Thoughts from
San Diego on Law, Politics, and Culture

 
Does the Electoral College Make Sense? (Part III)
By Gail Heriot

I got quite a few thoughtful responses to my earlier postings (Tuesday and Saturday) on the Electoral College. Thanks to everyone who wrote me. Here are some of the arguments and some of my responses. I'm not going to be able to deal with everything in this posting, so look for Part IV later.

Some of my correspondents pointed out that the Electoral College was part of a fair bargain at the Constitutional Convention driven by delegates from small states, who were concerned about the potential dominance of Virginia and other large states in the national arena. Without such safeguards, those states might not have joined the Union. All that is true. But it is not an argument for the Electoral College's continuation if members of the current (or some future) generation undertake to abolish it pursuant to constitutionally approved procedures (not that I'm holding my breath). Article V, which permits amendments to the Constitution upon adoption of two-thirds of both houses of Congress and ratification of three-quarters of the states, is also part of the bargain struck between the delegates from small and large states. If they had considered the continuation of the Electoral College to be crucial, they could have exempted it from amendment. They did not. At this point, therefore, the debate over the Electoral College should be on its own merits. That's the system the framers put in motion.

Another correpondent took the position that the Electoral College is a protection against mob rule. In the modern world, that kind of argument doesn't get made much (perhaps because the "mob" doesn't like to hear it!), but it is certainly a sentiment that would have resonated with many members of the founding generation, who frequently voiced concerns over the excesses of democracy. Those men surely would have had sympathy for a system in which Electors are chosen on account of their wisdom and experience and in turn those Electors employ their own best judgment in choosing the President. But the modern Electoral College does not function that way. Rather than exercise independent judgment, the Electors cast their votes for whomever the ordinary voters of their state have directed them to. (The so-called "Faithless Elector" is considered a scoff-law.) Hence, if mob rule is a problem, it is still a problem under the Electoral College system.

Another suggested that the Electoral College insures that the winning candidate has widespread support, not just support in a particular geographic area. The problem I have with this argument is that I'm not sure it's really true (and if it is true, I am not sure it is an important enough consideration to deviate from our usual standard of election by a majority of popular votes).

On the first point, it seems to me that both a straight popular vote system and the Electoral College system can elect a President whose support is concentrated in a particular region. Here are some hypotheticals that show both problems:

(1) Suppose the country can be divided into four equal regions--North, East, South and West, each composed of 15 politically similar states. The Tory Party candidate has strong support(66 2/3%) in three regions, North East and South, but has no support whatever in the West. the Whig Party candidate can muster only 33 1/3% of the vote in the N0rth, East and South, but every man, woman and child in the West favors his candidacy. And by the way the populations (and the electoral votes) of our hypothetical regions are exactly equal except that the West has one more registered voter who makes it to the polls. The popular vote thus goes to the Whig Party candidate, while the Electoral vote goes overwhelmingly to the Tory Party candidate. I can certainly see why the Electoral College might be a good thing here. Widespread support may have some independent value in addition to popular vote. I am less sure that I would be enthused about the result yielded by the Electoral College if the Whig party candidate got 48% of the vote in the North, East, and South.

(2) And here's another hypothetical that I think is a little closer the actual political landscape of our time. Suppose again the country can be divided into four regions--North, East, South and West--but this time the West has two more Electoral votes than the other regions, simply because it has more (and hence smaller) states in it. In addition, this time there are three candidates--a not uncommon occurrence these days. In the North and the South, the Tory Party candidate is favored over the Whig Party candidate and Ross Perot (who is commonly thought to take more votes from the Tory candidate than the Whig candidate) by a margin of 61% to 24% to 15%. In the East and West, the Whig Party narrowly defeats him with 40% of the vote going to the Tory, 41% to the the Whig Party and 9% to Ross Perot. Compared to Hypothetical #1, these numbers strike me a plausible--different candidates have different appeal in different regions, but not wildly different Yet they result in an Electoral College victory for the Whig Party candidate despite the fact (1) he seriously lost the popular vote and (2) his support is largely confined to two regions of the country.

It's true that the Electoral College can, given the right circumstances, prevent a candidate whose support is largely confined to a particular region from winning the election even though he has won a majority of popular votes (though whether this is bad or good may depend on the degree to which the "regional favorite" carried the popular vote). But it can also have a far more pernicious effect--causing a candidate to win who has no substantial support in half the country and who came up massively short on the popular vote too. At least under the popular vote system you won't have that kind of massive legitimacy crisis.

I'll mention some of the arguments that I find a little more persuasive next time.

posted by Gail at 9/18/2004 09:18:00 AM