2020-10-24

Is This Any Way to Elect a President? The Electoral College and Minority Rule

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by Tim Widowfield

It is happening again. A curtain of dread hangs over the United States. Will we have yet another election in which millions of votes by American citizens go for naught simply because they live in the wrong states? Or will Joe Biden manage to win by a big enough margin to overcome structural deficits in swing states like Florida and Ohio?

And for heaven’s sake, how did we end up with such a bizarre system in the first place? On the right side of the political spectrum, an unending stream of purple punditry with its requisite wailing and garment-rending would lead one to believe that both the Senate and the Electoral College arose solely from the Founders’ belief in republicanism. The brain trust assures us that we have “a republic, not a democracy,” and (gasp!) if we degenerate into a democracy, all hell will break loose.

Roll the Bones

To do away with either or both of these institutions, they intone, is a bridge too far. A 2019 column by Sumantra Maitra at The Federalist is an excellent case in point.

After crossing the river, Caesar famously said Alea Eacta Est [sic], or the die is cast. Thus crossing the Rubicon is now considered a revolutionary act that aims to destroy the status quo, structure, and balance, from which there’s no return. The only way forward is through chaos.

The current Democratic presidential frontrunners, with their war cries of Electoral College abolition and reduction of the voting age, signify another crossing the Rubicon moment. That’s because without the Senate, and without the Electoral College, there would be no states in the United States of America. Essentially, there would be no republic anymore. And if history is a good teacher, every time there was direct democracy, it has led to a Caesar—or worse.

I refer to this essay as a nearly perfect example, not only because it typifies modern bombastic, pseudointellectual conservatism, with its requisite citations of irrelevant historical precedents (while in this case, hilariously misspelling alea jacta est), but also because it consistently fails to define its own terms. To evaluate whether the removal of the Electoral College would destroy the republic and somehow create, as Maitra warns, a “direct democracy,” we would need to understand what the founders meant by a “republic.”

In fact, while many conservatives in the U.S. will gladly tell you at every opportunity that we have a republic and not a democracy, they rarely will tell you what that means. They will, of course, imply that a republic is better and will sternly warn you that democracy is nothing but “mob rule.” But what are the characteristics of a republic? What are its fundamental principles?

Fortunately for us, in Federalist 10, James Madison explained what the framers meant. He wrote that a republic is “a government in which the scheme of representation takes place.” He spelled out crucial differences between a democracy and a republic, namely:

[F]irst, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

Madison’s definition of a republic is functionally identical to a modern “representative democracy.” He rightly points out that Athenian-style direct democracies — in which even mundane, day-to-day policy decisions remain in the hands of the electorate — have necessary size limitations. These limitations were especially severe in his day, given the primitive state of travel and the lack of instantaneous long-range communication. That much is obvious.

Test for Echo

However, even with the recent advances made in telecommunication, few people seriously contemplate a national government in which citizens directly vote on legislation by tapping a button on their mobile devices. Were the founders correct about such governments? That they are prone to violent swings in public opinion? That they trample on the rights of the minority? That they necessarily devolve into dictatorships?

Perhaps. But in any case, the biggest problem with direct democracy in a modern, sprawling nation-state (especially one that seeks to maintain a worldwide empire) is the matter of competence. Modern governments require competent professionals. We vote for representatives who, we hope, understand statecraft and diplomacy, who have wisdom, compassion, temperance, and love of country.

Suppose we did away with the Senate. Suppose we had only a single legislative body based solely on proportional representation — namely, the House of Representatives. Would we become a “pure democracy”? Not at all. Consider the Israeli Knesset or the Parliament of Greece. These are unicameral bodies of representative democracies.

The changes to the composition of the American system, should the Senate or the Electoral College disappear, consist not in the supposed degeneration from a republic to a democracy. Instead, they would disrupt (favorably, I think) the federal balance between the people and the states. Readers will note that Maitra’s column appeared in The Federalist, and yet he missed the crucial point here. The framers instituted a federal system in order to protect and preserve the republic. In other words, our system of divided sovereignty was not the end, but the means to an end.

Recall that Madison and company created the Constitution as a remedy to the current system, which had proved incapable of dealing with national issues. They met ostensibly to modify the Articles of Confederation; instead, they ripped it up and started over. One of the greatest problems with the existing system arose directly from state sovereignty. In Federalist 22, Hamilton wrote:

The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. (emphasis mine)

A Farewell to Kings

The core characteristic of republicanism is popular sovereignty. From this core, we derive the maxim of majoritarian rule. The other features emanating from the core principle exist in order to preserve the republic.

Why should the sense of the majority prevail in a republic? Because in a republic, sovereignty rests with the people. Here is where our system differs from a constitutional monarchy. Both Britain and the U.S. are representative democracies, but our government derives its “just powers from the consent of the governed.”

If you defined a republic as a system of government with a representative legislature, you’d be partially correct. The core characteristic of republicanism is popular sovereignty. From this core, we derive the maxim of majoritarian rule. The other features emanating from the core principle exist in order to preserve the republic. Yes, we safeguard the rights of minorities against a tyrannical majority. We do this not only as a simple matter of fairness but also because popular sovereignty refers to all the people. But in no way should we assert that majoritarian rule is a bad thing or that democratic principles are somehow at odds with republican government.

Under the Articles, smaller states could easily negate the will of the majority, which is what Hamilton was referring to above. In a footnote he wrote:

New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the whole number of the States, but they do not contain one third of the people.

A system wherein the minority can conspire to stop all operations can produce all sorts of mischief. The result is often bad compromises or pathetic inaction. Hamilton again:

If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated.

An observer of today’s U.S. Senate cannot help but see parallels here. Under the minority rule of low-population states, the upper house has become a place where bills go to die. Under Senator McConnell’s capricious rule, President Obama was denied a Supreme Court nomination. Under the Republican thumb, help for the citizenry during a global pandemic takes a back seat to partisan politics and the creation of a Supreme Court supermajority of the minority.

Today, when somebody mentions the fact that the “flyover” states have a disproportionate say in the election of the president, you can count on conservative thinkers chiming in on why this is a wonderful thing. Frank Gunter said as much in an op-ed on MSN back in May of this year. Hillary Clinton, as you may recall, won the 2016 popular vote by nearly 2.9 million. Something seems amiss here, right?

This result occurred because, according to Article II, Section 1 of the Constitution, Americans do not vote directly for the president. Instead, citizens in each state vote for electors, and the number of electors in each state is equal to the total of each state’s two senators and representatives. This procedure results in low-population states such as Alaska, Delaware, Montana, North and South Dakota, Vermont, and Wyoming having a disproportionate effect on presidential elections. In other words, if you live in Wyoming, your vote has a greater weight in electing the president than if you lived in California. A clearly undemocratic system – but undemocratic with an important purpose.

There follows the usual boilerplate blah-blah about direct democracies. Then he writes:

Like the Senate, the Electoral College gives small states leverage. And through the political logrolling that drives campaigns and elects presidents, this leverage helps small states maintain their vibrant independence on matters big and small. The Electoral College, like the Senate and Bill of Rights, is an undemocratic institution carefully crafted to preserve the vertical division of political power among the national government, the states and the people to prevent the tyranny of the majority. (emphasis mine)

Freewill

Again, we can agree that the purpose of federalism was to protect and sustain the republic. However, if we’re being honest, we have to acknowledge that the much-celebrated undemocratic features of the federal system have lately produced antidemocratic outcomes. In other words, we’ve moved beyond the point of simply protecting the minority. The system now actively thwarts the will of a growing majority putting in its place a tyranny of the minority.

What did the southern states do with their “vibrant independence on matters big and small” in the decades following the Civil War? In the upcoming 2020 election, Mississippi voters have the choice to end a two-tier Jim Crow election system in which candidates must first win the popular vote and then win a kind of miniature electoral college.

A candidate in a Mississippi statewide election first must win the popular vote and then win a majority of the state’s 122 House of Representatives districts — 42 of which are majority Black. If no candidate wins both the popular vote and the electoral vote, the race is decided by the Mississippi Legislature. As with the electoral college in a presidential election, representatives are not obligated to vote with their districts. [ABC News]

The rule is designed to make sure no African American will be elected to statewide office. It works exactly as it was designed. And here, because we have placed undue faith in the federal system to protect minority rights, we have a system that ensures the tyranny of the majority.

I used the term “undue faith.” I look at those words, and I shake my head. I should not fall into the trap of pretending that we are engaging with good-faith actors. Do you honestly believe today’s sanctimonious defenders of the anti-democratic Senate and the Electoral College really believe in what they’re saying? Anyone who truly believes in republicanism cannot defend structures that actively block the plain will of the people, not simply by putting the brakes on legislation or policy initiatives, but by the systematic and deliberate negation of majority rule.

In the end, of course, American conservatives embrace the quirks in our system that ensure antidemocratic outcomes because they want those outcomes. If they could achieve their goals through democracy, they would gladly embrace a national one-person-one-vote system. The destination is of ultimate importance; the vehicle is largely irrelevant.

The last credible argument for the continuance of the Electoral College — that the indirect election of the chief executive would protect us from an incompetent buffoon or a fraudulent, self-serving demagogue — died in 2016. Clearly now, for the protection of the republic and the preservation of democracy, we need to kill it once and for all.

Senator Birch Bayh, statesman and decades-long advocate of direct presidential elections, wrote the foreword to John Koza’s book, Every Vote Equal. In it he wrote:

In the final analysis, the most compelling reason for directly electing our president and vice president is one of principle. In the United States every vote must count equally. One person, one vote is more than a clever phrase, it’s the cornerstone of justice and equality. We can and must see that our electoral system awards victory to the candidates chosen by the most voters. In this day and age of computers, television, rapidly available news, and a nationwide public school system, we don’t need nameless electors to cast our votes for president. The voters should cast them directly, themselves. Direct election is the only system that counts every vote equally and where the voters cast their ballots directly for the candidates of their choice. It has the additional virtue of operating in the way most Americans think the electoral process operates—and is expected to operate. (p. xxi)

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Tim Widowfield

Tim is an RV Park host who lives with his wife and multiple cats in a 20-year-old motor home. To read more about Tim, see our About page.


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12 thoughts on “Is This Any Way to Elect a President? The Electoral College and Minority Rule”

  1. Ben Shapiro: “Trump is a hammer in search of a nail. Sometimes he hits a nail, it’s super satisfying. And sometimes he hits a baby and it is far less satisfying.” @ time 00:03:00

    Yes it is a joke (gaffe), but Shapiro is implying that as long as he is not personally at risk from Trump, then he will never disqualify Trump. The ends justify the means.

  2. My undergrad study of American history is a patchy memory but one of the few subtopics that has never left me is our discussion of Federalist Paper No. 63. I write as a very distant outsider so obviously am open to correction, but ….

    Was not the idea behind an electoral college (per #63) belief that a body of morally responsible persons should be in a position to guard against those relatively rare moments in history when a majority swayed by irrational forces acts against its own interests? Was not hope that such a “responsible minority” would act in the best public interest because they were removed from the forces that were whipping up — at isolated moments, not on a regular basis — irrational and self-defeating delusions?

    Theoretically such a system might be conceivable in a predominantly rural eighteenth century society before the age of rapid communications and transport. But it is not possible today when those would-be “responsible representatives” are immersed along with the majority in the swill of “fox-fake news” and all sorts of instant communications across the globe, not just the continent, and where those “responsible minority” themselves as often as not have vested political and economic interests in the spreading of the ideas that “momentarily” possess a majority?

    In other words, Federalist Paper 63’s justification for the electoral college was theoretically (I won’t say it was any more than that) valid in an eighteenth-century society but has become irrelevant in a modern technological mass society. Yes?

    1. I was trying to say that any elected representatives are in today’s world inevitably as deeply immersed in any “irrational” communications and ideas that affect the majority — they cannot in today’s society be isolated from such influences as was imagined to be the situation in the Federalist Paper 63. (There are many reasons for this development, not only modern technology.)

    2. Essentially yes. The “Founding Fathers” were deathly afraid of direct democracy because they were elitists. They were afraid people “of the middling sort” would take over the government and then be susceptible to being bought. People of the elite class, have wealth and land, and so are not only immune to such purchase, but have the “leisure time” to devote to the work of government.

      As you can see some of their fears came about but their class devotion was misplaced, certainly it is now that the “elite class” is strictly delineated by wealth, not intellectual accomplishment or artistic accomplishment or political accomplishment. This country is currently being run at the direction of the uber-wealthy. Nobody gets to run for large city school boards any more without being vetted by the wealthy class. To run for president, you have to be bought off. All presidential and vice-presidential candidates have been bought off and will do nothing to reduce the power of the filthy rich.

    3. Yes, Neil. To your point, the majority of states have passed laws to prevent electors from asserting their aristocratic prerogatives. Now, in most states, the election is considered a winner-take-all affair in which the electors are bound to vote for the winning candidate. So really, all that’s left of the Electoral College is a system that gives disproportionate weight to the states where fewer people live.

      https://www.reuters.com/article/us-usa-court-electoral-idUSKBN2471TI

      1. A careful reading of the report of the US Supreme Court decision seems to say it is upholding state laws against “faithless electors”. Such laws typically levy a whopping $1000 fine on any elector who votes differently than pledged, if that were to happen. I do not see in the US Supreme Court ruling, nor do I believe any US court has ruled, that an elector’s “faithless vote”–i.e. differently than pledged, would ITSELF not be valid or counted, when the electors actually formally cast their votes in December per constitutional process.

        In other words, the states’ laws with their whopping $1000 penalties (that will deter them!) for electors voting freely are constitutional–as would be more serious criminal penalties if so levied by states–but the electors’ votes THEMSELVES stand unaffected by the side issue of whether the electors may have violated state law and be subject to criminal penalties for doing so, after the fact.

        At least, I am not aware of specific US court rulings addressing this issue. Of course, all the predictions in the world as to what a US Supreme Court would or would not rule on an untested matter can go awry, since US Supreme Courts can rule any way they decide or wish, and give a rationale for it, and however one may disagree or find irrational that rationale, it is supreme and stands. So long as a majority of Supreme Court justices agree.

  3. I agree Steve “This country is currently being run at the direction of the uber-wealthy”.

    Tim, do you agree with what Steve said? If so, do you believe directly electing (popular vote) our president will fix this?

    Also, candidates campaign to win the electoral college, not the popular vote. We really don’t know how elections would have played out if candidates were campaigning to win the popular vote. And if we move to a popular vote, candidates will basically just campaign in CA, TX, FL, and NY. Maybe a little in IL, PA, OH, GA, NC, and MI. With technology, maybe campaigning is not needed anymore.

  4. Sovereign states can do unusual things, Jim Crow, gay marriage, marijuana…
    … when the Federal government can’t.
    …and vice versa…
    On Television it “looks like” France is run from Paris…
    …and Britain from London.
    Maybe that’s why in a “Town Hall” Q&A,
    Ms. Ewicky will ask the Presidential Candidate about her garbage pick-up.

    Further nonsense:
    Dare we risk a Constitutional Convention?
    Canada has a parliamentary government. (!)
    Does Honest Abe win with 39.8% of the popular vote?

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