By: John C. Lesher
Yes, an Anachronism
Much debate is being joined over the concepts of direct or indirect election of America’s chief executive, The President. Because of a complicated compromise made during the debates in the 1780’s over Constitutional provisions, citizens were given the right to cast a vote during a Presidential election, but not for the President. These votes by citizens were for “electors” chosen by each state who would elect the President in a separate ballot. In spite of the tens of millions who go to the polls every four years and vote—so most believe-- for their preferred Presidential candidate, the fact is that these millions of first round votes only empower 538 individuals, the electors, to engage in a subsequent round of voting. This second round of voting actually elects the president.
Each state is given a certain number of votes by electors and each state sets its own rules as to how electors are appointed and how the electors from that jurisdiction must vote during the second round. The 538 number is the total of seats in the House of Representatives (435), plus the number of federal Senators (100), plus 3 electors representing the District of Columbia. As examples, New Jersey has 12 Members of the House of Representatives and two Senators. It therefore has 14 electors. Delaware has one House member and two Senators. Delaware therefore has three electoral votes. If a candidate garners 270 electoral votes, that individual becomes President, regardless of the public’s “popular” vote total for any candidate.
Those few sentences were a very broad-brush summary of an arcane process, but they serve to give sufficient purpose to a questioning of the electoral college system. A case can be made that 230 years ago the adoption of an indirect electoral process made sense. American democracy, and its national voting for a chief executive, was a new concept, untested and uncertain. Mass education and mass communication were many years in the future and the Founders wondered whether the “average” or “typical” citizen had the background and insight to cast a meaningful ballot. Would the unsophisticated voter be inclined to listen to the siren song of a charismatic demagogue? An Electoral College presumably populated by better educated and politically sophisticated citizens was presented as a guardian against rash judgment. Elitist? Completely out of sync with current thinking? Yes, definitely, but for its day, it can be argued that it was a rational decision to a perceived problem.
But this is not 230 years ago. This is 2020 and we have universal suffrage, instant global communications, high levels of literacy and decades of political experience, including a seemingly never-ending Presidential primary season. So why do we keep the electoral college? It is difficult to argue against the claim that the electoral college is an anachronism and its value as a balancing force has dissipated. Simple fairness would seem to indicate that a candidate receiving the most votes for an office should be awarded the position sought. After all, the Presidency is the only elected position in our federal system where popular vote does not dictate the winner.
The Clinton v. Trump contest in 2016 is the most recent example of the popular vote leader not becoming President, but this is not a new occurrence. As far back as 1824, Andrew Jackson won the mass vote by a wide margin in a four candidate field but was denied the Presidency. These historical facts beg the question of whether or not we should change the system, but before rushing into a permanent alteration of policy and process, we should step back and think a bit.
Beware of Unintended Consequences
When the Electoral College was conceived, The United States of America was an east coast entity of 13 former colonies and approximately three million citizens represented in the House of Representatives by 65 members, 10 of whom were from Virginia. The Founders had the wisdom to recognize that the original House set-up was somewhat unbalanced and arbitrary. It needed to be modified periodically to reflect the assumed growth of the nation’s population and the possible shift in that population’s geographic locations. Expanded House seating and the addition of new states also were considerations.
The method chosen to address these matters was the requirement of a national census every 10 years followed by the re-allocation of seats in the expanding House based on the results of each census. Voting power in the “People’s House” was to be shared by the states in proportion to each state’s population relative to the national population. If your state had four percent of the nation’s census population, your state would be allocated four percent of the seats in the House, subject to the rounding of fractional seats.
In the subsequent centuries the House of Representatives has grown to 435 members; we now have 50 states, over 3,000,000 square miles of land mass and our census population is well over 300 million. More importantly, the nation has seen dramatic shifts in geographic concentrations of that population. The demographics of today’s America were not contemplated by the Founders and those demographics must be considered in any effort to change the Electoral College system to a direct election of the President by popular vote of the people.
John Kasich understands America’s population demographics. Kasich, a nine term Member of the House from Ohio and a former governor of that state, as well as a Republican presidential candidate in 2016, was on network television in December of 2019 and was asked whether he would favor direct presidential election by the people. His answer was a simple, but emphatic, “No.” Asked to explain, he smiled and said “because I don’t want California to tell me what to do.”
What was Kasich Thinking?
Through the census cycle of 2010, four states dominate membership in the House of Representatives: California, Florida, New York and Texas. Collectively, these four have 143 of the 435 seats (32.8%). This percentage should increase somewhat after the 2020 census, with preliminary estimates indicating that California is expected to retain its 53 seats, New York to lose at least one seat, and Florida and Texas to gain several. Eight percent of the states therefore will have more than one third of the voting power in the House. They also have approximately one third of the nation’s census population and, presumably, one third of registered voters.
Kasich, the experienced politician, intuitively grasped the two fundamental realities of switching from an Electoral College system to a popular vote mandate. Under a popular vote system, states with very large populations will dominate any electoral campaign and, just as importantly, have outsized influence over any congressional legislative initiatives, particularly those initiatives proposed by a sitting president seeking re-election. The delegations from large population states will demand favorable consideration in such legislation in return for support during election cycles. Congressional “pork” will therefore be rationed disproportionately to the large-population states.
Under popular voting, presidential candidates will focus their campaign efforts on a relatively few jurisdictions. For example, California is an overwhelmingly Democratic Party state where Hillary Clinton won almost 62% of the popular vote in 2016. The Democratic presidential candidate will visit to raise money but will have little need to do intensive campaigning. The votes for Democrats are secure and attracting more votes is not an efficient use of time or money. Under the all-or-nothing electoral college system utilized by most states, all 55 of California’s electoral votes went to Clinton in 2016 and would have done so whether she had spent significant resources there or not. Her time was better spent in smaller, marginal states where the predicted Democratic/Republican vote split was relatively close.
The lack of campaigning is also true for Republicans in California, but for different reasons. Republican presidential candidates assume they will not win the state’s electoral votes and do not mount intensive campaigns. Like Clinton, they concentrate on states where the chance of gaining voting majorities is feasible.
Now, consider the change that will occur if a switch to popular voting is adopted. Keeping California as an example---Since popular vote totals would rule, each Party will pour resources into California and its near-forty million residents: Democrats to protect what they already have and Republicans to woo converts. The all-or-nothing Electoral College rules no longer apply and each candidate would get its portion of the vote. This attention is good for residents of California, but it comes at the cost of having a greatly reduced presence by candidates in states that formerly received campaign attention. This scenario will be repeated in a few large states and much of the American public will be on reduced rations when it comes to attention by candidates and the distribution of federal monies.
A pragmatic negative factor is the process by which the required constitutional amendment would be adopted. If the process is the standard one whereby 75% of the 50 state legislatures must approve an amendment, the possibility of ratification of a switch to popular voting is very problematic. Seven of our states have only one seat in the House of Representatives because of small populations. Five others have only two votes and three more have only 3 Members in the House. Why would these 15 small-population states (with a collective 26 votes in the House) ever vote to ratify an amendment giving power to large states such as Texas and Florida with their combined 63 House votes? Thirty-eight ratifying votes are needed for passage of a Constitutional amendment and 15 votes against such an amendment presumably will be cast by those small states.
Does this mean that we should keep the Electoral College? Not at all. Much depends on the individual voter’s view of democracy. How important is the popular will when it comes to an election? Intuitively, the collective will of the people should decide who represents us, but the pragmatic reality is that a switch to a popular vote system in the face of twenty-first century demographics will have negative consequences. Legislative dominance by a few states and a fall-off in campaigning in all but the largest states is the prediction of this blog. What do we, as a people, want and what consequences are we willing to accept?