The 2004
Presidential Election and the Electoral College
How the Results Debunk Some Defenses of the
Current System
Vikram David Amar
FindLaw
November 12, 2004
This week, analysts have been
scrambling to understand what last Tuesday's Presidential election
really teaches us. In this column, I'll argue that some of the
election's lessons relate to constitutional law and structure - and,
in particular, to the electoral college system we use for selecting
Presidents.
Overall, the 2004 election serves as further proof that the
country would gain much, and lose virtually nothing, by abandoning
the electoral college system.
The Basic Critique of the Electoral College and the Relevance
of the 2004 Election
In a
previous column, I have explained why to my mind the electoral
college model was flawed from the outset, and should be replaced
with a truly national, one-person one-vote, direct election. I will
quickly summarize this argument here.
In the late Eighteenth Century, the electoral college system
reflected an unfortunate -- albeit perhaps necessary at the time -
compromise. The compromise allowed Southern states, whose assent was
needed to get the new Constitution off the ground, to count their
slave populations (at the rate of 3/5) for purposes of
representation in the House of Representatives -- and thus in the
electoral college - even though slaves obviously were not allowed to
vote. As a result, a slave state like Virginia had significantly
more electoral college clout than a free state like Pennsylvania,
even though Pennsylvania had more eligible voters.
Perversely enough, the more slaves that a state bought or bred,
the more electors it would get. And if a Southern state were to free
any of its slaves, who then immigrated North, the slave state would
actually lose strength in the electoral college relative to
its free state neighbors.
What was true for slaves was also true for women: A state had
(and has) no incentive under the electoral college model to expand
its franchise to anyone, for its voice in the college is determined
simply by how many persons - voters or not - live in the
state.
By contrast, a well-designed system of national direct election
could (with federal safeguards in place to prevent fraud and abuse)
actually create incentives for each state government to increase
voter turnout within the state. Since a state would have a voice
only through its voters, it might plausibly think: The more voters,
the better.
Proponents of the current system often concede some of the
electoral college's tainted origins, but nonetheless try to offer
modern defenses to justify its continued existence. Last week's
election shows, however, that many modern defenses of the electoral
college are makeweight or at the very least overblown.
Myth # 1: The Electoral College Is Needed Because It Helps
Small States
Take, for starters, the idea that the electoral college is a good
thing to preserve because it gives a boost to small (that is, low
population) states. There is a sense in which small states
get an exaggerated say in the electoral college; each state,
regardless of size, gets two electoral college votes for its two
U.S. Senators.
But even assuming that helping small states were a good thing,
the electoral college, as it has evolved, does not in fact favor the
less populous states on balance.
The reason for this is the winner-take-all system that (almost)
all states use for allocating electors. This winner-take-all method
gives mid-sized and large states an enhanced voice in the electoral
college game. Under winner-take-all, the candidate who wins a
plurality of popular votes in a state gets the state's entire
electoral bounty. By holding this large prize out to the candidates,
a mid-sized or big state - particularly one where the swing voters
are in play - is able to create tremendous incentives for the
candidates to visit and to make promises to that state in
particular.
And, indeed, that is exactly what happened in 2004. The three key
states on which the candidates lavished attention down the stretch
were all large states whose swing voters were in play -- Florida,
Pennsylvania and Ohio. Most analysts (rightly) predicted that the
winner of two of three of these states would win the White House,
regardless of who won a state like New Mexico. And the candidates
took note of this analysis; witness the fact that President Bush
visited Pennsylvania a record 44 times during his first term.
Winner-take-all is unlikely to go away anytime soon. Consider
another, related 2004 lesson: Colorado voters soundly rejected a
statewide initiative that would have split its nine electoral votes.
As Colorado voters probably realized, winner-take-all is
preferable for any given state precisely because it gives
that state more clout than the state would have if it split its
electors (proportionally to the state's overall popular vote, or on
a Congressional district-by-district basis). And as long as
winner-take-all is the rule in the overwhelming majority of states,
the claim that small states are specially favored by the electoral
college system will remain a myth.
The truth is that with winner-take-all favoring bigger states,
and the "two Senators per state" rule favoring small
states, neither large nor small states are specially favored. And
that means that even those who favor the small states having
disproportionate power lack a reason to prefer the electoral college
over a direct national election.
Myth # 2: Inversion -- in Which a National Popular Vote Winner
Loses the Electoral College - Is Statistically Unlikely To Recur
Some people resist replacing the electoral college with a
national direct election on the ground that almost all popular vote
winners prevail in the electoral college anyway. The idea is: No
harm, no foul. The electoral college and a direct election will
virtually always yield the same result, so why bother to change the
system?
There are several problems with this argument, however. First,
even if it were true that the two methods would virtually always
generate the same result, why should we tolerate any
possibility of electoral "inversion" - an electoral winner
losing the popular vote?
Second, and more fundamentally, it's not true that the two
methods will virtually always lead to the same result. To the
contrary, for a variety of demographic reasons, the possibility of
inversion is quite real today, and may remain so for years if not
decades.
Consider recent history. 2004's numbers show 2000's inverted
outcome was not statistically anomalous. It's true that last week
George Bush won both the electoral college vote, and the nationwide
popular vote - which he took by 3.5 million votes (or so). But
inversion was a real possibility.
Suppose the weather in Ohio had been better, or Kerry's campaign
had been ever so slightly more effective there. Then Kerry might
have picked up an extra 125,000+ votes in that state, edged out
President Bush in the electoral college, and won the election. Yet
he still would have been behind by over 3 million votes in the
nationwide popular vote tally.
Myth # 3: The Electoral College Cannot be Scrapped Because
Eliminating It Would Benefit One Party
This very possible inversion in favor of a Democrat in 2004 shows
not only that inversion is no anomaly, but that there ought to be
bipartisan support for getting rid of the electoral college. Just as
the electoral college doesn't really help small states versus large
states or vice versa, neither does it help the Republicans versus
the Democrats or vice versa. The Republicans benefit from the
small-state skew discussed above -- Republicans tend to do well
these days among rural whites. But the electoral college also
exaggerates the power of big states, via the winner-take-all rules
analyzed earlier. And that tends to help Democrats, who win among
urban minority voters.
On balance, these two opposing forces largely negate each other.
Republicans win more states, but Democrats win more big states. The
net effect is to disfavor neither side, but rather only democratic
principle. So when inversion happens - and it has happened, and will
happen in the future - it could randomly victimize either party. The
snake that bit Democrats in 2000 could easily have turned around and
bitten Republicans in 2004. (Or in 2000; recall that before the
election, many pundits predicted that Gore would lose the
popular vote and win the electoral college.)
The solution is to kill the snake: The President should be the
popular vote winner, period.
Myth # 4 - A Direct National Election Would Lead to More
Recounts and Voter Fraud
Some electoral college fans fear the specter of nationwide
recounts if direct national election were adopted. The idea is that
if all that mattered were the national vote total, then recounts in
a number of places would often be necessary before Presidential
election disputes could be resolved. Worse yet, because votes all
across the country would be essentially interchangeable, the
incentive to steal and manufacture votes anywhere and everywhere
would go up tremendously.
But 2004 demonstrates how just the opposite can often be true.
George Bush won the national popular vote by over three million
votes, and yet 12 hours after the polls closed, John Kerry had not
yet conceded because there was a possibility of a recount battle in
Ohio.
The truth was that whatever shenanigans and/or improprieties
might have existed in Ohio, no one was going to find a whopping
three million uncounted Kerry votes lying around across the nation.
Thus, if we'd had direct elections, Kerry would doubtless have
conceded sooner, and the chance of litigation would have been
greatly lessened.
It was because of the electoral college that Kerry supporters
would not have needed to find millions of votes, but rather about
125,000 in Ohio, to cast the entire election's result into doubt.
With that number comparatively small, a few corrupt Ohio officials
favoring Kerry might have thrown the nation into chaos by
fraudulently producing the required number of "overlooked"
Kerry votes.
The lesson of the Ohio experience is this: A thin electoral
college victory may occasion recounts even when there is a dominant
national vote winner.
Myth # 5 - The Electoral College Reduces the Chance that the
Victor Will Be a Candidate Popular in Some, But Not All, Regions of
the Country
The final myth that our recent election debunks holds that the
electoral college makes it unlikely that an election victor will
enjoy popularity that is not national, but simply regional. 2004 was
but one of a number of elections in our history that show that an
electoral college winner can, indeed, have mainly regional appeal.
The red/blue map for 2004 shows that the red and blue states are
hardly distributed randomly throughout the country's geography.
Every red state is bordered by at least one other red state. Every
blue state is neighbor to at least one other blue state. (The 2004
state bloc contiguity is even more pronounced than it was in 2000,
where New Mexico was a blue island and New Hampshire was a red
island.) Bush had regional appeal; so did Kerry. The electoral
college system did nothing to curb the chance that a President would
be elected whom some regions loved, and others disliked.
There's no doubt about it: The country's Presidential preferences
definitely break down on regional lines. (And as striking as the
red/blue state maps are, the red/blue county-by-county map is even
more intriguing. It shows how people living near major bodies of
cold water vote Democrat, and those who do not tend to vote
Republican, a phenomenon discussed by
John Tierney in the New York Times.)
2004's results confirm that a person with much, much stronger
appeal in some parts than others can win the White House. Yet the
2004 map is hardly unique in American history. The
maps of the elections of 1860, [1896] and 1924 all demonstrate
nicely how the electoral college does not guarantee that the country
will enjoy the benefit of having a President with strong voting
support in all regions of the country. (The 1896 map is particularly
interesting, showing an almost identical state-by-state breakdown as
2004, but with the Democrat and Republican states inverted; the
parties' regional strengths have flipped almost completely over the
course of a century!)
So contrary to myth, an electoral-college-picked President won't
necessarily garner national - as opposed to regional -- support.
Indeed, a direct national election might tend to make the
red states less red and the blue states less blue.
Because Kerry knew that he couldn't win over a plurality of
voters in any southern state, he simply stopped trying to woo any
southern voters. The same is true for President Bush in New York and
California. The lopsided margins of victory in all those states was
in part of function of one side giving up because winning over more
voters in a state does not matter unless a candidate wins the state
overall.
Granted, a direct national election might not result in a breakup
of the Confederacy or West Coast voting blocs. But if campaigning -
like the election - went truly national, the margins of victory in
many states might be reduced. The result would be a President whose
support is slightly more geographically balanced.
What's New
Electoral College Table of
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