is, after all, a contract.”

        The important point is that an interstate compact is not a mere “handshake” agreement. If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact.

        Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause, any contractual agreement among the states would be, in fact, no more than a handshake.

        • O Anthony
          December 1, 2016 at 19:30
          Reply

          A survey of Arkansas voters showed 80% overall support for a national popular vote for President.

          The bill was approved this year by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).

          On February 4, 2016 the Arizona House of Representatives passed the bill 40-16-4.
          Two-thirds of the Republicans and two-thirds of the Democrats in the Arizona House of Representatives sponsored the bill.
          In January 2016, two-thirds of the Arizona Senate sponsored the bill.

          On February 12, 2014, the Oklahoma Senate passed the bill by a 28–18 margin.

          In Gallup polls since they started asking in 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states) (with about 70% opposed and about 10% undecided).

          Support for a national popular vote for President is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in every state surveyed recently. In the 41 red, blue, and purple states surveyed, overall support has been in the 67-81% range – in rural states, in small states, in Southern and border states, in big states, and in other states polled.

          Most Americans don’t ultimately care whether their presidential candidate wins or loses in their state or district . . . they care whether he/she wins the White House. Voters want to know, that no matter where they live, even if they were on the losing side, their vote actually was equally counted and mattered to their candidate. Most Americans think it is wrong that the candidate with the most popular votes can lose. We don’t allow this in any other election in our representative republic.

      • O Anthony
        December 1, 2016 at 19:32
        Reply

        Instead of being a deliberative body, the Electoral College, in practice, is composed of presidential electors who voted in lockstep to rubberstamp the choices that had been previously made by extra-constitutional bodies (namely, the nominating caucuses of the political parties).

        Starting in 1796, political parties began nominating presidential and vice-presidential candidates on a centralized basis and began actively campaigning for their nominees throughout the country. As a result, presidential electors necessarily became rubberstamps for the choices made by the parties. “[W]hether chosen by the legislatures or by popular suffrage on general ticket or in districts, [the presidential electors] were so chosen simply to register the will of the appointing power.”
        McPherson v. Blacker. 146 U.S. 1 at 36. 1892.

        Presidential electors have been expected to vote for the candidates nominated by their party—that is, “to act, not to think.”

        U.S. Supreme Court Justice Robert H. Jackson summarized the history of presidential electors as follows in the 1952 case of Ray v. Blair:

        “No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices.…

        “This arrangement miscarried. Electors, although often personally eminent, independent, and respectable, officially become voluntary party lackeys and intellectual nonentities”

        There have been 22,991 electoral votes cast since presidential elections became competitive (in 1796), and only 17 have been cast in a deviant way, for someone other than the candidate nominated by the elector’s own political party (one clear faithless elector, 15 grand-standing votes, and one accidental vote). 1796 remains the only instance when the elector might have thought, at the time he voted, that his vote might affect the national outcome.

        States have enacted and can enact laws that guarantee the votes of their presidential electors

        The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).

        Pennsylvania law empowers each party’s presidential candidate to nominate all elector candidates directly. The presidential nominee is, after all, the person whose name actually appears on the ballot on Election Day and who has the greatest immediate interest in faithful voting by presidential electors.

        North Carolina law declares vacant the position of any contrary-voting elector, voids that elector’s vote, and empowers the state’s remaining electors to replace the contrary-voting elector immediately with an elector loyal to the party’s nominee.

        The Uniform Faithful Presidential Electors Act has a state-administered pledge of faithfulness. Any attempt by a presidential elector to cast a vote in violation of that pledge effectively constitutes resignation from the office of elector. The Act provides a mechanism for immediately filling a vacancy created for that reason (or any other reason).

      • O Anthony
        December 1, 2016 at 19:34
        Reply

        There have been hundreds of unsuccessful proposed amendments to modify or abolish the Electoral College – more than any other subject of Constitutional reform.
        To abolish the Electoral College would need a constitutional amendment, and could be stopped by states with as little as 3% of the U.S. population.

        Instead, pragmatically, The National Popular Vote bill is 61% of the way to guaranteeing the majority of Electoral College votes and the presidency in 2020 to the candidate who receives the most popular votes in the country, by changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

        All voters would be valued equally in presidential elections, no matter where they live.

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