November 11, 2016

John R. MacArthur on the Electoral College and other hiccups in democracy

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The Outrageous Barriers to Democracy in AmericaThis following passage from John R. MacArthur’s The Outrageous Barriers to Democracy in America looks to the stolen 2000 election as a case in point for its consideration of one of the institutions surging toward the front of outraged and disoriented conversation about this week’s election: the bizarre, and occasionally tyrannical, Electoral College.


 

The editors at Junior Scholastic magazine are not altogether wrong in promoting the idea that virtually anyone can be president, or at the very least state senator or city alderman. Assuming that America is a true democracy—representative, popular, and constitutional—political office should, in theory, be open to those with the ability— through persuasiveness, intelligence, charisma, or sheer determination—to win a lot of votes. Surely the candidate with the most popular appeal is the sort of person who tends to get elected to high office, including president.

If all this is true, then how is it that George W. Bush was elected president in 2000 with a minority of the popular vote? Some Americans will cite spoiled ballots in Palm Beach County, Florida (which should have gone to Al Gore), Ralph Nader’s third-party candidacy (which took votes away from Gore), or the U.S. Supreme Court’s aggressive and constitutionally questionable overruling of the Florida Supreme Court’s order for a statewide recount.

A small number of better informed, perhaps more sophisticated citizens will blame the broadly undemocratic Electoral College enshrined in Article II Section I of the Constitution. Beyond the technical and legal controversies surrounding the counting of the Florida vote, they will express outrage that the voters of just one state chose the president of their great American republic. Bush’s victory in the electoral college (271 to 266) and defeat in the popular vote was the fourth time in American history that the more popular candidate lost the presidential election, although in the other cases — John Quincy Adams’s minority victory over Andrew Jackson, in 1824, Rutherford B. Hayes’s over Samuel Tilden, in 1876, and Benjamin Harrison’s over Grover Cleveland, in 1888 — Congress or the Electoral College determined the winner, not the Supreme Court.

To be sure, the Electoral College is a pox on the presidential selection process. The Constitution requires that the legislature of each state “appoint, in such Manner as the Legislature thereof may direct, a Number” of presidential electors equaling the total of U.S. representatives and senators in that state; it is these 535 people, plus three electors from the District of Columbia, who select the president and vice-president. The Constitution says nothing about conducting a popular vote for president, and it wasn’t until 1832, during Andrew Jackson’s populist administration, that it became customary for electors to be chosen directly by the people in nearly all states. In theory, Americans are voting not for a candidate per se but for a slate of electors named by the major parties who have pledged to vote for a particular candidate. Nevertheless, once selected, nothing in the Constitution or federal law binds the electors to vote for a candidate, and, in fact, there have been eight electors since World War II who have defied their party and declined to vote for the designated nominee. The winner-take-all understanding, however, prevails in all but two states, Nebraska and Maine, which award one elector to the winner in each congressional district and two to the winner of the overall popular vote in the state.

Why the other 48 states insist on a winner-take-all formula has more to do with the power of political parties than with any sense of proportional fairness. The Electoral College resulted, like so many other elements of the Constitution, from a compromise designed to protect the interests of less populous states in the new union. As with their several compromises on slavery (among other things, the slaveholding states were permitted to count a slave as three-fifths of a person for the purpose of increasing their populations and thus their representation in Congress and the Electoral College), the federalists understood they could not get agreement on a draft constitution without the consent of the smaller states in the North and the rural slave states in the South. But what a compromise was wrought! Today, the state with the fewest people, Wyoming, has three electors, one for every 171,668 people, whereas the most populous state, California, has 55 electors, one for every 662,865 people. Thus, the vote of an individual in California, which in 2000 went for Gore, has proportionally less value than a vote in Wyoming, which went for Bush.

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