Political Hay

The Rules of the Game

If this primary season is democratic, then isn't the Electoral College?

By 4.21.08

Send to Kindle

Citizens in every part of our country, and people around the globe, have observed something they have never seen before: the variety in the election laws of the American states as each state's voters participate in the process to nominate candidates for president. But:

Is it democratic not to have secret ballots when voters meet (in caucus)?

Is it democratic to require voters to remain for several hours, to allow fellow voters to encourage others to change their votes, and to hold the voting open?

Is it democratic to deny candidates who receive fewer than 15% of the votes any (proportional) representation? Is it democratic (in winner-take-all contests) to deny candidates who receive less than a majority, or less than a plurality, any delegates?

Is it democratic to hold both a primary and a caucus on the same day in succession?

Is it democratic to allow people who are not registered members of a party to vote in that party's nomination process? Is it democratic to allow people who are registered members of one party to vote in another's?

Is it democratic to allow voters to cast their votes on different days, over the course of an entire month ("early voting"), so they do not possess the most recent information about current events and the candidates, such as debates held in their state? (Indeed, is it democratic to have the primaries and caucuses themselves spread out over six months, ending seven months before the winner of the general election takes office?)

Is it democratic for a national party to allocate delegates to the national convention to states based on what the electorates in each state, consisting of different sets of voters, did in earlier election cycles -- that is, not by the number of people who are currently registered in a state as party members, or by the turnout in this cycle's primary or caucus -- thereby "punishing" the current electorate for the "sins" of their fathers?

Is it democratic for a state party to allocate delegates between territorial districts within a state based on what the electorates in those districts, consisting of a different sets of voters, did in earlier election cycles?

Is it democratic to apportion the delegates of a state by territorial districts, making it possible for a candidate to win a majority the state-wide popular vote but not obtain a majority of the delegates?

Is it democratic to have 20% of the total number of delegates to be designated as such ex officio ("superdelegates") when they were elected to their offices in a prior election cycle and they were not elected for the purposes of voting in a national convention?

Is it democratic to hold a primary or caucus but not have it result in the selection of pledged delegates -- a process that awaits a later state convention?

Is it democratic for a national party to forbid a change in the date of a state's primary or caucus at the price of either losing all or some of the state's delegates to the national convention or having a second primary or caucus (a "do-over") in compliance with the national party's rule?

If any of these is democratic, is it democratic to have all of them in the same election cycle among citizens of the same country?

What this primary season demonstrates is that, while democracy need not be uniform in every jurisdiction, it is most important to have the rules set ahead of time so voters and candidates can understand them and abide by them.

IT IS IN THIS LIGHT that we should look at the Electoral College's role in the general election for the U.S. President. If the different processes among the parties and the 50 different processes in the states leading to the nomination of candidates for president do not derogate from the legitimacy of their nomination, then having an Electoral College elect a president does not either.

Undoubtedly you have heard or read pundits, op-ed writers, politicians, and professors all claim that we have elected presidents with a minority of the popular vote. This is simply untrue and, in propagating this myth here and abroad, we undermine the legitimacy of our presidents and do a great disservice to ourselves, to our children, and to our American democracy. Under the current Constitution, we have never elected, and will never elect, a president with a minority of the popular vote.

How can so many be so wrong? We have only to look at the rules of the game. Consider the following question from the world of sports.

What team really won the 1979 NCAA Men's Division I Basketball Championship between Indiana State (with Larry Bird) and Michigan State (with Magic Johnson)? Just check the videotape of the game and count all the baskets, including the 3-point shots. You immediately object that there was no 3-point shot in NCAA basketball until 1986. My point precisely. And there has never been a national popular vote for president so no president has been elected with a minority of the popular vote.

Our Constitution provides the rules of the game. If no candidate receives a majority in the Electoral College, then the House of Representatives chooses among the top three candidates receiving votes in the Electoral College and only the person receiving an absolute majority of votes in the House (currently 26 with each state having one vote) is elected president. Under either scenario, only a candidate with the majority of votes can be elected.

Some object to these rules and to having the Electoral College. Some of these people mistakenly believe that all of the rules are set by the Constitution. They are not. Some are set by Congress, such as having a uniform date for the states to select electors. (The date was set in 1845 to stop the states from jockeying for position. Sound familiar to the leapfrogging by the states of primary dates?) Some are set by the individual states. The Constitution provides that the individual states choose the method of selecting electors. Two major state reforms affecting the Electoral College have already happened twice in our history. By 1836, all states but South Carolina had changed its laws to select the state's presidential electors by popular vote and to do so by what we now call winner-take-all or the unit rule (historically known as the "general ticket"). Currently, Maine and Nebraska employ an arrangement other than winner-take-all, and California is considering joining this group.

In Maryland and Colorado and other states, there is support for a state law (an interstate compact) that would bind electors from the states joining the compact to vote for the presidential candidate having the majority, not of the particular state's popular vote, but of the national popular vote. The changes made by the states in the 19th century did not depend on what other states did or did not do, so this proposal would be a new kettle of fish since it would require states to rely on certification of voting results by other states.

The people of our states could consider other possibilities, such as one where the bonus of winner-take-all is conditioned upon certain events. For example, one of our values is electing a president who has broad support, who finds and articulates common ground. A state could, therefore, condition the granting of the winner-take-all bonus to the candidate who, in addition to obtaining a majority or plurality, obtained support among the widest spectrum of citizens, such as a plurality in at least 70% of the counties. (This would be akin to the rules of the Iowa Democratic Party caucus.) If the condition were not met, no candidate would obtain the bonus and electors would be selected proportionally.

Another value is the promotion of voter participation. A state could, therefore, award a winner-take-all bonus only if, in addition to obtaining a majority or plurality, a high percentage of the state's eligible or registered voters voted in the presidential election. If the condition were not met, then proportionality would be used. Imagine the "get out the vote" effort if California allotted all 55 of its Electoral College votes to the candidate with a plurality only if at least 60% of eligible voters voted.

WHILE THERE MAY BE problems with the Electoral College and while there may be problems with proposed solutions, my concern is the constant drumbeat we have heard from at least the 1992 election of Bill Clinton. One hears the constant refrain that Mr. Clinton was a minority president after both the 1992 and 1996 elections. And, of course, there is the conventional wisdom that Mr. Bush the Younger lost the popular vote in 2000 to Mr. Gore. This same argument is used to undermine the legitimacy of John Quincy Adams, Abraham Lincoln, Woodrow Wilson, and Richard Nixon, all of whom purportedly obtained less than 50% of the national popular vote.

The United States does not have a parliamentary system like the United Kingdom's whereby the queen, after parliamentary elections resulting in no majority winner, will ask the head of one of the minority parties to form a government. And the United States does not have a presidential system like Argentina's. As evidenced in the October election of Senator de Kirchner, Argentina allows a candidate, who has met the two criteria of having won a plurality of 40% or more and has beaten the nearest competitor by 10% to become president, even if the candidate has obtained less than 50%. She is a minority president. The same is true for Lee Myung-bak who obtained only a plurality of the popular vote in the South Korean presidential election in December.

Professor Edward Larson, the author of a book on the presidential election of 1800 (The Magnificent Catastrophe), was asked if Jefferson would have won the election if the three-fifths rule had not been in effect. This provision in the U.S. Constitution counted three-fifths of the slave population toward the determination of the number of representatives in the House, and thus affected the number of electors of a state in the Electoral College. He replied that this would be "counterfactual" history since the presidential race would have been conducted differently under a different set of rules. (Diane Rehm Show, Sept. 25, 2007.)

And so it is with respect to the Electoral College as it now exists. To make an argument based on a supposed national popular vote is counterfactual. No voter has ever voted, and no candidate has ever campaigned, in the context of a national popular vote for president. There has been no contest for the national popular vote and, therefore, there have been no winners and no losers of such a contest. It is speculative, it is theoretical, as to what the results would be if voters and candidates had participated in such a campaign. We do not know, and we never can know, what the vote totals in non-battleground states would have been if there had been a contest for the national popular vote. The popular vote in an individual state is meaningful -- since it determines how the state electors will vote. The popular vote in the individual states, when aggregated on the national scale, however, is meaningless. This is true not only for those who have lost the Electoral College vote but also for those who have won it. It is said that President Bush the Younger rightfully won the presidency in 2004 because he had three million more votes than Mr. Kerry. I will grant that it is aesthetically pleasing to roll up the numbers in all 50 states and learn that more people voted for the winner of the Electoral College vote than the loser; such a result gives the appearance of greater legitimacy. But this aggregation is meaningless under our system and it is wrong to claim otherwise.

Of course there is the danger that the popular will may be frustrated by the outcome in the Electoral College. From 1824 to 2004, there have been 18 elections where the president was elected with an aggregated national popular vote under 50%. But by what method do we determine the "popular will"? If not by exit polls on the day of election and if not by polls before or after election day, it is just as wrong to determine it by aggregated national popular vote totals. Our Constitution, with its Electoral College, is the only current system to determine the popular will in a presidential election. We can change the system, but the winner under the current system is the majority and legitimate president.

Human nature being what it is, people will continue to aggregate the 50 states' popular votes into a national popular vote and examine its entrails for meaning. So, we need a short and true adjective to describe this number; I respectfully suggest that we call it "the mock national popular vote for president."

Like this Article

Print this Article

Print Article
About the Author
James M. Thunder is a Washington, D.C. attorney.