Tag Archives: electoral college

it’s The Structure, Stupid!

A reader recently sent me a link to an article from Governing with a provocative title suggesting that the current crisis with democracy should be blamed on the states. The article pointed to a variety of problems that this blog and many others have frequently addressed, including the Electoral College, gerrymandering and vote suppression, and the structure of the Senate.

Despite the article’s title, the problems identified in the article can’t fairly be attributed to the states, although some of them (gerrymandering and vote suppression, certainly) are activities conducted by the states. The very real problems the article enumerates–and a couple it doesn’t–are more properly designated as structural. 

One of the problems with a population that is largely civically-ignorant is the widespread belief that we just need to elect the “right” people who support the “right” policies, and longstanding issues will be resolved. Very few Americans recognize the structural roots of our dysfunctions, and consequently, there are few, if any, efforts to address them.

The linked article identifies several of these structural impediments to a genuinely democratic system–defined as a system truly reflecting the will of the voting populace. I’m well aware that there are a number of scholars and pundits who are unenthusiastic, to say the least, about such a system; they remind us that the Founders were leery of “the people” and created impediments to what they characterized as mass prejudices and popular passions. (Indeed, the Bill of Rights is correctly identified as a counter-majoritarian document.) Most Americans today, however, give at least lip service to the notion that a democratic system, in which elected officials act in ways that reflect the expressed will of the majority, is the ideal.

We don’t currently have such a system, and as the linked article reminds us, the constitutional prerogatives of the states in our federalist system are largely to blame.

Consider all the ways states serve to frustrate the will of the people. First, the Electoral College, which votes state by state, has already installed five presidents whom the voters had rejected nationwide. The many additional near misses make frequent future recurrences a statistical certainty.

The U.S. Senate is even more counter-majoritarian. As of 2023, a majority of the U.S. population is clustered in states that together get only 18 of the 100 senators. The minority get the other 82.

We can blame the Founders for the Electoral College, but the clustering of the population is a more recent demographic reality–and even more damaging. That said, even among the Founders there were those who failed to understand why their “states’ rights” colleagues insisted on the equality of states, which were, after all, artificial creations, rather than the equality of the people who lived in them. As the article reminds us, Federalists like James Madison were bitterly opposed to what they saw as a grossly undemocratic Senate. “Ultimately, however, they accepted the proffered compromise (equally populated House districts, plus states as Senate districts), but only as an unavoidable concession to get the required nine state ratifications.”

One result of this empowerment of states rather than people has been a gradual shift of voting power to rural inhabitants at the expense of urban Americans. (One study found that a rural vote counts one and a third compared to a vote cast by a city dweller.)

As the article reminds us, states have used their prerogatives to suppress votes and–in states that allow initiatives–to overrule the results of popular votes. (In Indiana, which lacks a referendum or initiative, no rational observer would suggest that majority members of our legislature even try to reflect the will of the people.)

Making matters worse, in the U.S., changing structural defects is incredibly difficult.  That’s why the effort to eliminate the Electoral College is through an interstate compact rather than a Constitutional amendment. As the article reminds us, the U.S. Constitution has been described as the hardest in the world to amend.

It requires a two-thirds vote in both chambers of Congress, followed by ratification by three-quarters of the state legislatures (or a constitutional convention process that has never been used).

Winning a two-thirds vote in the already counter-majoritarian Senate is hard enough, but ratification by the states can be harder still. Only recently, states that represented just 22 percent of the U.S. population were able to block the Equal Rights Amendment, against the wishes of states representing the other 78 percent.

If and when we emerge from our current descent into fascism and autocracy, we need to address the structural issues that have facilitated that descent–including a thorough revamping of the Supreme Court.

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That Electoral College

There’s been no lack of political commentary as the Presidential campaign has heated up, much of it thoughtful (and lots of it not), but I was struck with a point made in the Bulwark–a point about the systemic, structural issues that so often muffle or stymie the electoral voice of We the People.

In a commentary on the competing theories of the two campaigns, Jonathan Van Last noted that

Trump is running to get to 47 percent. Harris is running to get to 52 percent.

But there’s something deeper going on here.

The reason Trump is aiming for 47 percent is because the Electoral College makes minority rule possible for the rural party. Which incentivizes the rural party to be insular and to focus on energizing—not expanding—its coalition.

By disadvantaging the urban party, the Electoral College incentivizes it to broaden its coalition. Which means that the Democratic party of this moment must be constantly seeking to expand its reach and bring in new constituencies if it is to have a chance at holding executive power.

In other words: The Electoral College distorts the character of our parties, nudging one of them to be a majority-seeking organism and the other to be a base-pleasing organism. The character of our two parties today flows from the system architecture used to allocate power.

Which explains why Trump’s campaign is focused on maneuvering to win the Electoral College, not on trying to build a national majority. Trump doesn’t think he needs to expand his base, despite the fact that it is a minority of American voters. He just needs to energize them. America’s systemic “allocation of power” protects government by the minority. That’s what allowed Donald J. Trump to “win” the Presidency while losing the popular vote by some three million votes.

The Electoral College substantially advantages white rural voters. Research suggests that every rural vote is worth one and a third of every urban vote. Small states already exert disproportionate power by virtue of the fact that every state–no matter how thinly or densely populated–has two Senators. This system adds to that undemocratic advantage.

Trump likes to claim that our elections are rigged. They are–but thanks to the Electoral College and “winner take all” state election laws–they’re rigged in ways that unfairly benefit him. As legal scholars have reminded us, no other advanced democracy in the world uses anything like the Electoral College. 

It isn’t just the existence of the College–there’s also the way states implement it.

If we fall short in the current effort to neuter the Electoral College with the Popular Vote Compact, we should mount a national effort to address a less-understood aspect of it’s unfairness: statewide winner-take-all laws. Under these laws (which states adopted to gain political advantage in the nation’s early years, even though it was never suggested by the Founders) most states award all their electors to the candidate with the most popular votes in their state.

That erases all the voters in that state who didn’t vote for the winning candidate. Even if only 50.1% of voters in a state vote for candidate A, the 49.9% of voters who opted for candidate B are unrepresented–all of that state’s Electoral College votes will be cast for candidate A.

It would be far fairer to award Electoral votes proportionally. If 60% of the votes are cast for candidate A, candidate A should get 60% of the state’s electoral votes–not 100%. People in the political minority in a state would suddenly have an incentive to vote–an incentive that doesn’t exist now. Today, absent a “wave” election, a presidential vote by a Democrat in Indiana or a Republican in California simply doesn’t count.

Think about it.

Today, 48 states use winner-take-all. That’s why most are considered comfortably safe for one party or the other.  That “safety” leads to the current disenfranchisement of voters in states like Indiana. The only states that matter to either party in a national election are the so-called “battleground” states — especially bigger ones like Pennsylvania, where a swing of a few thousand or even a few hundred votes can shift the entire pot of electors from one candidate to the other. We saw this in 2016, where Trump’s incredibly thin wins in three states (just under 80,000 votes in total over the three states) gave him the White House.

If newly hopeful Democrats can produce a “wave election” in 2024–if they can manage a trifecta at the national level–this systemic unfairness can be changed. The John Lewis Act can be passed. Gerrymandering can be outlawed. Winner-take-all laws can be addressed.

If enough of us vote Blue, we can restore small-d democratic accountability.

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A Concise Diagnosis

In an aside in a recent column about the January 6th hearings, Jennifer Rubin really summed up the current crisis (or more accurately, crises) in American governance.

Trump utterly failed the country; his successor is stymied by a radicalized opposition determined to see him fail. The Senate is gridlocked by a minority party wielding the filibuster to, among other things, preserve voter suppression and subversion laws. The Supreme Court has been overtaken by rank, radical partisans whose decisions cannot be defended on the merits and whose public utterances and tone lack any semblance of “judicial temperament.” We seem stuck because structural advantages for the minority (the Senate, the electoral college, the right-wing Supreme Court) make real reform impossible.

Rubin’s main thrust was the meaning of the very real heroism displayed by poll workers Ruby Freeman and Shaye Moss. (The column was written before the even more impressive bravery displayed by Cassidy Hutchinson this week.)

Unlike a number of the witnesses called by the committee, these two women–mother and daughter–weren’t high-ranking members of the administration or Department of Justice, people who might lose a current job but would have little trouble finding new ones. Freeman and Share are ordinary citizens who were doing some of the low-paid jobs essential to the operation of democratic elections. Rubin is certainly correct in lauding the courage they displayed both in doing those jobs accurately and in testifying; her point was that they served the country just as surely as our military does, and that we need civilians “like Ruby Freeman and Shaye Moss in public life if we are to muddle through a dangerous and disturbing period in our history.”

I don’t disagree, but I remain fixated on the quoted paragraph, because it succinctly sums up the challenges we currently face–and their magnitude.

I’ve written several times about the filibuster, and how its current use differs substantially from its historic one. The wrongheaded protection of what the filibuster has become allows a minority of lawmakers– who have been elected by a minority of voters– to veto the demonstrable will of the great majority of American citizens.

I need not reiterate the evidence showing how drastically the current Supreme Court has deviated from what was thought to be settled jurisprudence. To use a term beloved by a former vice-presidential candidate, the Court’s majority has “gone rogue.” To the extent that Americans were relying on the judiciary to protect fundamental rights, the Court’s current majority has signaled repeatedly that such reliance is misplaced–at least, so long as that majority fancies itself a religious tribunal rather than a court of law  bound by precedent and serving a theologically and ideologically diverse population.

In the final sentence of that quoted paragraph, Rubin alludes to what has become my most pressing–and depressing– concern: the obsolescence of much of America’s electoral and governing systems.

I doubt we can ever do anything about the fact that electing two senators from every state, irrespective of massive disproportions in population, means that very soon 70% of the Senate will represent 30% of the population. So long as our rogue court continues to protect partisan gerrymandering, lawmakers in both houses will continue to be answerable primarily–indeed, overwhelmingly– to rural Americans. The difficulty of amending the Constitution means we are probably saddled with the Electoral College for the foreseeable future–I don’t hold out much hope that the National Popular Vote Compact will be ratified by states having the necessary 270 electoral votes. (I would love to be wrong!)

The only remedy I can see would be a massive turnout in November repudiating the GOP –turnout large enough to allow Democrats  to get rid of the filibuster and pass a number of remedial measures–most importantly, the voting rights act. That law  would–among other salutary consequences– outlaw gerrymandering. Congress could also add Justices to the Court, diluting the power of the Court’s radical theocrats.

Are the Democrats perfect? Certainly not. But they’e a thousand times saner than the cult that is today’s GOP. If that cult loses badly enough, it will either be reformed from within, by genuine conservatives like Adam Kitzinger and Liz Cheney, or go the way of the Whigs.

Either way, We the People could then go back to arguing over our policy differences, rather than the survival of the republic.

In a very real way, Rubin was right: America’s future depends on ordinary citizens–those who do their jobs, and especially those who cast their votes to rescue the Constitution and Bill of Rights from the autocrats and theocrats. I’m clinging by my fingernails to the hope that there are enough of those citizens…

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Another Reason To Get Rid Of The Electoral College

A few days ago, Heather Cox Richardson–a historian who writes Substack’s popular “Letters from an American”–reported on several aspects of the Trump coup effort. Among the various efforts she itemized was the following

Over the past several days, news has broken that lawmakers or partisan officials in various states forged documents claiming that Trump won the 2020 election. This links them to the insurrection; as conservative editor Bill Kristol of The Bulwark notes, false electoral counts were part of Trump’s plan to get then–Vice President Mike Pence to refuse to count a number of Biden’s electoral votes on the grounds that the states had sent in conflicting ballots.

Interestingly, on December 17, 2021, White House press secretary Kayleigh McEnany told Fox News Channel personality Sean Hannity that in four states there were an “alternate slate of electors voted upon that Congress will decide in January.” McEnany talked to the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol yesterday.

Over the past few election cycles, the history and operation of the Electoral College has come under increasing scrutiny. And the more closely this odd element of our electoral process is examined, the more anti-democratic and positively dangerous it looks.

Whether, as several constitutional scholars insist, the Electoral College was a concession to the slave states, or as its defenders contend, it was an effort to give added electoral heft to smaller states–it  It currently undermines democracy and–as Richardson’s report illustrates–facilitates the efforts of those who would overturn the will of American voters.

Structurally, there is a great deal wrong with the Electoral College. For one thing, it substantially advantages white rural voters. Research suggests that–thanks to the current operation of the College– every rural vote is worth one and a third of every urban vote. Small states already have a significant advantage by virtue of the fact that every state–no matter how thinly or densely populated–has two Senators.

No other advanced democracy in the world uses anything like the Electoral College (and as political scientists have noted, there are good reasons for that). And for those who fashion themselves as “originalists,” it’s worth pointing out that our current version of the Electoral College is dramatically different from the mechanism as it was originally conceived and even as it was later amended.

According to law professor Edward Foley, who wrote a book on the subject, the changes made to the College by the Twelfth Amendment in 1804 rested on the assumption that the candidate who won a majority of the popular vote would be elected. Those who crafted the Amendment failed to foresee the emergence of third party candidates whose presence on the ballot often means that the winner of a given state doesn’t win a majority, but a plurality of the vote.

These issues aside, the main problem with the Electoral College today isn’t even the  undemocratic and disproportionate power it gives rural voters and smaller states. It’s the statewide winner-take-all laws, under which  states award all their electors to the candidate with the most popular votes in their state– erasing all the voters in that state who didn’t vote for the winning candidate.

Forty-eight states have winner-take-all rules. As a result, most are “safe” for one party. The only states that really matter in any given federal election are “battleground” states — especially bigger ones like Florida and Pennsylvania, where a swing of a few thousand or even a few hundred votes can shift the entire pot of electors from one candidate to the other.

Winner-take-all has an even more pernicious effect–it disincentivizes voting by people who are in their state’s political minority. If your state is red and you are blue, or vice-versa, it’s easy to convince yourself your Presidential vote is meaningless, because it is.

Winner take all rules are why Democratic votes for President simply don’t count in Indiana and Republican votes for President don’t count in New York. Even if the margin is incredibly thin, the candidate who comes out on top gets all of that state’s electoral votes. If the votes were apportioned instead—if a winner of 51% of the popular vote got 51% of the electoral vote, and the candidate who got 49% got 49%, it wouldn’t just be fairer. It would encourage voters who support the “other” party in reliably red or blue states to vote, because–suddenly– that vote would count.

Joe Biden had to win the popular vote by five percentage points or more — by more than seven million votes — to insure his win in the 2020 election. That’s not only an unfair and undemocratic burden–it’s insane.

Now we learn that–in addition to its multiple anti-democratic effects–the College facilitates cheating. It really needs to go.

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Fix It–Or Forget It?

Heather Cox Richardson recently brought her historian’s perspective to what she suggested were signs of civil discord–even, potentially, civil war. They included a speech by GOP Representative Madison Cawthorn of North Carolina, in which he insisted that the January 6 rioters are being held as “political hostages.”  Evidently, someone in the audience asked him “When are you going to call us to Washington again?” (I found the “again” rather incriminating…) Cawthorn, a member of the GOP’s growing lunatic caucus, took the bait, saying“We are actively working on that one…. We have a few plans in motion that I can’t make public right now.”

Among other alarming remarks he made was his declaration that “The Second Amendment was written so that we can fight against tyranny.” (Those guns really going to win the day against government tanks and drones, Madison?)

Incredible as it may seem, right wing figures are calling for civil war.

Richardson also quoted one Steve Lynch, a candidate for Northampton County executive, for the following “advice:” “Forget going into these school boards with freaking data. You go into these school boards to remove them. I’m going in with 20 strong men and I’m gonna give them an option—they can leave or they can be removed.”

Also to be filed under “chilling” was a placard held by a man who attended a Santa Monica protest leading up to a vote on a mask mandate; the sign had  the names and home addresses of each Los Angeles City Council member and threatened that protesters would visit the homes of those who voted for the mandate. If it passed, the sign warned, “Civil War is coming! Get your guns!”

A paper recently published by The Brookings Institution actually considered arguments for and against the likelihood of an upcoming civil war–an analysis that would have seemed preposterous not so long ago. (The authors ultimately decided such a war is unlikely–but  in the wake of the January 6th insurrection, it isn’t beyond the realm of possibility.)

In the Washington Post, Greg Sargent considered the “fixes” that need to be made to the Electoral College count in order to avoid a future election being stolen. As he pointed out, the Act’s language, which sets the process for Congress to count presidential electoral votes, is vague and prone to abuse.

The ECA sets a “safe harbor” deadline: If a state certifies its electors six days before the electoral college meets, Congress must count them, but it can technically throw out a particular electoral vote if it decides it was not “regularly given.” This phrase is supposed to indicate serious corruption or illegality but isn’t defined, leaving it open to bad-faith congressional objections to those electors.
 
The ECA is supposed to provide for resolution of resulting disputes in Congress over any state’s slate of electors. If a single senator and House member objects to a slate, each chamber must vote on them. If both chambers agree to invalidate the slate, they don’t get counted.

There are several main ways this can result in stolen elections. One is if a state sends one slate of electors — a valid one reflecting the state’s popular vote — and both chambers decline to count them, based on a bogus claim that they were not “regularly given.”
 

Given that the current iteration of the Republican Party should probably be renamed “Bogus Claim R Us,” this is not a fanciful scenario. As Sargent reminds us, the scenarios he enumerates are exactly the ones Trump pressured GOP state legislatures to adopt– and many Republican members of Congress raised obviously bogus objections to acceptance of the correct slates.

Meanwhile, “audits” in Arizona and elsewhere are dry runs at manufacturing pretexts to raise sufficient doubt about a state’s popular vote to trigger such scenarios.

I know I harp on gerrymandering and the media environment, but before the advent of computers made it possible to micro-target voters and social media made it possible to shut out voices of reason, the parties generally steered clear of nominating the sorts of lunatics who are driving the current political debates.

Most conversations about the Constitution center on the rights protected by the Bill of Rights. But the Constitution also prescribes mechanisms for electing and governing–and if we don’t modernize several of those mechanisms, we’ll end up losing the Bill of Rights.

We need to fix it–or just forget about the American Experiment.

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