New litigants challenging the rules of the administrative state will be arguing in the future to a Supreme Court that is ready to listen.
It’s that time again when all eyes are drawn to the spectacle that is the American presidential campaign. We watch as Romney and Ryan bus from one end of Ohio to the other and observe Obama seeming to run the Administration from Air Force I on the way to fundraisers in California or small town rallies in Iowa and Colorado. As we watch the quadrennial drama unfold, the inevitable question arises: Is this any way to run an election?
There are many problems inherent in the way America elects its chief executives. Many of us have our pet ideas of ways we think it could be changed for the better, but no reform pops up with more regularity than the abolition of the Electoral College. Before the heat of summer begins to slide away, the Op Eds and blogs appear and polls are reported showing a majority of the American people seeming to back the system’s demise.
Hundreds of proposed constitutional amendments which would have abolished or fundamentally altered the workings of the system have failed in Congress over the last century. Now the opponents have crafted a way around the constitutional impediments to reform and are as close to altering our electoral system as they have been since the 1970s.
The National Popular Vote (NPV) movement is the brainchild of former consulting professor at Stanford University John R. Koza. Before he began dabbling in electoral reform, Koza was best known for having co-invented the rub-off instant lottery system used in many states. The National Popular Vote initiative would do an end run around the formal amendment process of the Constitution in order to change the very foundations of the electoral system. To be more precise, the NPV movement asks states to pledge their Electoral College votes to the winner of the national popular vote, regardless of how their own citizens vote. Once enough state legislatures sign on to represent 270 electoral votes, the president-elect would be the candidate who won a simple national majority. Our system would become a national plebiscite and our politics would be radically transformed. And it would all happen without a serious national debate.
The NPV backers claim the support of more than 2100 state legislators and the initiative has passed in nine states worth 132 Electoral College votes, putting them nearly half way to the goal of radically transforming our politics. And it is all happening with little debate at the state level and without any serious national dialogue.
And yet, despite more than 200 years of fairly sustained opposition, including this new NPV plan, the Electoral College endures. Why? My contention is that the Electoral College still survives, and should continue to do so because it works in producing decent presidents according to the rule of law while also supporting important claims of liberty. And, there is no other plan that is not so fundamentally flawed as to render its consequences unacceptable.
How the Electoral College Serves Liberty
There are many reasons why the Electoral College has been successful in producing relatively good presidents within a fairly balanced and stable political system. I have written elsewhere in more depth about how the system serves federalism, the rule of law, and has saved us from long national nightmares of recounts and ballot challenges. Just imagine, for example, what the days after the 2000 election would have been like without the Electoral College centralizing the fight into one state (Florida). If Al Gore and George W. Bush were separated again by only a few hundred thousand votes and the winner of the presidency would be the one who got just one more vote than the other, we would have been conducting recounts and hearing legal challenges in every precinct in every county in every state of the nation. If lawyers could disqualify a few voters here and poll workers could “find” just a ballot box or two there, an election could be overturned.
Today, however, I want to focus on another aspect of the Electoral College and how it serves liberty interests in America. To wit, I want to explore how the Electoral College serves to balance the extremes in our politics, produces relative stability in our system, and protects the liberty of minority interests that otherwise would be crushed under the weight of “king numbers.”
First we must concede what few opponents of our current system will: every system of election has its inherent biases. The Electoral College is no different on this score. Because the Electoral College math is only partly based on population and partly based on the federalism principle of each state being treated as an equal entity, it gives a slight bonus to small states. This is one of the major points of anxiety for those who oppose the current system. Despite the cries of its opponents, however, this is no different than the foundational basis of the U.S. Senate where citizens from smaller states have proportionally more representation than those from larger states.
Unlike the mantra from its opponents, our system of government is not premised upon enshrining political equality to the exclusion of all other concerns. And yet, within each of the 50 states and the District of Columbia our presidential elections are fair, free, democratic and each voter is counted equally with all others. Just like with every other election in the American political system, the winner of the popular vote in a state wins and the loser loses.
The best way to illustrate how the Electoral College serves liberty is to consider the biases that are inherent in the alternative to the current system. Most opponents want to replace our system with a single national plebiscite. Whoever gets one more vote than the other candidate(s) wins the presidency. Its simple, clear, and easily understood. But it would transform the American political system in ways few have seriously considered.
Before getting to the core of my argument, it will help to consider what the abolition of the Electoral College would mean for the two-party system. Political observers from the late Senator Daniel Patrick Moynihan to Michael Barone, longtime editor of The Almanack of American Politics, have observed that it is the Electoral College with its “winner-take-all” rules in all but two states that has sustained the American two-party system. Without it, our general election candidates would likely proliferate as the disincentive against candidates that couldn’t win full states is lifted.
Though there are good arguments for the need for a third party, a splintered system would allow a president to win with fewer and fewer votes. Keep in mind that Bill Clinton won in 1992 with 57 percent of the voters pulling levers for another candidate in that year’s three-way race. Would we find it acceptable if a president won just 35 percent in a four way race? How uncivil would our politics become when candidates could win the presidency by appealing only to the one third of voters who agree with them the most? What policies would our candidates propose if they did not have to appeal to swing voters or members of the other party?
Where it is true that the current system offers a very slight electoral bonus to the citizens of states with smaller populations, the alternative system would drown those same citizens and their interests under an avalanche of votes and money from our major urban areas. If all a candidate had to do was win one more vote than his opponent, what candidate would ever again visit the Iowa Fair? Who would talk to the coal miners of West Virginia? Who would seek out the rural farmers of Colorado or the small town restaurant owners in Las Cruces, New Mexico?
If all a candidate had to do was win one more vote than her opponent, candidates could not afford to travel to rural areas and listen to rural concerns. All voters being considered equal, there are just too few votes in small town North Carolina to justify the time and policy considerations. A much more efficient use of resources would be to target major urban centers where huge campaign cash could be raised from the elite just blocks away from massive rallies at the convention center which is just a few more blocks away from the television and radio stations that command the airwaves across the nation. A week on the road to a dozen small towns couldn’t match the punch of a single evening in New York City.
Would such a change matter? With the centralization of American government in the administrative state under the modern American presidency, our chief executives are effectively making law, limiting the power of the representatives in Congress to make the rules we live by. If presidents lose the incentive to listen to small town voices and rural voters, who will protect their liberty interests during the rule-making process of the modern state?
A simple glance at the county-by-county electoral map from the last few presidential elections tells the tale of cultural, political, and economic divisions in the country. Most telling is the map from 2000 that shows how Al Gore was able to win the national popular vote by racking up large majorities in urban areas and border and coastal counties while he could fly from Pittsburgh to Los Angeles without flying over a county he won through the heartland. Rural interests are fundamentally different than those of the major cities and without the Electoral College, America between LA and New York would become mere “flyover country” in our politics as it often seems to be treated by our Hollywood and media personalities.
The abolition of the Electoral College would result in a severe tilting of the American political system to the left. Being able to win the presidency simply by focusing on maximizing turnout in major population centers, the Democratic party would have every incentive to create its platform, craft its message, and adapt its policies to appeal to maximizing base voter turnout in cities. In such a system, what would be the future of the welfare state? How would tax rates, energy policy, and the activities of ATF change? Imagine the presidency of a community organizer from Chicago in an electoral system where he didn’t have to visit or care about the views of voters in Colorado, Iowa, New Mexico, the panhandle of Florida, or Washington County, Pennsylvania.
Without the need for candidates to listen to rural voters, appalachian coal miners, small town ministers, cattle farmers, Pennsylvania hunters, or New Mexican restauranteurs, who will represent their liberty interests in the administrative state? Knowing the cultural and political divisions within the country, what candidate would risk associating herself with country people and small-town concerns if doing such might turn off blocks of voters in the urban core?
The Electoral College serves the American Constitutional system by balancing the political incentives of the class of politicos seeking the presidency and the priorities of the ever more centralized administrative state. Candidates today visit large cities and small towns. They know they need to appeal both to urban voters in swing states and rural voters in the battlegrounds. This system creates a relatively level playing field where various political, cultural, and economic interests in the nation can compete and where different liberty interests can find a level of respect and representation among the parties and candidates and then within the administrations of the winners.
Our electoral system is not perfect but there is no more perfect method that has been put forward and the system has served America for more than two centuries. It’s opponents have a simple vision with simple slogans, but liberty, as our founders understood, is not served well by simplicity. Before its too late, we should think long and hard about the political, policy, economic, and social consequences of abolishing the Electoral College. The liberty of millions of Americans may well be held in the balance.