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No Matter Who Wins Today, the Electoral College Has to Go

Last week I tried to explain the Electoral College to a very bright teenager from France. She’s attending my daughter's high school for a couple of weeks as part of an informal exchange—last year my daughter spent a couple of weeks attending her lycée in Nantes—and when she returns home she's supposed to write a report about the presidential election. She'd heard that Americans do not elect their president by popular vote, but she had trouble understanding exactly how we did elect them. Over a dinner of truite amandine (I was trying to make her feel at home), my girlfriend and I answered her questions. (My daughter was busy making phone calls for Obama, bless her heart.)

We explained that in the U.S., people don’t elect presidents; states do. Not every state has an equal share in the vote, but the state shares aren’t entirely proportional to population either. Each state gets as many electors as it has U.S. representatives (a population-based allocation) plus U.S. senators (two for every state, regardless of its size). That gives small states an advantage. “So big states have a disadvantage?” she asked. Well, no, we explained, because every state except Nebraska and Maine awards its electors on a “winner-take-all” basis. Small states get an advantage, but big states get an advantage, too. It’s in the medium-sized states where individual votes get diluted. And these “electors”? Qui sont-ils? They’re actual people, chosen at the state level to represent one candidate or another, but there’s no federal law requiring them to, and nobody’s ever been prosecuted for voting for somebody else instead, as some oddball “faithless elector” will do now and then (most recently in 2004).

At about this point a puzzled frown appeared on our French guest’s face, and I could tell that she was thinking: C’est stupide.

Oui, bien sur. Foreigners can never understand why American voters put up with the Electoral College, and I’m hard-pressed to come up with any explanation other than this. We Americans love our Constitution so much that we can’t bear to change even the stupid parts. It took 74 years and a bloody Civil War to get the Constitution to say that human beings are never property, so don’t expect fast action changing a system of choosing presidents that makes most people’s eyes glaze over—even if it is an affront to most contemporary notions of democracy.

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The Electoral College does have a few defenders. Their main argument is that it manufactures majorities. It’s been relatively rare in recent years for any one candidate to win a large majority of popular votes. Obama’s 53 percent in 2008 was the biggest presidential majority since George H.W. Bush’s 53 percent twenty years earlier. Bill Clinton had to settle for popular-vote pluralities rather than majorities, and of course George W. Bush couldn’t claim even a plurality in 2000 (though he went on to win 51 percent in 2004). Electoral college tallies exaggerate pluralities into majorities and slim majorities into bigger majorities: 365-173 for Obama in 2008; 286-251 for Bush in 2004; 271-266 for Bush in 2000. OK, that last one was very close, but that year the popular-vote victory margin was 0.51 percent (in Gore’s favor), as opposed to an electoral-vote margin of, hey, a full percentage point (in Bush’s favor).

The Electoral College’s majoritarian bias is not built into the Constitution, so it’s no use attributing it to James Madison’s far-seeing critique of “domestic faction and insurrection.” It’s the result of individual decisions by 48 states to maximize an individual state’s influence on the outcome (at the expense of its citizens’ influence) by awarding electors on a winner-take-all basis. True, the winner-take-all Electoral College does prevent the vote from splintering, potentially giving us popular-vote winners with pluralities below 30 percent. But that potential problem could be addressed through runoff elections. The argument against runoff elections is that they potentially empower fringe candidates to become power brokers. But in the U.S., political candidates don’t typically have much influence over their supporters when they bow out of a race and endorse somebody else.

As the Bush-Gore debacle showed, sometimes the Electoral College does more than just exaggerate the margin of victory; sometimes it changes who the victor is. In our focus-group-and-computer-driven modern democracy, in which fierce competition between the two dominant parties efficiently divides the electorate into near-perfect halves, it seems likely that splits between the popular vote and the electoral vote will be more frequent than they’ve been in the past. Before Bush in 2000, John Quincy Adams (1824); Rutherford B. Hayes (1876); and Benjamin Harrison (1888) were the only presidents to lose the popular vote. But a split seemed very possible in 1960, 1968, 1976, 1992, and 2004, and it once again seems very possible in 2012 (with Obama winning the Electoral College while Romney wins the popular vote).

One particularly unpersuasive argument in favor of the Electoral College is actually derived from the 2000 election. This is the “50 Floridas” argument. Sen. Mitch McConnell articulated it in 2001:

The difference between Al Gore and George W. Bush in the national popular vote was about 500,000 (less than that, even, in the first few days after the election). That is a difference of less than 0.5% of the votes cast. A few thousand votes here and a few thousand votes there could have changed that election result. The Electoral College served to center the post-election battles in Florida. Without it, I fully expect we would have seen vote recounts and court battles in nearly every state of the Union.

What this fails to recognize is that when you’re assembling one big count rather than a lot of little ones it’s a lot less clear what’s to be gained from rigging any of the little ones. There are no states to win or lose; there is only the national popular vote to win or lose. And when all that matters is one big national tally rather than a lot of little ones, the likelihood of a close-enough-to-manipulate tally is smaller, not greater, simply because the numbers you’re dealing with are much greater. The national difference between Gore and Bush may have been 500,000 votes in 2000 (actually 543,895), but the outcome-changing difference in Florida was a mere 537 votes (according to the official tally, anyway). There’s no end to the ways you can massage a 537-vote plurality for one candidate into a 537-vote for another one. And there’s a powerful motivation to do so when that narrow majority can be leveraged in a populous, winner-take-all state like Florida into an outsized share of the Electoral College. Under a popular vote, such leverage isn’t possible. All votes are equal. As they are, one should note, in state legislative elections under Reynolds v. Sims, the Supreme Court’s “one man, one vote” ruling in 1964. The final irony of the Electoral College is that, were it not written into the Constitution, its unequal distribution of voter power would be judged, by the highest court in the land … unconstitutional.

The best solution to the Electoral College’s inequities would be to write it out of the Constitution. That would be difficult, but not impossible. (After all, we’ve amended the Constitution 27 times before.) Second-best would be for more states to join California, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, Vermont, Washington, and the District of Columbia in the National Popular Vote Interstate Compact, which pledges to award state electors based on the national popular vote (weirdly, it’s within each state's power to do so) once all the states in the compact account for a majority of all electoral votes. (At the moment, they account for about one-quarter.) If President Obama wins today's presidential election without winning the popular vote, he should endorse the compact, and perhaps even a constitutional amendment. Some might worry it might undermine his own legitimacy, but I think that would be logically unassailable, given that both sides shaped their strategies according to existing rules. What it would do, I think, is convey Obama's sense that here, as with so many other things in government, there's a better way.

Correction. An earlier version of this column gave an incomplete list of states that have joined the National Popular Vote Interstate Compact, and stated, erroneously, that it accounts for about one-eighth of all electoral votes, when in fact it accounts for twice that proportion.