Is the Electoral College Obviously Crazy?
maybe, but it's obviously not good.
I generally agree with the conventional wisdom that the US constitution is unreasonably good. It has endured for a quarter millennium now. And under the jurisdiction of this glorious liberty document America has developed into arguably the greatest source of liberty and prosperity worldwide in the history of the known Universe. But the Electoral College is quite bad. Bantham’s Bulldog argued as much in a recent post. His post mostly relies heavily on the facial absurdity of having votes matter more in some states than others. I relate, but given the central role the College has in such a successful system of law, it deserves a full consideration of all counterarguments. Keeping in mind that without good reason otherwise, we should default to the “one person one vote” principle.
The Electoral College doesn’t protect against “Tyranny of the Majority”
Whenever one criticizes the EC, this is the first argument you will hear. Concerns that a demagogue could emerge, appeal to a slim majority of voters, ignore all minorities, and finally trample over them once in power. But if this is the point of the Electoral College, it has failed spectacularly. If there has ever been a group in need of protection against a tyranny of the majority in America, it is black people. And God knows that from 1776 all the way to 1954 they did not enjoy that protection. Gay people also do not see any benefit from the College. What minority are we actually protecting here? Rural people of course. The second most oppressed minority, only behind Gamers. We may not have prevented Jim Crow, but at least we delivered subsidies to corn farmers and (and animal torture of course).
Apart from social minorities, ideological minorities also find themselves shafted. Firstly, if you want anything other than a liberal or a conservative “MAGA” candidate the US constitution laughs in your face, takes a deep breath, and laughs at you some more. Besides that minor point there is also the issue of local minorities. Over 5 million Texans voted Democrat in 2020, and 6 million Californians voted Republican. They might as well note have. Only the majority is gets any political power. There might be a phrase to describe that phenomenon, but it escapes me now.
I don’t want to rely to much on Trump being bad and getting only getting elected because of the Electoral College, but isn’t he exactly the sort of demagogue you’re trying to protect against?
In defense of allowing New Yorkers to vote
Another argument for the system as is is a version of this meme
This is obviously false. In a popular election every vote has an equal say in an election. The darker counties could hypothetically outvote the lighter ones, but that requires every single county to go 100% to one party. Good luck with that. And of course the median voter theorem predicts the parties will change their platform in a way that ensures. Besides, who is to say that dark-countiers deserve less of a vote than light-countiers? Just because they happen to live nearer to one another? That’s insane!
Another way the above argument is often structured is “New York and Los Angeles will determine the election for everyone”. But first of all, you need way more than those two cities to get anywhere close to a majority. And secondly, controversially, maybe New Yorkers should be heard to. These oft-derided coastal cities are the backbone of American commerce. And they’re so far from these monolith that EC defenders seem(?) to imagine them as. New York is in the running for the most diverse, and most successful city worldwide.
The Electoral College as insurance against stupid voters
The arguments above are often forwarded as the “reason” the current system exist. But historically this is just plain false. Did anyone even read Federalist No. 68? The real reason behind the system is for the Electors. Hamilton assumed voters are stupid, so we need a small number of political elites that can overrule the popular choice and vote for a more competent candidate instead.
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
In 2016 Democrats tried to exploit this very process by creating an ad that tried to convince electors to bail on Trump. The ad was kinda cringe, but should it be? Democrats were taking the constitutionally endorsed route. On the other hand, if it had worked there would be chaos in the street. No Trump voter would ever trust an election again (can’t imagine what that would be like). We have to realize that this feature of the constitution is so controversial, that nobody would accept it if it were implemented. Besides, halve the states void the votes of faithless electors. Supreme Court opinions like Chiafalo v. Washington have uphold faithless elector laws.1
The truth is that the Electoral College doesn’t need to be abolished. It already has been. Americans now are only left with the method of election that surrounds it.
All states in green will void the votes of faithless electors.
Fraud
Another possible reason for the College is a a prevention of fraud. If you wanted flip the result fraudulently today you would have to do it in the swing states. In a popular vote scenario you could do it anywhere. Including in deeply partisan states where you might not get much feedback. But this concern is completely blown out of the water by the increased amount of votes you’d need to fake. If Trump wanted to steal the 2020 election,2 he’d have to fake a relatively small number of votes:
Given the composition of the House of Representatives, he’d have won3. To flip the popular vote on the other hand, the number of votes needed is 7,059,526. I wish him luck.
There is a version of the fraud argument that is stronger. Another feature of the Electoral College is that states organize elections. This means that if an incumbent tried to steal the election they would have to try to persuade state officials and cannot just do it themselves. This feature is genuinely worth preserving.
How bad is dictatorship by Wyomingites
Popular polemics against the EC tend to emphasize the under- and over-representation of certain states. The number of electors each state has equals the sum of House and Senate seats it has. And while House apportionment is proportional, Senate apportionment is not. If all 538 electors were apportioned proportionally (like House seats are), states (and districts) like Wyoming would only have 1, instead of the 3 it has now. I would not design it this way, but I really do not think this is the worst. There are more than four times more House delegates than Senators. The majority of these votes go to the same states that they would go to anyway if they were apportioned proportionally. Only 42 electors change state due to the Senator rule. During the 2020 race there were only 37 “misappropriated” electors. And of those electors, 17 went to Democrat. Compared to the 23 they would have gotten in a proportional system. Is it really worth a hullabaloo over those 6 of 538 electors that they lost? It’s a bit of a problem, and you wouldn’t design this system from the ground up, but it is not sufficient reason to dismiss it altogether. At least without traditional reason.
The Insanity of Swing States
The main problem with the Electoral College as I see it is as follows:It buckets all vote by state. This gives rise to the phenomenon of swing states. That is the reason 150 voters in Pennsylvania can become more powerful than 1 million Californians. Which states are going to be important is also a completely random draw.
I will stand by that this is obviously crazy, and sufficient reason to do away with the Electoral College. At least so in a modern context. But in the context of 18th century Americas it makes total sense. The logistics that would be involved in organizing a national popular vote would be crazy. You’d have to haul ballots across a continent where the fastest way to exchange information is by horseback. Communication is much smoother now, so this rationale makes less sense.
Early America also did not have the opinion polling that we do today. You never knew what the swing states were going to be, softening the problem. Today these factors have changed significantly. The Presidential election has become the Pennsylvania election.and most Americans know that their vote does not matter anyway. This completely undermines the President’s legitimacy as a head of state for the whole country.
A Compromise Solution
Replacing the current system probably require an constitutional amendment.4 And to get people on board, the amendment cheerleaders should probably not stray to far from the system as it exists. And as I noted earlier, keeping states involved would enhance election security. So here is my modest proposal:
Each State still awards the same number of electors as they do now. But instead of awarding them all to the state winner, they must distribute them in proportion to the state’s popular vote. If the vote proportion isn’t cleanly divisible, you assign fractional electors, rounded to the third decimal point. Electors already don’t matter individual people, you might as well turn them into abstractions. There really is no good objection against that system whatsoever.
[Addendum: The winner would be the person that got a plurality of electoral votes]
I don’t know if they have upheld the voiding itself. Regardless, it’s not fathomable to me that they would rule this way given the obvious and explicit purpose of the EC.
By voter fraud, instead of the fake electors plot he actually attempted
In case of an EC tie the House votes for the president, but by State delegation instead of member. Republicans held the majority in a majority of states
Depending on the constitutionality of the National Popular Vote Interstate Compact.
Regarding the constitutionality of the National Popular Vote Interstate Compact (NaPoVoInterCo), it's currently under debate. The most important question is whether the NaPoVoInterCo, would need congressional approval as an interstate compact. This requirement depends on whether the NaPoVoInterCo affects the federal-vs-state power balance or the power dynamics among states (there is concern that the compact could impact non-participating states’ influence in presidential elections).
Proponents of the NaPoVoInterCo argue that states have plenary power under the Elections Clause to appoint electors based on the national popular vote. However, critics contend that this approach may infringe on smaller states' influence in presidential selection. The Supreme Court's ruling in Chiafalo v. Washington (2020) affirmed that states can bind electors to follow the state’s popular vote. This could be interpreted as support for binding electors to the national popular vote, but since there's little precedent the question remains unresolved at the moment. The Congressional Research Service expects that the NaPoVoInterCo will face significant litigation, possibly reaching the Supreme Court. Let's hope Harris wins the election and gets to replace Alito and Thomas, because I don't think the NaPoVoInterCo would survive this blatantly partisan supreme court.
Maine and Nebraska instituted split presidential voting. Nebraska did it when they were firmly a red state, with 16 years passing before one of their electors voted democrat. Nebraska did it in 1972, when they had just swung from democrat to Republican.
I see the argument against states like California or New York not instituting split electoral voting, as it would effectively hand the White House to Republicans considering their size (unless Texas did so at the same time), but I don't see a strong argument why small states like Vermont, or swing states like Pennsylvania don't do so. They either have an absolute majority, like Nebraska, or are approximately equally likely to go Democrat or Republic, like Maine was at the time.
If this is an important issue for Democrats, then it seems that's the workable solution without having to institute something legally dubious and low-legitimacy like the National Popular Vote Interstate Compact, or passing a constitutional amendment requiring 2/3 ratification by congress (which is practically impossible considering more than 1/3 of states benefit from the electoral college in absolute terms, and a few that don't like Pennsylvania benefit from being swing states).
Otherwise we can hope for a revolution or a temporary dictatorship that just ignores the constitution, neither of which seem particularly useful for increasing democracy. Throwing your baby out the window will probably stop it from crying, but sort of defeats the purpose of the exercise.
Maybe there's another solution I'm not thinking of, but I haven't seen it said yet.