Sunday, October 21, 2012

The Electoral College: Part II

This is the continuation of my previous post on the Electoral College.  Here, I consider the impact the Electoral College has on modern presidential campaigns, as contrasted with a system direct popular election that was called for in the Bayh-Celler Amendment.  You might want to go back and read the previous post first.

The Electoral College Today

Were some extra-terrestrial political scientist to land in the United States sometime over the next two weeks, and were he, she or it to observe the campaign currently underway, our visitor might report back to the planet Wmzypholg that Mr. Obama and Mr. Romney were in a close contest for the presidency of Ohio.  Both candidates are so shameless in flaunting their love for Ohio that one wonders why they ever leave that state.  Ohioans might be wondering if they ever will.  Talking heads on television can’t seem to repeat often enough, “No Republican has ever won the presidency without the support of Ohio.”  We are treated to the spectacle of a Republican governor seeking re-election by boasting about the low unemployment level in Ohio, while the Republican candidate for President talks incessantly about high unemployment in Ohio.  Democrats plan to keep Ohio in their column by touting the number of Ohio jobs saved by the federal bailout of the auto industry, which is centered in Michigan.  I mean no slight to Buckeyes, but might we ask just what makes them so important as to serve as virtual proxies for the rest of the nation in a presidential election?

It also has not escaped our notice that presidential candidates seldom come to Vermont.  True, Mitt Romney holed up in West Windsor for a week to prepare for the first debate, but we never saw him.  Barack Obama did visit Burlington for a fund raiser last spring, but for all the attention we have received since our space visitor could be forgiven for concluding that we had joined Canada.  We feel a bit ignored, neglected or maybe just taken for granted.  We are not alone.  In fact, the majority of states receive scant attention by presidential candidates and for good strategic reasons, given the realities of the Electoral College.

We saw in the previous post that presidents are elected on a state by state basis, usually with the winner of each state taking all of that state’s electoral votes, no matter how small the margin of victory.  It is conceivable, but unlikely, that a candidate could win with only narrow victories in 11 states: California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, Georgia, North Carolina, New Jersey—270 votes among them.  Combine that with the fact that most states are dominated by one or the other of the two national parties and one can begin to understand how the Electoral College shapes—in the view of some, distorts—the presidential campaign.  With three electoral votes to offer, and a reliable record of supporting Democrats in recent years, Vermont is just not a high priority for either candidate.  To the Obama Campaign, we are already in the bag.  To the Romney Campaign, we are a hopeless cause.  Neither has an incentive to expend time or resources here for all of three electoral votes and neither candidate is likely to drop by just to admire the fall foliage. 

The picture is not all that different for large states that reliably support a single party.  The Obama campaign knows it can assume that California, Massachusetts and New York will deliver their combined 98 electoral votes for Mr. Obama.  No need to expend much effort in any of those states.  The Romney campaign knows it has Texas, Georgia and Indiana, giving them 74 votes that are virtually uncontested.  In fact, it appears that President Obama currently has a safe 259 electoral votes, while Governor Romney trails with only 199 safe electoral votes.  So 458 electoral votes are practically uncontested and the race is on for the remaining 80 votes.  Many of these come from states that “lean” one way or the other, meaning they are more likely than not to support a single party, but their outcome is not so assured.  Candidate may spend time there and the campaigns will certainly be planning active “get out the vote” measures for Election Day.  But the real contest is now focusing on the few remaining swing states

Now let’s return to Ohio: 20 electoral votes and perhaps the swingiest of the swing states, no wonder it is getting all the love.  Ohio is joined by several other swing states that will actually determine who will occupy the residence at 1600 Pennsylvania Avenue in Washington for the next four years.  Florida and Pennsylvania are typically in play.  This year they are joined by Virginia and Wisconsin, and maybe New Hampshire, Nevada, Colorado and Iowa.  In most of these the swing seems to favor President Obama, giving him perhaps 277 electoral votes, enough to win.  But that could still change.  Watch Ohio, Wisconsin and Iowa closely.  You can bet the family farm the campaigns are.

As things stand now, a Republican voter in Vermont or a Democratic voter in Texas might as well stay home, unless there are down-ticket contests that motivate them.  Their votes are not really nullified by the Electoral College.  Since their presence in the state is counted for purposes of Electoral College apportionment (remember, same as the congressional delegation) their votes are effectively transferred to the other party, whether they actually cast a ballot or not.    Although it is hard to prove, critics suggest this might depress voter turnout in all but the swing states.  If the campaigns are not focused on the safe states, maybe their local issues will not be addressed.  Campaigns and supporting groups are less likely to spend for advertising (perhaps a blessing) in states where the end result is all but determined.  Parties are less inclined to work to get out the vote.   

As happened in 1876, 1888 and 2000, the winner of the popular vote still might not win 270 electoral votes, violating the one-person-one-vote rule of modern democratic politics.

Were a system of direct popular election used, every vote in every state would count equally.  Even voters who support a minority party in their state, Democrats in Mississippi or Republicans in Massachusetts, would have an incentive to vote, knowing they are contributing to a national vote tally.  Parties would have an incentive to register voters in every state and campaigns would have to address potential voters in every state.  Maybe candidates would even come to Vermont.  It is lovely this time of the year!  Of course, everything has its downside.  People who live in states currently taken for granted would find their television stations beaming a lot more campaign commercials their way and they would be annoyed by considerably more robocalls.  No one ever said democracy was easy.

The apportionment of electoral votes introduces another distortion.  The influence of small states, Vermont included, is overstated relative to their population, thus explaining the filibuster of the Bayh-Celler Amendment by senators from smaller states.  In regional terms this results in an over-representation of southern and plains states, and while Democrats do nicely in several smaller states, again including Vermont, this regional distortion tends to favor Republicans over Democrats.  This makes alleged voter suppression attempts by Republican-dominated legislatures in several key states, Ohio. Pennsylvania, Florida, an even more critical issue.  If only a small portion of a demographic group that tends to vote heavily Democratic, African-Americans, the young, certain Latino groups, is discouraged from casting a ballot, it could swing a large number of electoral votes and potentially an entire election, even if the impact on the total popular vote is small.  Arguably, the Electoral College encourages the suppression of minority votes.

One final problem we might touch upon, if only because it is one frequently discussed in the media whenever the subject of the Electoral College does come up—the “faithless elector” who does not vote for the candidate of their party.  The problem is real, one estimate claiming a total of 158 such renegade electoral votes over the years.  Nearly half of these occurred because of vice presidential candidates dying before the electoral votes were to be cast, a possibility cited by some in defense of keeping the Electoral College intact.  About 85 electors have changed their votes because of personal ideology or loyalty to another candidate. However, faithless electors are few and usually act alone.  To date, no presidential election has ever been thrown by faithless electors.  The closest exception was vice presidential candidate Richard Mentor Johnson, who failed to win a majority in the Electoral College in 1836 when 23 electors from Virginia refused to support his candidacy because he had previously lived with an African-American woman who had born him several children.  The election was thrown to the Senate, where Johnson was easily chosen.  Today, 24 states have laws punishing faithless electors, the rest relying on party loyalty and peer-pressure to ensure that electors deliver their votes according to popular preference.  It is safe to say that were a faithless elector ever to throw an election to the other party, that person should not plan on ever having a political career. The problem is thus overstated. 

It would be possible for electors to create a 269-269 tie.  That would throw the selection of the president into the House of Representatives, where Governor Romney would probably win the state by state vote, regardless of the balance in the popular vote.  There are more states with Republican-dominated House delegations, a reality that could survive even if the Democrats win a majority of House seats in the next Congress.  On the other hand, selection of a Vice President would devolve to the Senate, where Vice President Joe Biden would probably come out on top.  For the first time since the first Adams Administration, we would have a president and a vice president from rival parties!

That would probably also be the last we would hear from the planet Wmzypholg.

The Electoral College

With the 2012 presidential election just a bit two weeks away, the polls have been enough to cause party activists heartburn and to leave the rest of us confused.  First, President Obama holds a comfortable lead, then Governor Romney is ahead, then Obama again, then….  While polls swing back and forth, it is worth recalling that all polls have a built in margin of error, meaning they measure a result only within a few percentage points in either direction from the reported number.  There are also problems when pollsters try to identify the “likely voters” whose opinions most obviously predict eventual outcomes.  The best we can say at this point, taking all the polls together, is that the popular vote is likely to be very close, although the incumbent seems to hold a slight lead in the Electoral College.

Ah, yes, that Constitutional problem child, the Electoral College.  Most of us survive our day to day lives without giving it any thought.  Most of the time, it is a curious but innocuous presence in our politics, the electoral vote reflecting (usually by a higher margin) the popular vote, hence choosing the same presidential candidate to office who was supported by a majority of voters.  However, when an approaching election appears to be a close one, pundits, party strategists and a few political scientists begin to wonder—will this be the Big One, the Electoral College Armageddon some of us have feared might strike some day?  Recall how, in 2000, Democrat Al Gore won the popular vote, while Republican George Bush, depending on how Florida votes were counted, won the Electoral vote.  With help from the Supreme Court, Bush became President.   Historians might remember back to the election of 1824, when Andrew Jackson won pluralities of both the popular vote and votes in the Electoral College, but was defeated by John Quincy Adams in the House of Representatives.  What was with that?  Some of us already wonder, in a close race, might the popular vote and the electoral vote diverge again?  What if the Electoral College is unable to choose a president?  What is the Electoral College anyway, why do we have it and how does it work?  These are complex questions that can only be addressed briefly in a blog post.   In fact, this will have to be a two-part posting just to provide an overview of the topic.

What is the Electoral College and Why do We Have It?

When Americans go to the polls to choose a president, we are not really voting for the Republican or Democratic candidate, at least not directly.  Instead, we vote for electors to the Electoral College.  It is really they who will vote for Mr. Obama or Mr. Romney a little over a month later.  Each state is given a number of electors equal to its total congressional delegation, or as many as it sends to the House of Representatives, plus two more equal to its Senate representation.  Thus the constitutional minimum is three votes, currently awarded to Alaska, Delaware, Montana, Wyoming, both Dakotas and of course, Vermont.  Larger states have more votes: California has 55, Texas gets 38, New York and Florida each get 29, while Illinois and Pennsylvania have 20 each.  The District of Columbia is given three votes despite its lack of voting representation in either house of Congress.  States decide the mode of selection of electors and all but two, Maine and Nebraska, award them in a winner-takes-all fashion, so the candidate who wins the state by a razor thin margin is awarded all of that state’s electoral votes.  With 538 electoral votes at stake, it takes an absolute majority, at least 270 electoral votes, to win.  That is the Electoral College in a nutshell.

Why did the authors of our Constitution rely on indirect election of the Chief Executive?  The initial proposal considered at the Constitutional Convention in 1787, commonly referred to as the Virginia Plan, called for a bicameral or two house legislature elected by the people, that would then select the executive.  Objections were raised to this arrangement as it would place the executive under the domination of the legislature that put him (or her—the framers were clearly thinking only of men) in office.  James Wilson, of Pennsylvania, and James Mason, of Virginia, favored the direct popular election of the executive, but this idea that was quickly rejected.  In a dispersed and localized society that was 18th Century America, it was feared that the average voter (actual qualifications yet to be decided) was not sufficiently conversant with candidates from beyond their own states.  Alternatively, direct election raised for many the fear of a populist demagogue who would use his popularity to bully the legislature and run rough-shod over any opposition.

It is important to remember that the framers were not populist democrats in the sense that we understand today.  They did not seek a government in which policy would be driven by popular opinion.  In actuality, their preference was for a government of elites, people of experience, knowledge and good political judgment, who would be checked by public opinion.  With this in mind, we can see that the Electoral College was a brilliant 18th Century solution to an 18th Century problem.  If neither Congress nor popular voters would be trusted to select the chief executive, the Electoral College promised a selection of an independent executive who was not wholly removed from popular sentiment, but who would be chosen through a kind of peer review among elites, hopefully people of local reputations for good judgment, who would know better who was most qualified for the highest national office.  And they hoped the selection process would nullify the influence of political parties.

The Electoral College, as such, never meets.  Instead, electors assemble in their respective state capitals on the Monday after the second Wednesday in December.  Originally they were to cast two votes, as least one of which had to be for someone from a state other than their own.  The idea was to prevent politicking among the electors for votes and to ensure that votes were not cast only for local favorites.  The ballots were transmitted to Congress, where, in joint session, they would be counted.  The candidate winning an absolute majority was chosen as President, the candidate having the second highest tally becoming Vice President and a kind of heir in waiting.  If no candidate won an absolute majority, a contingent the Framers expected to occur most of the time, the House of Representatives would choose the President from among the top five (later three) candidates, but in a state by state vote.  This is the only time when votes in the House are cast by state and today it takes a minimum of 26 states to win.  The Vice President would then be chosen by the Senate, each Senator voting individually. 

It is not hard to see what would happen were national political parties to arise.  In fact, the Electoral College functioned according to its non-partisan plan only twice, to select George Washington for the presidency for two terms, with John Adams awarded the vice presidency.  In 1796, with parties only beginning to organize, the Electoral College gave the presidency to John Adams, the Federalist candidate, but put his Republican (actually the beginning of the Democratic Party—another blog post) rival Thomas Jefferson in the vice presidency.  Needless to say, this sort of thing might not make for a harmoniously functioning executive.  The two survived only because Jefferson was never given any policy responsibilities during his term.  Then in 1800, the real kerfuffle happened when the Republican (Democratic) Party offered Jefferson for President, and Aaron Burr for Vice President.  Someone among the electors was supposed to throw away their Burr vote, but signals were crossed or missed altogether and the two candidates tied, rendering the Electoral College unable to choose.  Although he had agreed to stand for Vice President, Burr was tempted by the top office.  Even after 35 ballots, the lame duck House failed to select a President (Federalists delighting in an opportunity to embarrass Jefferson by supporting Burr).  The deadlock was broken when Alexander Hamilton, an opponent of Jefferson who despised Burr on personal grounds, used his influence with Representatives in support of Jefferson.

The result was the twelfth amendment to the Constitution, a reluctant concession to the reality of political parties.  Ratified in time for the 1804 election, it prescribed separate electoral votes for President and Vice President and added a few housekeeping details to the process.  Since its adoption, only the 1824 election has fallen to the House of Representatives.  The twentieth amendment, adopted in 1933, moved the beginning and end of federal terms of office up from March to January: the 3rd for members of Congress, the 20th for the President and Vice President.  Additionally, in the event of a failure of the Electoral College to choose a president or a vice president, the amendment removed the choice from the outgoing House and Senate and placed it in the incoming House and Senate.

With our more populist political sentiment, we nearly abolished the Electoral College in 1971 and replaced it with a system of direct popular election; with a run-off if a third party candidate prevented any candidate from achieving a 40 percent plurality.  In 1968, Richard Nixon had defeated Hubert Humphrey in the Electoral College 301 to 191, despite a margin of less than a single percentage point in the popular vote.  A razor thin margin of victory in a sufficient number of states will do that.  Meanwhile, a third party candidate, George Wallace, took 46 electoral votes, even though he won only 13.5 percent of the popular vote.  The Bayh-Celler Amendment failed to survive a Senate filibuster by members from southern and small states who feared a loss of influence if the Electoral College were abolished.  Even after the controversies surrounding the 2000 election, no serious effort has been made to alter or abolish the Electoral College since.

So, the Electoral College remains an antiquated system of choosing national executives, one we have tinkered with on a few occasions, but one we also have lived with, fingers crossed, hoping for a smooth election with a clear winner and no anomalies along the way.   As I said at the top of this post, we usually mange to choose a president without a major crisis.  The Electoral College typically reflects the popular vote, albeit with an enhanced margin of victory.  The possibility for a major constitutional crisis remains, prompting a few political science types to experience the occasional sleepless night.  However, the main point of criticism of the Electoral College today is not the possibility of crisis, but the ways it distorts, at least in the eyes of critics, the presidential campaign.  That will be the topic of my next blog post, coming soon.