Second Order Effects Premise of Article:
This article has been updated and another way to at least reduce the likelihood of the Electoral College selecting a different candidate vs. popular vote. The way would be to increase the size of the House of Representative. Please read the new paragraph at the end of this article.
Whenever a Presidential election is won in the Electoral College and the winner doesn’t have the majority of the popular vote there are calls to disband the Electoral College. This has happened five times: 1824, 1876, 1888, 2000, and 2016 in US history. In addition, without the Electoral College it is unlikely that Lincoln would have been elected, that would have really delayed the fight over slavery. While on the face, using the popular vote sounds like the way things should be and many wonder why we have the Electoral College. This Article discusses the reasons for the Electoral College and potential Second Order Effects of moving to a popular vote for the US President.
Discussion:
How does the Electoral College Work?
The number of Electors for a state is the total of the number of Senators and Representatives from that state. In addition, there are three Electors from the District of Columbia, a total of 538 Electors. The smallest states have three electors and the largest state, California, has 55. In almost all states, the winner of the popular vote in that state get all of the electors for that state. There are a couple of states, Maine and Nebraska, that split the electors.
Historically, Why do we have the Electoral College?
1. Prevents a Country Wide Recount
We haven’t seen this in the Federalist Paper, but it is a second order effect. For those of us that remembers trying to recount Florida, imagine trying to do this across the whole country. I don’t think the framers imaged a country with 315M people and the issues that a country wide recount would bring. Given the issues with country wide recount, any system that replaced the Electoral College would have to isolate recounts to no more than a few states.
2. To Limit the Damage a Dishonest Election System can do
Alexander Hamilton in Federalist No. 68 laid out what he believed were the key advantages to the Electoral College. One of those advantages was that the system limited the damage a corrupt state election system. Hamilton explained the election was to take place among all the states, so no corruption in any state could taint “the great body of the people” in their selection. In addition, the electors come directly from the people and them alone for that purpose only, and for that time only. This avoided a party-run legislature, or a permanent body that could be influenced by foreign interests before each election. Again, the principle was to run an election in each state to make it harder for a corrupting agent to significantly effect the outcome.
This happened in the 1860 election, Lincoln received less than 40% of popular vote but the majority of Electoral College. One of the reasons Lincoln’s vote was so low was that six states didn’t have him on the ballet. The malfisents in this case was the southern states
3. To Prevent States with Large Populations from Dominating States with Small Populations (Tyranny of the Majority)
In the beginning of the negotiations over the Constitution the larger states wanted representation based on population. The smaller states were concerned that they would not have a say in the operation/legislation of the central government and wanted equal representation for each state. The compromise was the legislature that we have today, a Senate with equal representation for each state and a house with representation based on population. In The Federalist Papers, James Madison explained his views on the selection of the president and the Constitution. In Federalist No. 39, Madison argued the Constitution was designed to be a mixture of state-based and population-based government. This same representation should be used to elect the US President in the Electoral College.
4. To Induce Southern States to Agree to the Constitution
At times one will hear that the Electoral College is a vestige of slavery and should be abolished. Although one cannot find a reference that says that the Electoral College was connected to Slavery. The connection is one of logic, not of statement. One of the side effects of setting up the Electoral College over selection by popular vote was that it helped entice the southern states to ratify the Constitution. In several places in the proposed US Constitution, representation in the legislature and in selecting the President were based on the population of each state. This had a number of effects:
- The population of a state effected the number of Congressman one has in the House of Representatives;
- The population also effects that number of Electors that a state has in the Electoral College;
- Nearly half the population of the south were slaves, if they were not counted, the southern states would have significantly less representation and would not ratify the Constitution
In order to entice the southern slave states to agree to the Constitution, the northern states had to compromise. The northerners wanted the southerners to free their slaves, so they didn’t want to count slaves toward the population of the states. The position was, if the slaves are property then they should not count toward the population of the state. The problem was, if the Northerners didn’t compromise they would loose the south. So, the Northerners compromised; slaves were counted as 3/5 of a person as part of the enticement to get these states with large slave populations to ratify the Constitution. By using the same representation to select the President, instead of a purely popular vote, the southern states would be more comfortable with the constitution and thus it would be easier to ratify. Although, we cannot find any reference that says this was a reason for the Electoral College; the effect is clearly there.
How could we remove or reduce the Electoral College effects?
1. Constitutional Amendment
The most obvious way to remove the Electoral College would be a Constitutional Amendment. The following is the process for amending the Constitution:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
For most states this would reduce their power in the selection of the President, not in the smaller states best interest, so it is really unlikely that one could pass an amendment like this.
2. The National Popular Vote Interstate Compact
Several states plus the District of Columbia have joined the National Popular Vote Interstate Compact. Those jurisdictions joining the compact agree to pledge their electors to the winner of the national popular vote. The Compact will not come into effect until the number of states agreeing to the Compact equals a majority (at least 270) of all electors. As of 2017, 10 states and the District of Columbia have joined the compact; collectively, these jurisdictions control 165 electoral votes, which is 61% of the 270 required for the Compact to take effect.
3. Increase the size of the House of Representatives.
The size of the House was set in 1911 at 435 representatives, or today about 1 representative for each 708,405 people in a state. States (North Dakota, Vermont, and Wyoming ) with populations less than 708,405 (based on 2010 census) get one representative. If the population of the smallest state is used as the divisor for 2010 that would mean that you would divide by 563,626. This would increase the size of the house by 110 members. By increasing the size of the house, you would also automatically increase the size of the Electoral College by 110. With this increase, the likelihood that the Electoral College would select someone that didn’t win the popular vote would decrease; here is why:
- Dilutes the effect of the two Senators per state.
- Increases the effects of large populations.
This change only requires the House and Senate to pass a bill and for the President to sign the bill.
4. The large states could replace win take all to an apportionment of Electoral College votes.
Today, all but two states are winner take all. This means that if a candidate wins a state by a few votes they get all of the Electoral College votes for that state. This happened a number of times in 2016, as an example Donald Trump won three states (Wisconsin, Pennsylvania and Michigan) with 46 Electoral College votes by less than 78,000 total votes. The popular vote totals in these three states was 13.5 Million, so the margin was tiny. Secretary Clinton, won California by 4.3 Million votes out of 13 Million votes. Based just on these numbers, it’s easy to see why Secretary Clinton won the popular vote by almost 3 Million votes and lost the Electoral College.
This solution isn’t easy to implement. The decision about apportionment vs. winner take all is currently up to each state. The large states are unlikely to convert to apportionment because they would lose power. The dominate party would see some of “their votes escaping to the other side”. A constitutional amendment to change this would probably be easier because the power would be more evenly spread across the states and the smaller states would be more likely to support the change.