Republicanism, not democracy, might be a structural principle we can use to guide our interpretation of the Constitution.
Last month, the New York Times joined the chorus for the National Popular Vote (NPV)—the idea that we should scrap the Electoral College and elect our presidents with a single nationwide popular vote. In a long article in the Review section of the Times’ Sunday edition, Jesse Wegman, a member of the Times’ editorial board, observed that the Electoral College system can result in a candidate winning the presidency with fewer popular votes than his or her opposition. This happened in 2000 and again in 2016, when the Republican candidates won a majority of the electoral votes but fewer popular votes than their Democratic opponents.
Since 2016, the NPV has gained adherents in states with Democratic governors and legislative majorities. It’s a relatively simple approach: a state passes a law that says all its electoral votes will go to the winner of the national popular vote, irrespective of who won the popular vote in the state itself. The system goes into effect when the total electoral votes of the participating states reaches 270 (the number needed to secure an Electoral College majority). States that have already authorized this system have 196 electoral votes, so the NPV will go into effect if states with only 74 more electoral votes elect Democratic governors and legislatures in the 2020 election.
While the highly unusual results in 2000 and 2016 explain why the Democratic Party is pushing this reform, the NPV reflects a somewhat shocking failure to understand the fairly obvious consequences that would ensue—catastrophic for both the Republican and Democratic parties—if this system should actually go into effect.
The first and most important error in the NPV idea is the assumption that when we discard the Electoral College system there will still only be two parties running candidates. We have a two-party system in the United State in large part because of the Electoral College, which requires a candidate for the presidency to win a majority of the electoral votes of the states. Third parties have grown up from time to time, but all ultimately disappeared because their candidates could not win an Electoral College majority. Thus the Electoral College forces our parties to become enormous coalitions of interests, varying slightly over time, capable of appealing to a broad swath of society.
But if a person or party could win the presidency with a simple plurality of the popular vote, we would see the creation of many special interest parties—pro-choice and pro-life, pro- and anti-gun, pro- and anti-immigration, and many more—all of which would be running candidates who would only need to cobble together a few more votes than the next one. Name the issue, and there will be advocates on both sides running for president.
In such a multi-candidate field, it would be possible to win the presidency with only a very small plurality, perhaps as little as 20 percent. Given the fact that he has established a significant financial base for his candidacy, there is little question that Senator Bernie Sanders or a socialist successor would be able to run for president—and very possibly win—in an election with a large number of candidates splitting the popular vote. The chance to win the presidency with only a sliver of the national vote would also encourage self-funded candidates like Michael Bloomberg to run for president, inevitably increasing the importance of large personal funds in our politics.
One of the arguments frequently marshalled by supporters of the NPV is that the Electoral College encourages campaigns to focus only on the states where the vote will be close. Other states, like California or Texas, are ignored because their electoral vote is a foregone conclusion. However, a different and more troubling problem would be likely without the Electoral College. In that case, candidates would focus entirely on the largest states and cities, where large numbers of votes could be harvested at limited cost. This would seriously degrade the way a presidential contest under the current electoral vote system encourages wide appeals to the diverse US population.
Another key element of the Electoral College is the fact that the American people have accepted it as a valid way to elect a president. The importance of this acceptance should not be underestimated. In the election of 1992, for example, Bill Clinton received a majority of electoral votes and was always considered the duly elected president, despite the fact that he received only a plurality (43 percent) of the popular votes. A third-party candidate, Ross Perot, received almost 19 percent. Yet, there was never any doubt—because he won an Electoral College majority—that Clinton had the necessary legitimacy to speak for the American people.
It is highly unlikely that a president elected with only 20 percent of the popular vote, and no Electoral College majority, would have a mandate to enact the policies that a majority of the country supports or to represent the American people in the councils of the world.
A national popular vote would also substantially increase the incentives for electoral fraud. Under the Electoral College system, if fraud occurs in one or two states it is unlikely to overturn the election of a president who has otherwise won an unchallenged majority in the Electoral College. But in a close national popular vote election, where the victorious candidate has, say, 20 percent of the vote and the runner-up has 19 percent, there would be powerful incentives to litigate allegations of fraud in virtually every state, leaving the country without a duly elected president until that litigation is ultimately settled at the Supreme Court.
The Framers of our Constitution developed the Electoral College because of the difficulty of choosing a president at a time when communications moved at the speed of a horse. No one would say that the Framers anticipated the problems of electing a president in a country of almost 350 million people, but it’s a stroke of good fortune that a system developed for other reasons turns out to be one of the principal causes of the long-term stability of our presidential election system; we should not lightly exchange it for a system that, in the end, is virtually certain to produce electoral chaos.