Saturday, February 11, 2017

Is the Electoral College Un-Democratic? You Bet. Unfair? Nope.

The Electoral College was the subject of a "pro" and "con" debate between two New Jersey Star-Ledger guest columnists. I will focus on the argument against by Kean University assistant professor Frank Argote-Freyre, which he titled “Outdated Institution.” Argote-Freyre writes:


[The Electoral College] is fundamentally unfair and undemocratic.
It makes a mockery of the one person, one vote principle. Under it, every vote is not equal.


I left these comments, edited for clarity:


Undemocratic? If by democratic one means pure, or what I call fundamentalist, democracy, it certainly is. And that’s a good thing. Fundamentalist democracy is as un-American as communism, Nazism, and slavery—that is, it is a manifestation of totalitarianism. Fundamentalist democracy is absolute majority rule, whereby the majority can vote to execute dissenters, as in Ancient Greece, or persecute minorities, as some Muslim democracies do to non-Muslims, or enslave a minority, as in the pre-Civil War American South, or control the life of or seize the property of one’s neighbors, as in the modern regulatory welfare state.


If by democracy one means the process by which free people control their governance in a constitutional republic—a process consistent with a free nation based on fundamental individual rights—the Electoral College is in no way unfair. Every voter in every state counts toward choosing her respective state’s electors. Within the context of a constitutional republic's democratic process, there is nothing inherently unfair about the Electoral College.


There is nothing sacred about a national popular vote—not in a constitutional republic based on rule of law and limited, individual rights-protecting government; not in a United States of America. This does not mean the popular vote shouldn’t matter. But there are better ways to measure the popular vote—like, on the state level. That’s what the Electoral College system measures. Every elector is backed by popular vote at the state level.


The national popular vote is irrelevant—and logically so—given the wide diversity of interests and concerns among the people in the states. In fact, if you take out California, by far the biggest state, Trump won the national popular vote by 1.5 million (at last count). California went for Clinton by a 4.3 million vote margin. That’s a lopsided 62-32%, way out of touch with the national electoral mainstream but enough to swing the national popular vote totals to Clinton. If you take out New York, another big state with a similarly lopsided Clinton margin, Trump won the other 48 states by 3.2 million. There were no large states that went for Trump by anything close to the CA-NY margins. Even reliably Republican Texas, the second biggest state, only gave Trump a 9% point margin. I mention this only so one can easily see why the national totals are irrelevant.


In other words, Trump did win the popular vote—30 times; that is, in 30 states totalling 306 electoral votes. Clinton won 21 times (including the District of Columbia). The fact is, every voter has the same equal, albeit effectively meaningless, choice; each votes his choice as to which candidate to assign his respective state’s electoral votes. In fact, depending on state-level rather than national-level popular votes to choose a president, each individual voter has more influence because she is one part of a smaller voter pie.


Though important, the vote is secondary. The primary concern of the Founder Fathers was to protect the rights of the individual to live and work according to his own judgement and conscience without infringement by King, cleric, elected legislature, et al. The right to vote was not primary. It couldn't be, as the Founders rightly considered individual rights to precede government. Since “to secure these rights, governments are instituted among men,” the issue of voting only arises with the creation of a government.


Notice the hierarchy established in the U.S. Constitution's philosophic blueprint, the Declaration of Independence. First, it is established that man has certain unalienable individual rights—life, liberty, and the pursuit of happiness. Then, “to secure these rights, governments are instituted among men.” Only after establishing the imperative to recognize rights and the need for rights-protecting government does the issue of voting arise—the “consent of the governed” clause pertaining to the government’s “just powers.” The right to vote is a logical extension of our fundamental rights as human beings. It is not one of them.


In other words, the Founders didn’t intend to create an absolute democracy, in which the vote is the be-all and end-all of liberty (The term “democracy” doesn’t even appear in the Declaration or the Constitution). This is important when considering the process by which our votes choose our political leaders. One of the areas in which the Founders most showed their brilliance is in the area of structuring government so as to distribute political power—the power of the gun—in a way that minimizes the chance of an unhealthy concentration of power and thus the emergence of tyranny. What kind of tyranny? Not just monarchy, but all kinds of tyranny, including the tyranny of the majority. It’s called the separation (or balance) of powers, also referred to as checks and balances.


Enter the Electoral College. The Electoral College must be understood within the context of the separation of powers, a device for protecting individual rights. By giving the states, through their elected legislatures, the constitutional responsibility to pick the president through the Electors they appoint, the states can act as a check on the power of the federal executive branch, as well as a check on each other.


The state legislatures can step in and override the popular vote for a variety of reasons. For example, in the case of an inconclusive vote—e.g. voting machine breakdowns, massive fraud, terrorist attack, etc.—the state legislature can assert its authority to choose the electors and facilitate the smooth completion of the electoral process. In addition, the electors, though morally duty bound to cast their votes for whom they are pledged, can constitutionally change their votes to nullify a popular vote in the unlikely event that an irrational, emotionally charged electorate chooses a demagogue with dictatorial ambitions, or other extreme circumstance. It is entirely within the realm of possibility that the Electoral College process may someday prevent the rise to power of an elected American Hitler or Chavez.*


But the Electoral College does not sidestep “the will of the people,” to use that ridiculous catchphrase (what “will” of which “people?” “The will of the people” is in fact a myth. It rests on the collectivist premise that “the people” is an entity with a will of its own apart from the individuals that comprise it. That’s mysticism, not reality. A better term is, “the will of the victorious electoral faction”). The popular vote does count. The state legislators—to whom Article II assigns the responsibility to choose, “in such Manner as the Legislature there of may direct,” the electorsare themselves elected by popular vote.


The important point is that the Electoral College is part of the checks and balances that prevents tyranny and thus protects our freedom, while also acting as a reliable and efficient means to choose our leaders. The primacy of liberty, not democracy, is the goal of the American republic and the starting point of American politics. America is about liberating each citizen to govern his own life, not give him the power to govern others. The right to vote is not primary. It logically follows from the individual’s inalienable rights to life, liberty, property, and the peaceful, non-predatory pursuit of happiness: That is, the right to have a say in the operation of the government created to protect his fundamental rights—a government constitutionally limited to protecting individual rights.


Judged from the perspective of the primacy of democracy, the Electoral College is, if not undemocratic, certainly less democratic than a direct national popular vote. But judged from the American perspective, the primacy of liberty, there is nothing undemocratic about it. The reactionaries against Americanism have largely succeeded in convincing us that liberty is about having a tiny part of a collective voice in governing other peoples lives. But liberty is not about the vote. It is about barring the majority from interfering in the individual’s right to govern his own life. Don’t let the democracy fundamentalists get their way. They are not champions of individual liberty. Keep the Electoral College. It is, in my view, a valuable and unifying—and quintessentially American—institution. It is a valuable tool for restricting majority rule and protecting our basic freedoms.


* In the leadup to the Electoral College vote on December 19th, 2016, there was a popular campaign to convince the electors not to cast their votes for Donald Trump on the grounds that Trump is unfit to be president, such as that his “impulsive nature would lead the country into another war.” The attempt failed, as expected. In the end, seven electors voted for people other than those they were pledged to, with Trump losing two votes and Clinton losing five, leaving a final tally 304-227 for Trump. The defections went to John Kasich [1], Ron Paul [1], Bernie Sanders [1], Colin Powell [3], and Faith Spotted Eagle [1]. I don’t believe Trump is incompetent or unfit, at least not enough to warrant an electoral college upset of the voters. And he certainly doesn’t rise to the level of a Hitler or Chavez. But it is the job of the Electoral College to consider such issues before voting. While it may seem like a rubber stamp, it is not. It is a real structural bulwark against tyranny.


Related Reading:







Avoid ‘Majority Rule’—Keep the Electoral College in Fact and in Spirit

7 comments:

toto said...

Now, a presidential candidate could lose while winning 78%+ of the popular vote and 39 states.

With the current state-by-state winner-take-all system of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), it could only take winning a bare plurality of popular votes in only the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with less than 22% of the nation's votes!

toto said...

Clinton won the electoral college vote — except for Texas.

toto said...

In 2016, New York state and California Democrats together cast 9.7% of the total national popular vote.

In total New York state and California cast 16% of the total national popular vote

In total, Florida, Texas, and Pennsylvania cast 18% of the total national popular vote.
Trump won those states.

The vote margin in California and New York wouldn't have put Clinton over the top in the popular vote total without the additional 60 million votes she received in other states.

In 2004, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.

New York state and California together cast 15.7% of the national popular vote in 2012.
About 62% Democratic in CA, and 64% in NY.

New York and California have 15.6% of Electoral College votes.

toto said...

Now 48 states have winner-take-all state laws for awarding electoral votes.
2 award one electoral vote to the winner of each congressional district, and two electoral votes statewide.
Neither method is mentioned in the U.S. Constitution.

The electors are and will be dedicated party activist supporters of the winning party’s candidate who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges.

The current system does not provide some kind of check on the "mobs." There have been 23,529 electoral votes cast since presidential elections became competitive (in 1796), and only 24 have been cast in a deviant way, for someone other than the candidate nominated by the elector's own political party (one clear faithless elector, 23 grand-standing votes, and one accidental vote). 1796 remains the only instance when the elector might have thought, at the time he voted, that his vote might affect the national outcome.

States have enacted and can enact laws that guarantee the votes of their presidential electors

The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).

If any candidate wins the popular vote in states with 270 electoral votes, there is no reason to think that the Electoral College would prevent that candidate from being elected President of the United States

toto said...

Trump, November 13, 2016, on “60 Minutes”
“ I would rather see it, where you went with simple votes. You know, you get 100 million votes, and somebody else gets 90 million votes, and you win. There’s a reason for doing this. Because it brings all the states into play.”

In 2012, the night Romney lost, Trump tweeted.
"The phoney electoral college made a laughing stock out of our nation. . . . The electoral college is a disaster for a democracy."

Recent and past presidential candidates who supported direct election of the President in the form of a constitutional amendment, before the National Popular Vote bill was introduced: George H.W. Bush (R-TX-1969), Jimmy Carter (D-GA-1977), Hillary Clinton (D-NY-2001), Bob Dole (R-KS-1969), Michael Dukakis (D-MA), Gerald Ford (R-MI-1969), and Richard Nixon (R-CA-1969).

Recent and past presidential candidates with a public record of support, before November 2016, for the National Popular Vote bill that would guarantee the majority of Electoral College votes and the presidency to the candidate with the most national popular votes: Congressmen John Anderson (R, I –ILL), and Bob Barr (Libertarian- GA), Senator Birch Bayh (D-IN), Senator and Governor Lincoln Chafee (R-I-D, -RI), Governor and former Democratic National Committee Chair Howard Dean (D–VT), U.S. House Speaker Newt Gingrich (R–GA), Senator and Vice President Al Gore (D-TN), Ralph Nader, Governor Martin O’Malley (D-MD), Jill Stein (Green), Congressman Tom Tancredo (R-CO), and Senator Fred Thompson (R–TN).

Newt Gingrich summarized his support for the National Popular Vote bill by saying: “No one should become president of the United States without speaking to the needs and hopes of Americans in all 50 states. … America would be better served with a presidential election process that treated citizens across the country equally. The National Popular Vote bill accomplishes this in a manner consistent with the Constitution and with our fundamental democratic principles.”

toto said...

The National Popular Vote bill is 61% of the way to guaranteeing the majority of Electoral College votes and the presidency in 2020 to the candidate who receives the most popular votes in the country, by changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

All voters would be valued equally in presidential elections, no matter where they live.
Candidates, as in other elections, would allocate their time, money, polling, organizing, and ad buys roughly in proportion to the population

Every vote, everywhere, for every candidate, would be politically relevant and equal in every presidential election.
No more distorting and divisive red and blue state maps of predictable outcomes.
No more handful of 'battleground' states (where the two major political parties happen to have similar levels of support) where voters and policies are more important than those of the voters in 38+ predictable states that have just been 'spectators' and ignored after the conventions.

Michael A. LaFerrara said...

toto:

Thanks for your thoughtful responses.

I don’t want to repeat myself. I will add this point: I disagree that all voters are not “valued equally in presidential elections, no matter where they live.” Every voter in every state has an equal say in shaping their respective state legislatures that control their respective Electors. A direct national popular vote would seriously marginalize these legislatures, which would further concentrate power in the federal government and undermine the balance of power between the states and the federal government. However, I agree with Gingrich that the National Popular Vote Interstate Compact would be consistent with the Constitution and thus with the principle of checks and balances, although such a compact would likely require Congressional approval, according to the League of Women Voters (http://www.lwvvc.org/NPVArgument_con.pdf).

True, under the current system, the relative importance of votes on Presidential Election Day may vary from state to state and from election to election, sometimes favoring the GOP (2000, 2016), sometimes the Democrats (2004--http://principledperspectives.blogspot.com/2017/01/protesting-trump-as-illegitimate-is.html). But so what? The more important point is the presumption of liberty. Which right is more important, the right to vote or the right to freedom of speech? Our individual votes, while symbolically important, are in actuality irrelevant. We can individually have a much more meaningful impact on elections through persuasion based on freedom of speech. When you step into the voting booth, it’s just one essentially meaningless vote. When you speak, share articles and books, leave comments, write letters to the editor or to your congressperson, etc. you can potentially affect a lot of votes.

Ending the Electoral College and moving toward a direct national popular vote would cause elections to break down into rampant factionalism, eliminating any chance of ever getting a clear presidential winner. The Electoral College may not be perfect. But it doesn’t have to be, as long as we remain substantially free. What I’m sure of is that a direct national popular vote model would not work. America is too big and diverse for that.