Thursday, September 13, 2012

Constitutional Goof

Ah, this one is unfortunately completely unable to be fixed, but it certainly should be.

We see today that three GOP (potential) electors are threatening (or perhaps considering is the right word?) a vote for Ron Paul instead of Mitt Romney should Romney win their states -- Nevada, Iowa, and Texas. The problem of "faithless" electors is really just a Constitutional flaw. The system, as it evolved almost immediately after the Constitution was adopted, made electors automatic agents of their states, whose job became only to record the result of what happened. Within the system as practiced, there's no room for electors to have any independent judgement at all. Indeed, if we wanted to rewrite our rulebook to make it conform to what we actually do, in order to avoid "Constitutional hardball" in which the parties have a destabilizing incentive to exploit areas in which the written Constitution doesn't fully conform to our accepted norms, then I'd certainly support replacing actual electors with simple electoral votes. There's no good reason at all for the two-step process in which we actually elect humans who then cast electoral votes; we would be better off simply giving the electoral votes to whoever won them based on that state's rules.

Alas, as I said, this one will not be fixed. It would take a Constitutional amendment, and given how little support there is for the electoral college method of choosing presidents, there's just no realistic chance that everyone would put aside their differences and pass a minor fix. Nor is it plausible that anyone would care enough to push the idea. I suppose if we ever have a near or actual disaster in which the "correct" candidate loses or almost loses because of faithless electors, that might do the trick, but probably not; after all, the party helped by it would suddenly discover all the virtues of elector autonomy.

My guess is that in the event, this isn't going to become a problem; if the election is close enough, Ron Paul will personally appeal to these people, and they'll stay on board. So it's fun to speculate about, but the far more likely weird scenario is that we'll get a regular electoral college tie (something that couldn't happen if the District was admitted as a state but the House remained at 435, by the way). So it's not as if it's a desperately needed Constitutional fix. But it is a flaw, and it's too bad it can't be corrected.


  1. Beyond being a 'constitutional goof,' I'd suggest this is evidence of a Republican Party beginning to tear itself apart.

  2. Huh? Letting in DC as a state and keeping 435 doesn't do anything to the EC tie scenario. They already count for Prez, hence the 538.

    What it does is make a tie in the subsequent vote in the House by state delegations more unlikely. But, it's also inconsequential. The top three EC vote-getters are eligible for the vote in the House. However, it requires a majority to win, so 26 state delegations are required to win. So, expanding to 51 wouldn't change that 26 is still required for the majority, and ties in the House vote (with 50 states) are possible, but if and only if no candidate has gotten to 26. So, the tie isn't the thing that matters, it's the majority requirement.

    1. Actually, it would fix the problem. The total electoral votes are equal to the total members of Congress, at the moment plus three special votes for DC. If you admitted DC as a state (one Rep and two Senators) and then kept the House at 435, the total electoral votes would be 537 (435 House members plus 102 Senators) rather than 538 (435 House members, 100 Senators, and 3 specially provided votes for the District). With 537 total votes, a tie is impossible as fractional electoral votes are not allowed.

    2. I should have said, "The total electoral votes are equal to the total members of Congress, plus (for the time being) three special votes for DC."

    3. I think he's saying that if DC became a state and the House remained at 435, the 435 would be reallocated to include DC and the Electoral College total would return to 535 rather than including 3 extra for a nonstate.

    4. Oh, OK.
      I was thinking of the House vote problem, mostly, and I made the (now obvious) mistake of forgetting that keeping the House at 435 would necessitate "taking away" DC's House elector.

      Thanks for the correction.

  3. What if there were an actual three-party race in which no candidate had a majority? The individual electors might matter, and a decision by the College would have more legitimacy than a decision by the House.

    1. What makes THAT interesting is that the electors only vote once, so any horse-trading would depend on being willing to trust that another candidate's elector would actually be willing to vote for someone else. Once you get to the House, you have as many rounds of voting as necessary to come up with a winner, with the prospect of the Senate choosing the VP - who would become Acting President at noon on January 20 - looming over the proceedings. (Since the Senate chooses from the top 2 VP candidates, there's no chance of no one getting a majority the way there is in the House.)

      Plus, of course, you've got some states that have adopted measures intended to keep electors from voting for anyone other than tha candidate they're pledged to.

  4. The Electoral College should not be reformed, it should be replaced. We've been taught that it was installed to prevent the unwashed masses from taking over, or that it was to resolve some small state-big state struggle. In reality, the original debates make clear the only motivation was to preserve slavery from those ornery liberals who might one day try to abolish it.

  5. Prof Bernstein--

    My understanding of the EC is that was another one of those anti-tyrannny checks-&-balances the framers believed might stop the election of a charismatic, but otherwise unsuitable leader. In effect, the EC takes one step back from the popular election of a Caesar.

    Probably it made sense in a nation of ten million. Perhaps it makes less sense now. Has the EC outlived its original function and purpose? Rather than trying to fix the mechanism, perhaps it should be eliminated?

    Would appreciate reading your thoughts.

    1. The current system does not provide some kind of check on the "mobs." There have been 22,453 electoral votes cast since presidential elections became competitive (in 1796), and only 17 have been cast for someone other than the candidate nominated by the elector's own political party. 1796 remains the only instance when the elector might have thought, at the time he voted, that his vote might affect the national outcome. Since 1796, the Electoral College has had the form, but not the substance, of the deliberative body envisioned by the Founders. The electors now are dedicated party activists of the winning party who meet briefly in mid-December to cast their overwhelmingly totally predictable rubberstamped votes.

      If a Democratic presidential candidate receives the most votes, the state's dedicated Democratic party activists who have been chosen as its slate of electors become the Electoral College voting bloc. If a Republican presidential candidate receives the most votes, the state's dedicated Republican party activists who have been chosen as its slate of electors become the Electoral College voting bloc. The winner of the presidential election is the candidate who collects 270 votes from Electoral College voters from among the winning party's dedicated activists.

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

  6. I'd prefer reforming the electoral college to make the electors MORE faithless. The whole point of the EC (as several posters suggest upthread) was to provide a barrier so that the President was not directly elected. Obviously, this has failed. I think a good reform - and not one requiring an amendment - would be to hold the primaries after the selection of the electors.

  7. I'll go along with "Patrick Henry" here -- it's INNATELY undemocratic, but the Electoral College is worth preserving as a potential barrier to the election of a Caesar-type.

    As for the less dramatic defections of Ron Paul supporters you suggest, my understanding is that when you vote for a Presidential candidate you are essentially voting for a slate of delegates who will be your states electoral voters. I.e., there are say 34 people nominated by the state Democratic Party who will vote for the Democratic candidate in the Electoral College if the Democrats win the state, 34 different people nominated by the Republicans, 34 people people nominated by the Greens, and so on. If some members of the Republican EC slate announce in advance that they aren't going to vote for Mitt Romney if he carries their state ... that's a problem for the state Republican Party to solve (perhaps by picking EC voters AFTER the election?), not a Federal problem. Aren't Republicans the folks who claim local solutions work better than Federal ones?

  8. I still find it weird that the EC wasn't abolished after 2000. We have in fact amended the Constitution in significant ways many times in our history. It isn't theoretically possible that we could do it again. Of course the Republican party has a strong incentive to keep it so they have a chance to win the Presidency while losing the popular vote which could be their only way to get it in the future if the current demographic changes continue and the GOP doesn't become more moderate.

    1. To abolish the Electoral College would need a constitutional amendment, and could be stopped by states with as little as 3% of the U.S. population.

  9. Presidential elections don't have to (even possibly) be this way.

    The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

    Every vote, everywhere, would be politically relevant and equal in presidential elections. No more distorting and divisive red and blue state maps. There would no longer be a handful of 'battleground' states where voters and policies are more important than those of the voters in more than 3/4ths of the states that now are just 'spectators' and ignored after the conventions.

    When the bill is enacted by states possessing a majority of the electoral votes– enough electoral votes to elect a President (270 of 538), all the electoral votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states and DC.

    The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for President. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

    In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%,, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%. Americans believe that the candidate who receives the most votes should win.

    The bill has passed 31 state legislative chambers in 21 states. The bill has been enacted by 9 jurisdictions possessing 132 electoral votes - 49% of the 270 necessary to go into effect.

    Follow National Popular Vote on Facebook via NationalPopularVoteInc

    1. I'm all for this in general, but how would it work if the vote was within the margin that called for a recount?

  10. The candidate with the most popular votes in all 50 states and DC would get the 270+ electoral votes from the enacting states. That majority of electoral votes guarantees the candidate with the most popular votes in all 50 states and DC wins the presidency.

    The 2000 presidential election was an artificial crisis created because of Bush's lead of 537 popular votes in Florida. Gore's nationwide lead was 537,179 popular votes (1,000 times larger). Given the miniscule number of votes that are changed by a typical statewide recount (averaging only 274 votes); no one would have requested a recount or disputed the results in 2000 if the national popular vote had controlled the outcome. Indeed, no one (except perhaps almanac writers and trivia buffs) would have cared that one of the candidates happened to have a 537-vote margin in Florida.

    Recounts are far more likely in the current system of state-by-state winner-take-all methods.

    The possibility of recounts should not even be a consideration in debating the merits of a national popular vote. No one has ever suggested that the possibility of a recount constitutes a valid reason why state governors or U.S. Senators, for example, should not be elected by a popular vote.

    The question of recounts comes to mind in connection with presidential elections only because the current system so frequently creates artificial crises and unnecessary disputes.

    We do and would vote state by state. Each state manages its own election and is prepared to conduct a recount.

    The state-by-state winner-take-all system is not a firewall, but instead causes unnecessary fires.

    Given that there is a recount only once in about 160 statewide elections, and given there is a presidential election once every four years, one would expect a recount about once in 640 years with the National Popular Vote. The actual probability of a close national election would be even less than that because recounts are less likely with larger pools of votes.

    The average change in the margin of victory as a result of a statewide recount was a mere 296 votes in a 10-year study of 2,884 elections.

    No recount would have been warranted in any of the nation’s 56 previous presidential elections if the outcome had been based on the nationwide count.

    The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December. With both the current system and the National Popular Vote, all counting, recounting, and judicial proceedings must be conducted so as to reach a "final determination" prior to the meeting of the Electoral College.


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