Inviting judges to consider the consequences of their decisions or recent practice as guides to interpretation threatens to bury originalism.
The Electoral College has hardly been a popular, much less well-understood, element of the American political election system. Under sustained attack by critics since at least 1796, it has withstood numerous attempts to abolish it and replace it with a national popular vote for president and vice president. And among its defenders, the stoutest justifications tend toward the view that it is the least evil among competing alternatives, or a Burkean skepticism that any other form of electing the executive would yield an ideal result. (And perhaps I find myself relying upon these half-hearted defenses more often than not.)
But count Tara Ross among its most enthusiastic and knowledgeable defenders, one who views the Electoral College not as a necessary evil, but as a valuable and integral component of our federal republic. Ross published the first edition of Enlightened Democracy: The Case for the Electoral College in 2004, a time when critiques of the Electoral College sounded more like empty threats, academic musings, or the waning echoes of Democrats still stinging from Al Gore’s loss in 2000.
Things changed in 2007. Those academic musings took the form of an actual legislative proposal. It is unlike previous failed efforts, like the proposed constitutional amendment that nearly garnered the requisite two-thirds majority in Congress in 1970. Instead, it proposes a compact among the States.
The National Popular Vote, as it styles itself, takes advantage of the constitutional grant of authority to the State legislature to appoint presidential electors. Most States pick electors the same way: the candidate who wins a plurality of the popular vote in the State wins all of that State’s electors.
What if, NPV asked, each State awarded its electors to the winner of not just its own popular vote, but of the national popular vote? Of course, there’s little incentive for a State to unilaterally enact such a law. Why, after all, would Massachusetts commit to award all of its electors to President Bush just because the national popular vote total in 2004 went his way? Or why would Arizona commit its electors to Barack Obama in 2008?
Curing a collective action dilemma, the NPV doesn’t require unilateral disarmament. Instead, it only goes into effect once 270 electoral votes’ worth of States enact it. That’s a majority of the Electoral College. And that means that the winner of the national popular vote would always receive a majority of the presidential electors.
And the NPV has garnered far-flung support, from tiny Vermont to massive California. Eight States and the District of Columbia have enacted it, and it has 132 electoral votes’ worth of support—almost halfway toward NPV taking effect. Admittedly, the effort appears to have lost some steam in the last 18 months, but the potential for turning the Electoral College into a vestigial mechanism for a national popular election of the president remains real.
It is into this world that Ms. Ross has published the second edition of Enlightened Democracy. Her introduction sets the stage for the tone of the book: “It is a primer for any American who wants to better understand the history of and justifications for our presidential system.” And the book fulfills the role admirably—complete with a warm foreword from George Will. It is thorough and well-sourced for those looking to dive deep into the history or academic literature, but not so dense as to turn away the casual reader.
Ms. Ross opens with a basic explanation of Madisonian factionalism and the concern that an unchecked majority may tyrannize the minority. To cool the passion of a majority, the mechanisms of government would require deliberation and consensus. Support for a presidential candidate must be broad-based and national, not derived from the untempered will of a provincial majority cobbled together from “dangerous” factions of special interests. The Electoral College, Ms. Ross argues, exists to temper majority faction, because States are “safe” factions, “heterogeneous entities composed of individuals with a wide variety of interests.” Garnering majorities within States assures broad support for a candidate.
The Electoral College wasn’t perfect, Ms. Ross concedes. Having the runner-up serve as vice president didn’t work well in 1796, when John Adams won the presidency and saw his rival Thomas Jefferson win the vice presidency. And the electoral deadlock in 1800 led to passage of the 12th Amendment, which allowed for a single ticket for president and vice president. Importantly, Ms. Ross doesn’t defend the Electoral College in a vacuum. The system has changed, both in law and in practice, in the course of American history. She emphasizes, “It operates differently than expected, but it still serves the political goals it was intended to serve.”
Many chapters in Enlightened Democracy identify particular benefits of the Electoral College gleaned from historical experience. Ms. Ross tackles the claim that candidates only visit closely-contested “swing” States (noting that no State remains ideologically consistent over history) and defends her conclusion that the two-party system has been moderated by the requirement that parties garner broad support (looking to the Whigs and the Bull Moose Party). It’s a book rife with historical detail and direct applications to her thesis.
Part Four of the book takes on the NPV, marking the most significant addition to the book in this second edition. With proposals to effectively abolish the Electoral College advancing steadily, Ms. Ross describes the NPV in detail and, then, shreds it. Logistical problems abound, from ballot eligibility for candidates (after all, Abraham Lincoln wasn’t on the ballot in the South), to voter qualifications (felons vote in some States, but not in others). Legal complications persist, from the use of an interstate compact without congressional consent, to potential equal protection issues. Ms. Ross nicely summarizes the problems that are mostly unidentified, and, when raised, mostly ignored, by proponents of the NPV.
Perhaps the most intriguing argument of the book arises in its final chapters in a part called “The Electoral College in Action.” There, Ms. Ross walks through historical episodes chronicling the successes of the Electoral College. Franklin Delano Roosevelt and Ronald Reagan each experienced Electoral College landslides—landslides that existed only because of the Electoral College. When Mr. Roosevelt won in 1936 by a margin of 523-8, and Mr. Reagan in 1984 by a margin of 525-13, it signified broad, national support across all States; in a popular vote model, it would simply appear to be a relatively wide popular vote margin.
And in the often-cited “wrong winner” cases, the instances in which the winner of a plurality of the popular vote failed to win a majority of the Electoral College, Ms. Ross turns the tables on critics. These, she argues, aren’t “wrong winner” cases. The right winner won. Benjamin Harrison in 1888 may not have earned the most votes, but the provincial, almost exclusive Southern support for Grover Cleveland suggested that the Electoral College worked. It stymied factionalism. Mr. Harrison earned broader national support, rather than deep support among sympathizers of the former Confederacy.
So, too, did 2000 produce the right winner. Ms. Ross notes that George W. Bush earned the support of pluralities in 30 states; and he earned the support of counties containing 143 million, compared to Mr. Gore’s 127 million. She cites Mr. Bush’s broad, cross-regional support, rather than the narrower path of Mr. Gore, as, effectively, a success of the Electoral College, which buffered against regional factionalism.
Such defense does not come intuitively to Americans led to believe a single political philosophy of equally-weighted votes should control every election, from President of the United States to local dog catcher. For that, we may well blame the Supreme Court. Its intervention in the 1960s suggesting that “one person, one vote”—or, more accurately, perhaps, one representative, one constituent—was the model for all levels of government has colored our views in the last half-century. Its begrudging acceptance of the Electoral College and the United States Senate as compromises has turned them into exiles. Ms. Ross admirably provides a thorough resuscitation to the former.
It’s not difficult to find criticisms rising in the weeks ahead of this election, mostly hyperbolic attacks from those who would benefit from reading Ms. Ross’s primer. Lacking a penchant for restraint, a professor at UCLA recently called the Electoral College “unjust,” “dangerous,” and a “cancerous tumor.” A humorist at the New York Times published erroneous claims in his recent critique, including the claim that the Electoral College favors “smaller states,” “most” of which vote for the Republican candidate.
That’s not true. In 2008, among States with three electoral votes, they split five-to-three in favor of the Republican Candidate, with Delaware, the District of Columbia, and Vermont preferring the Democratic candidate; among the five States with four electoral votes, four of them—Hawai’i, Maine, New Hampshire, Rhode Island—backed the Democratic candidate. Ms. Ross notes that protecting small States is not a partisan issue (theoretically or practically), but a fundamental balance struck between the larger and the smaller States at the Founding.
Or consider a recent story from the Associated Press critiquing the math behind the Electoral College. It, like many critiques of the Electoral College, begins by noting that the “weight” of a vote cast in Wyoming is “worth” three times as much as a vote cast in Ohio—if one adds the total citizen voting age population of each State and divides it by the total number of electors allocated to each State, it turns out that that the Wyoming voter has more “voting power.” Mathematically, an ideal voter’s “power” is 0.00000253 votes per elector (at which point the argument borders on the absurd). Of course, it’s a criticism even more salient when it comes to the election of Senators, but that’s rarely mentioned in election years.
The critique, then, shifts to note that despite the fact that Wyoming voters have too much voting power, candidates focus exclusively on so-called “battleground” States (excluding, one assumes, Wyoming), a State that has too little influence in the election process. Happy thought for Wyoming—a State with disproportionately high power per voter and, yet, ignored.
Enlightened Democracy might prove instructive. Ms. Ross explains that although one voter may theoretically shift all 55 of California’s electoral votes, one voter may shift just three of Wyoming’s electoral votes—giving, in another sense, the California voter more potential power. And, that mathematical point to the side, “the odds of a single voter providing the ‘tipping point’ in an election are still exceedingly small,” she rightly argues. Further, she notes, a winning president would “essentially represent isolated regions, not the country as a whole,” as heavily-populated localities, not States themselves, would dictate the winner.
As an oft-faint-hearted defender of the Electoral College, I have found that Ms. Ross’s primer stimulated my own thoughts on the matter, all for the better. And the more citizens, academics, and journalists who have the opportunity to consider her thoughtful and detailed argument, the more likely we are to appreciate what we have, rather than trip over each other every four years in an attempt to undo our electoral system that we’ve had for 57 presidential elections, and counting.
Additional Law and Liberty Resources:
- Podcast with Dr. Gary Gregg: Defending the Electoral College.