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Comments on the Electoral College

Wednesday, September 9th, 2020

“The Electoral College Will Destroy America,” Jesse Wegman writes (hyperbolically). He doesn’t really have a case, though. He emotes, “This makes me really angry,” and he claims that a “a representative democracy [is] based on the principle that all votes are equal.” He also doesn’t like the “winner take all” system that most states use. He favors the interstate national popular vote compact. I Tweeted, “This is kind of amazing. A NYT editorial argues (or emotes) against the electoral college and the “winner take all” system. The op-ed uses the historical example of the winner-take-all system advantaging Black voters in NY over white voters in TX!”

Wegman references Nate Silver’s September 2 Tweet claiming that Joe Biden’s chances of winning the presidency surpass the 50% mark only after he exceeds a 3-point victory.

Wegman helpfully cites an August 23, 1823 letter by James Madison on the matter. But Wegman grossly distorts Madison’s position. Madison hardly was in favor of a national popular vote; instead, he favored “the election of Presidential Electors by districts.”

A recent NPR piece lavishes praise on Wegman’s take, noting he has a book out called Let the People Pick the President. Wegman’s argument that the votes of people in a state’s minority “disappear” in a winner-take-all system is particularly stupid. The same could be said about all votes that people cast for people who eventually lose; his argument, if legitimate, would strike against democratic elections per se.

Constitutional scholar Rob Natelson argues, “The Electoral College is still right for America.” He argues the national popular vote compact is an unconstitutional expansion of states’ designated powers. Elsewhere he argues that a national popular vote (NPV) would award “a majority in the Electoral College to whomever won a bare plurality of the reported national vote, even if some of the reported totals were corrupt. Presidential elections would fracture into multi-candidate affairs; less than 40 percent of the popular vote could assure victory.”

Elsewhere Natelson makes the following interesting argument: “Under NPV, the rot would soon spread to state elections. Most states have plurality election systems now, but their political parties are held together by the need to compete nationally. Once that need disappears, state elections would become as fractured as national races. Many Americans are unaware of how our presidential electoral system has protected us from Third World results. To win under our system, a candidate must win a majority in the Electoral College, which is almost impossible to do without winning at least 40 percent of the popular vote. (The one time it happened, the results provoked civil war.) Moreover, if no candidate receives a majority of electors, the House of Representatives run-off enables leading candidates to form coalitions with majority support.” A possible solution to the first problem is to implement approval voting, which I favor.

David B. Kopel and Hunter Hovenga argue, “The National Popular Vote Violates the Colorado Constitution.” They refer to the interstate compact. They seem obviously to be right, as the state constitution plainly states, “The general assembly shall provide that after the year eighteen hundred and seventy-six the electors of the electoral college shall be chosen by direct vote of the people.”

Last year I argued against the interstate compact proposal. I’ve also argued for splitting up the most-populated states and for expanding the size of the House.

The Supreme Court ruled that state governments can force electors to be faithful (to voter will).

September 13: Steve Coll also has an article out condemning the electoral college (same ol’).

Far from being racist, the Electoral College protects the interests of anyone in the minority—political, geographic, racial, or otherwise.”

September 15: I had a column at Complete Colorado arguing that the electoral college is basically a good idea but that its functioning can be improved by splitting up California and Texas and by expanding the size of the House.

Natelson wrote me via email and argued that I was wrong to think that perhaps the Colorado Constitution might violate the Federal Constitution by throwing the selection of electors straight to the people (not via the legislature). Natelson replied, “The U.S. Constitution assigns various tasks to ‘state legislatures,’ but depending on context the term can mean either of two things: (1) the normal lawmaking assembly of the state or (2) the state’s legislative power. SCOTUS has decided that in the election-law context it means the latter. Many conservatives have decried these decisions, but from an originalist point of view they are correct: Founding-era evidence demonstrates that. Although I believe SCOTUS’s recent presidential electors case was wrongly decided, it does reinforce the same view.” I thanked him for his analysis and replied, “So that means the NPV [national popular vote compact] violates both the state and federal constitutions.” See the column for details.