PPFA Evaluates the Electoral College (Part 2)

On Monday, Part 1 of this miniseries offered an overview of the Electoral College. Between the one-year anniversary of President Trump’s electoral victory and Professor Lawrence Lessig’s budding lawsuit against our method of choosing the president, it felt like a great time for PPFA to get into it.

I finished Part 1 with a question: Is it a good system?

The answer depends on what one thinks the purpose of the Electoral College is, or at least what it should be. Is its purpose to confirm the will of the people? Or is it to serve as a check against the people’s power? Or something else entirely?

Because if it’s to confirm what the people want, we might have a problem…

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Part 2: The Case Against the Electoral College

Even before Lessig’s potential challenge, many liberals and Democrats had already pushed for a reevaluation of the Electoral College. They say the victories of Republicans Bush and Trump are symptoms of systemic problems with the college, arguing: A) It does not give voters an equal voice when choosing their president; and B) Further evidence of “A,” it favors the Republican Party through giving rural and red state voters disproportionate power compared to urban and blue state ones, an inherently unfair and undemocratic electoral process.

This argument is not baseless. Republicans do, in fact, enjoy a current advantage under the Electoral College. Let’s be clear: this is why Democrats want to change the system and Republicans want to defend it. Were the shoe on the other foot, so, too, would the parties and their respective media outlets be. Though each side bases its argument on what it considers a cherished American ideal — Democrats say all votes should be equally counted, while Republicans say we should respect our founding fathers and their  Constitution that has served us well — we know what really drives them: exploiting any advantage they can get.

Regarding this Republican advantage and other faults of the Electoral College, Lessig and other Democrats point out the following:

1. The very fact that it is not the American people but “electors” chosen by party leaders that elect the President sounds more oligarchic than democratic.
2. The winner-take-all system used by 48 states disregards the vote of millions of Americans. A Republican’s vote in California (of which there were nearly five million) is not considered in the Electoral College. Same with a Democrat in Oklahoma. Meanwhile, votes from citizens in about a dozen swing states are worth a great deal. This gives some Americans more power at the ballot box than others. Hence, all votes aren’t treated equally, neither by the electors that cast ballots nor the presidential candidates that give more attention to certain states.
3. Even in the swing states, the candidate that wins a plurality of the vote gets all the votes. In the end, just like in a non-swing state, the large percentage of the state that voted for someone else does not have their votes counted in the Electoral College. Thus, no matter the state, “With a winner-take-all,” Lessig believes, “Most of America is ignored.”
4. And since most Americans feel ignored and that their vote doesn’t make a difference, the motivation to vote, or to educate one’s self before that vote, drops. The natural result is a more apathetic citizenry, especially from moderate potential voters. Meanwhile, the partisans who think every election determines the very fate of freedom are the ones left making decisions in our ballot boxes and therefore our elected positions. Partisan print, tv, and radio media then tailor themselves to the only people left paying attention — the ideologues. A feedback loop is created.
5. Now let’s get into that Republican advantage. Since every state, no matter how less populated than the bigger states, gets at least three electoral votes, the relative electoral power of states is not as proportional to their population as one might assume. Wyoming’s population of 586,000 nets them the minimum three electoral votes (one electoral vote per 195,000 residents), while California’s 39,250,000 earns them 55 (one electoral vote per 714,000 residents). That means a Wyomingite’s vote counts 3.6 times more for the presidency than a Californian’s. All the smaller states enjoy this advantage. Slate shaded a useful map to reflect that:

Slate’s numbers are more appropriate, as it uses only the voting eligible population, which is the number the Constitution instructs us to use to determine a state’s electoral power. Still, the results are similar: “The average electoral vote,” Slate tells us, “represents 436,000 people, but . . . the states with the fewest people per electoral vote, and therefore the highest ‘vote power,’ are Wyoming, Vermont, and North Dakota. In Wyoming, there are 143,000 people for each of its three electoral votes. The states with the weakest votes are New York, Florida, and California. These states each have around 500,000 people for each electoral vote.”

Put another way, if we wanted to keep Wyoming at its minimal three electoral votes but also give Californians an equal say in the Electoral College, we’d have to make it so California got one electoral vote for every 143,000 eligible voters it has. For its 25 million eligible voters, instead of 55 electoral votes, California would then have — get this — 175. And again, that’s just so their vote counts as much as much as a voter’s in Wyoming already does.

Now, all states would see an uptick to match Wyoming’s power, but looking at the map we see the darker-shaded, more sparsely populated states are predominantly Republican, the party that has the overwhelming support of rural voters. The only strong Democratic states with above-average electoral power are Vermont and Delaware, while most Republican states carry above-average electoral sway.[1] The Republican advantage is real.

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The most popular replacement for the Electoral College is a national popular vote, which proponents say would limit disenfranchisement and encourage more people to participate in the process and ensure not only that all votes are counted equally, but that the will of the people is reflected. Not surprisingly, polls show that a majority of Americans have long wanted a majority of Americans to have the ability to choose their president.

Lessig and his backers, however, are not promoting such a Constitutional overhaul. He’s not pushing for a Constitutional Convention or a revision of the founders’ original vision. Instead, he wants to modify what the Electoral College has become but wasn’t always. Indeed, he reminds us the method for allocating electors was not prescribed in the Constitution. Forty-eight states eventually took it upon themselves to become winner-take-all in the Electoral College in order to attract more attention and have more political power. Once 48 states converted to that, this advantage was nullified. Lessig suggests moving away from this negated advantage that ignores millions of voters and toward something more proportional; if a state’s vote is close to 50-50, then its electoral allocation should be close to 50-50 as well.

The crux of Lessig’s lawsuit is that this system treats all citizens’ votes unequally, but more political Democrats go one step further and point out that the electorate with less relative voting power — city dwellers — are not only disproportionately Democratic, but disproportionately black as well. This country, the argument goes, is therefore continuing to disenfranchise the African-American vote; it’s just the latest tapering from full disenfranchisement (pre-Civil War) to Jim Crow (the century after the Civil War) to now having minority votes marginalized in the Electoral College. Indeed, some argue that much of the impetus behind creating the Electoral College, to say nothing of equalizing states’ power in the Senate, was to protect rural, southern slave states from being overwhelmed by more densely populated northern ones; the Three-Fifth Compromise even allowed southern states to count slaves as three-fifths of a voter when determining representative power in the House even though those slaves did not have voting rights.

Lessig argues that this marginalization, to say nothing of ignoring the political minority in safely Republican or Democratic states, is in direct violation of the Fourteenth Amendment, the second section of which essentially protects a “one person, one vote” premise in American democracy. It’s part of what’s commonly known as the Equal Protection Clause, which mandates, among other protections, that all American citizens are treated equally the law, including their voting rights.[2] It can be a disturbing realization that the Constitution, including the Electoral College, was codified in part by a couple dozen slave owners who now, from the grave, continue to discriminate against blacks.

Ultimately the current system is undemocratic, unfair, discouraging, and possibly even racist. In other words:

These are damning arguments. Surely the Electoral College needs a tweak, if not a drastic overhaul. Perhaps it should be eliminated altogether.

Or perhaps not. See you next time for Part 3.

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FOOTNOTE:

[1]Slate also concludes a similar effect on Congress: “Because the Electoral College mirrors the allocation of representatives in Congress, this map also charts legislative power; 143,000 people in Wyoming have the same number of legislators in Congress as 500,000 in New York.” A double-advantage for smaller, predominantly Republican states.

[2]The courts have already used the Equal Protection Clause to strike down particularly egregious gerrymandering and the Florida recount in 2000.