The Electoral College Is Seen By Many as the Deplorable College

Editor’s note: We were fascinated by a recent column in the Washington Post that wondered if “this time Bush could be the candidate on the losing end of the equation.” What was being examined was the weird algebra of the Electoral College, the systematic mishmash that has denied the presidency to three popular-vote winners over the years. If this does happen again in 2004, the writer thought, “two misfires in a row would cause enough of an uproar to prompt a genuine national conversation about whether the Electoral College system is still the best way to elect a president.” We really don’t think it is.

No one can forget the 5-to-4 Supreme Court decision in December 2000, 36 days after former Vice President Al Gore won a close election by a margin of 543,000 votes nationally over George W. Bush. The Supreme Court stopped the ballot recount in Florida, leaving Bush with the dubious 537-vote edge over Gore there. That helped give Bush a 271-to-267 count in the Electoral College and put him in the White House.

There have been other misfires, as noted below, and it seems such a mess to a lot of us that we asked the scholar who wrote the Washington Post piece to say more. Thomas F. Schaller holds a doctorate in political science and is an assistant professor at the University of Maryland’s Baltimore campus. He is also executive editor of the progressive political website Gadflyer.com.

Schaller explains his view of the increasing phenomenon of the “red states” and “blue states.” These labels come from the published and televised maps coloring the states red that are Republican-majority strongholds and blue that go for the Democrats, those states that held on for Gore in 2000. There are a total of 18 “battleground” or “swing states”—sometimes colored purple—whose choices are less predictable.

The spectacle of the 2000 presidential contest between George W. Bush and Al Gore—an election not decided until 36 days after ballots were cast and won by the candidate who finished second in the national popular vote—has raised anew long-dormant questions about the utility of the Electoral College method of selecting American presidents.

With an eye on this November, we need to consider the implications of the Electoral College for the polarized, “blue-red” America of 2004. Has the Electoral College, a vestige of American colonial thinking, exhausted its value? Should we simply abandon it in favor of the most obvious alternative—the direct, popular-vote election of American presidents? These are arguable questions. But if another electoral crisis occurs this November, one thing is certain: 2004 will be remembered as the year that the Electoral College itself was on the ballot.

Any discussion of the Electoral College begins with the phenomenon political scientists refer to as “unit rule”the winner-take-all capture of a state’s electors by the candidate who receives a majority, or even a plurality, of the state’s popular vote. Except for Maine and Nebraska, which assign their electors based on both statewide and House district performances, the remaining 48 states and the District of Columbia have winner-take-all contests.

Consider the unit rule’s implications in the extremes: In a two-party race, one candidate could win each of the 50 states, plus the District of Columbia, by a single vote and thereby capture all 538 electoral votes, despite, a 51-vote-margin virtual tie in the national popular vote.

On the other extreme, in 2004 a candidate could theoretically win only the 11 most-populous states—California through North Carolinaagain by just a single vote each, yet still collect 271 electors and the White House without so much as appearing on the remaining 39 state ballots. Popular votes matter, but only insofar as they lead to a combination of statewide victories that yield the 270 or more electors that constitute a majority.

THE MISFIRES—Former Vice President Al Gore learned this bitter lesson in 2000, much as fellow Democrats Samuel Tilden (1876) and Grover Cleveland (1888) had before him. All three were victims of what’s known as a “misfired” election, in which the popular-vote winner fails to receive a majority of the electoral votes.

The 1824 contest was a special variant of the misfired election: Democrat Andrew Jackson came in first in both the popular and electoral votes, but did not win a majority of the electors, who were split among four candidates. When no candidate receives a majority of the electors, the Constitution empowers the House of Representatives to choose the president, and the House picked John Quincy Adams over the insurgent Jackson.

Misfires, however, are just one potential complication of the Electoral College method for selecting presidents. Another is “faithless electors”—that is, electors who vote for candidates other than those to whom they were initially pledged.

According to the National Archives and Records Administration, in the 2000 election 26 states and the District of Columbia had laws that in some way bound their electors to vote for the presidential slate to which they were pledged. But the 257 electors chosen by the remaining 24 states were unbound. And electors sometimes lose faith.

In 1988, for example, a West Virginia Democratic elector reversed his ballot, voting for Lloyd Bentsen for president and Michael Dukakis for vice president. And in the District of Columbia, which binds its electors, nothing prevented one 2000 elector from simply abstaining—she said she was protesting the capital city’s “colonial status”—thereby depriving Gore of one electoral vote.

The Maine and Nebraska exceptions, and the divergent state laws on binding electors, imply what I will make explicit: The Tenth Amendment safeguards the right of states to determine how their electors will be assigned, thereby adding a degree of uncertainty to presidential elections. Indeed, recount enthusiasts will remember that when the Florida Supreme Court issued its ruling favorable to Gore in early December 2000, the Republican-controlled state legislature hinted that it might exercise its powers, under Article II, Section I of the Constitution, to certify electors in a manner that it saw fit.

By establishing electors and leaving many decisions to the states, during the past two centuries the Constitution created a presidential selection mechanism that has led to mixed-party administrations, presidents elected without national popular vote majorities or even pluralities, and a variety of state and national electoral controversies.

THE PROBLEMS—Many residual complications of the Electoral College—some would call them flaws—persist. Most presidential elections, of course, do not reveal these latent complications. But close elections like the one in 2000 remind Americans that they do not choose their presidents by direct, national popular vote, and the attendant risks of not doing so.

What can be said of the implications of the Electoral College for the polarized “blue-red” America of 2004? The short answer is that the Electoral College is especially problematic in a divisive political time like the present.

With pollsters and pundits projecting a tight battle between President Bush and Massachusetts Senator John Kerry this November, at least three contemporary implications of the Electoral College deserve mention.

The first is that the geography of a divided America takes most states out of play during the presidential election. The major parties and their nominees have already conceded somewhere between 29 and 33 states from the outset.

This is not evidence of political laziness by Republicans or electoral myopia by Democrats. Rather, both parties know that their resources are better spent in the 17 to 21 “purple” battleground states that will decide who wins the White House.

Based on 2003 Census estimates, the 16 states almost universally agreed to be “battlegrounds” and the five that some also consider competitive—Colorado, Delaware, Maine, Louisiana and Tennessee—make up just 40 percent of the national population and 39 percent (212) of the electors. That means that three out of every five voters will mostly be ignored between now and November 2.

Because only the swing voters in the 21 “purple states” matter, the unit rule of the Electoral College effectively reduces the election to a decision of a narrow 4 percent to 8 percent of all voters.

Despite gridlock nationally, the states have become less competitive in national elections. When Democrat John F. Kennedy slid past Republican Richard Nixon in the 1960 popular vote by less than two-tenths of one percent, only 16 states were won by a vote margin of 10 percent or more, with only six carried by 20 percent or more.

By contrast, 28 states, plus the District of Columbia, produced double-digit popular vote victories in 2000 for either Bush or Gore, and 14 of those states were carried by more than 20 percent. One must go back almost a century to find an election as close nationally and as uncompetitive on a statewide level as was 2000.

It seems the red states are getting redder, the blue states bluer. Moreover, as Emory University political scientist Alan Abramowitz points out, few of the most populous states are competitive. Aside from Florida, the battlegrounds are composed of states with small and medium-sized populations.

This coupling of large-state blowouts with smaller-state battlegrounds leads to the second implication of the Electoral College for a polarized America: the increased likelihood of a misfired election.
Recall that in 2000 Gore beat Bush by nearly three million combined votes in California and New York alone. But these surplus votes could not help Gore in Florida or New Hampshire, which he lost by 537 and 7,211 votes, respectively.

America has never experienced back-to-back misfired elections. But do not rule out the possibility in 2004 of either Bush returning for four more years despite losing the popular vote again or, alternatively, Kerry winning California and New York by smaller margins than Gore while carrying enough small-state battlegrounds to capture the White House despite losing the popular vote.

Indeed, there are eerie parallels between recent presidential elections and those of the late nineteenth century. None of the winners in the five presidential elections between 1876 and 1892 garnered an absolute majority of the national popular vote, and neither have winners of the past three elections—Bill Clinton twice, and Bush once.

Even if Ralph Nader’s independent candidacy garners a mere one percent, 2004 could be the fourth consecutive election in which the winner enters the Oval Office despite the fact that a majority of Americans voted for somebody else.

A final, contemporary implication of the Electoral College extends from the previous two, and relates to turnout. If most citizens recognize that their votes have little chance of affecting the presidential election, and that the outcome may not reflect the will of the national majority or a plurality of voters, the incentives to vote are understandably diminished.

WHY VOTE?—There are myriad reasons why voter turnout in America is abysmally low compared with other industrialized nations’ turnout. But surely the Electoral College method of selecting presidents doesn’t help, and probably exacerbates, the problem of poor turnout in divided America. All of which calls into question, yet again, the utility of the Electoral College.

Let me be clear: The Electoral College is not without merit. Statistical minorities that might otherwise be marginalized can prove pivotal if they are concentrated on voters in key states, such as African-Americans in the Southeast or Latinos and Native Americans in the Southwest. Those who drafted the Constitution were not concerned about ethnicity, but they did want to prevent economic groups, states and regions from being ignored altogether.

The Electoral College affirms both the Founders’ wariness about granting Americans direct, popular control over their new government and their Federalist impulse to make states the key unit of American governance and electoral aggregation. How, then, can the Electoral College be improved without violating the spirit of the Founders’ intentions?

One solution would be for the other 48 states to adopt the Maine-Nebraska system for apportioning their electors. Each state’s elector count is based on its national representation in the bicameral Congress: Two electors representing each state’s two U.S. senators, plus one for each House member.

Maine and Nebraska assign their two “Senate” electors to the presidential slate that carries the state—after all, senators are elected statewide—and one elector to whichever presidential ticket carries each House district. For the District of Columbia and the seven least-populous states that have only one House member, all three electoral votes would be assigned based on the statewide winner.

This “congressional district” method for assigning electors is alluring because it would force nominees and parties to campaign in competitive House districts in otherwise uncompetitive states. Meanwhile, the campaigns would have to compete for key blocs of voters in the uncompetitive House districts of the competitive states, where every vote counts toward the goal of winning statewide.

Of course, had the Maine-Nebraska method already been in place in all the states, both Bush and Gore would have run different geographic campaigns, undoubtedly altering the results within the congressional districts, statewide or even nationally. Whatever the case, the point remains: Both Bush and Gore would have had to run broader, more national campaigns.

The second change I advocate is for the 24 states with unbound electors to pass laws to require their electors to vote according to the House district and statewide popular vote returns. That way, politicians would be prevented from engaging in political intrigue to promote “faithless elector” scenarios.

What’s most appealing about these two reforms is that they reaffirm the Founders’ fealty to federalism, both procedurally and functionally. Procedurally, the changes could be made by the states themselves, without amending the U.S. Constitution. Functionally, the use of statewide and sub-state units to aggregate votes—the same units used to construct the bicameral Congress—honors the Founders’ desire to balance the will of local and statewide populations.

In the main, the Electoral College has served the nation well. With a little tweaking from the states it could function more effectively in the future.