Switching to popular vote from electoral college

Submitted by brad on Mon, 2006-07-24 13:57
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A proposal by a Stanford CS Prof for a means to switch the U.S. Presidential race from electoral college to popular vote is gaining some momentum. In short, the proposal calls for some group of states representing a majority of the electoral college to agree to an inter-state compact that they will vote their electoral votes according to the result of the popular vote.

State compacts are like treaties but are enforceable by both state courts and federal law, so this has some merit. In addition, you actually don't even need to get 270 electoral votes in the compact. All you really need is a much smaller number of "balanced" states. For example perhaps 60 typically republican electoral votes and 60 typically democratic electoral votes. Maybe even less. For example I think a compact with MA, IL, MN (42 Dem) and IN, AB, OK, UT, ID, KA (42 Rep) might well be enough, certainly to start. Not that it hurts if CA, NY or TX join.

That's because normally the electoral college already follows the popular vote. If it's not going to, the race is very close, and a fairly small number of states in the compact would be assured to swing the electoral college to the popular vote in that case. There are a few exceptions I'll talk about below, but largely this would work.

This is unlike proposals for states to, on their own, do things like allocate their electors based on popular vote within the state, as Maine does. Such proposals don't gain traction because there is generally going to be somebody powerful in the state who loses under such a new rule. In a state solidly behind one party, they would be fools to effectively give electoral votes to the minority party. In a balanced state, they would be giving up their coveted "swing state" status, which causes presidential candidates to give them all the attention and election-year gifts.

Even if, somehow, many states decided to switch to a proportional college, it is an unstable situation. Suddenly, any one state that is biased towards one party (both in state government and electoral college history) is highly motivated to put their candidate over the top by switching back to winner-takes-all.

There's merit in the popular-vote-compact because it can be joined by "safe" states, so long as a similar number of safe votes from the other side join up. The safe states resent the electoral college system, it gets them ignored. Since close races are typically decided by a single mid-sized state, even a very small compact could be surprisingly effective -- just 3 or 4 states!

The current "swing state" set is AZ, AR, CO, FL, IA, ME, MI, MN, MO, NV, NH, NM, NC, OH, OR, PA, VA, WA, WV, and WI, though of course this set changes over time. However, once states commit to a compact, they will be stuck with it, even if it goes against their interests down the road.

The one thing that interferes with the small-compact is that even the giant states like New York, Texas and California can become swing states if the "other" party runs a native candidate. California in particular. (In 1984 Mondale won only Minnesota, and got just under 50% of the vote. Anything can happen.) That's why you don't just get an "instant effective compact" from just 3 states like California matching Texas and Indiana. But there are small sets that probably would work.

Also, a tiny compact such as I propose would not undo the "campaign only in swing states" system so easily. A candidate who worked only on swing states (and won them) could outdo the extra margin now needed because of the compact. In theory. If the compact grew (with non-swing states, annoyed at this, joining it) this would eventually fade.

Of course the next question may surprise you. Is it a good idea to switch from the electoral college system? 4 times the winner of the popular vote has lost (strangely, 3 of those have been the 3 times the winner was the son -- GWB, Adams - or grandson - Harrison- of a President) the White House. The framers of the consitution, while they did not envision the two party system we see today, intended for the winner of the popular vote to be able to lose the electoral college.

When they designed the system, they wanted to protect against the idea of a "regional" president. A regional winner would be a candidate with extreme popularity in some small geographic region. Imagine a candidate able to take 90% of the vote in their home region, that region being 1/3 of the population. Imagine them being less popular in the other 2/3 of the country, only getting 31% of the vote there. This candidate wins the popular vote, but would lose the electoral college (quite solidly.) Real examples would not be so simple. The framers did not want a candidate who really represented only a small portion of the country in power. The wanted to require that a candidate have some level of national support.

The Civil War provides an example of the setting for such extreme conditions. In that sort of schism, it's easy to imagine one region rallying around a candidate very strongly, while the rest of the nation remains unsure.

Do we reach their goal today? Perhaps not. However, we must take care before we abandon their goal to make sure it's what we want to do.

Update: See the comments for discussion of ties. Also, I failed to discuss another important issue to me, that of 3rd parties. The electoral debacle of 2000 hurt 3rd parties a lot, with a major "Ralph don't run" campaign that told 3rd parties, "don't you dare run if you could actually make a difference." A national popular vote would continue, and possibly strengthen the bias against 3rd parties. Some 3rd parties have been proposing what they call a "safe state" strategy, where they tell voters to only vote for their presidential candidate in the safe states. This allows them to demonstrate how much support they are getting (and with luck the press reports their safe-state percentage rather than national percentage) without spoiling or being accused of spoiling.

Of course, I think the answer for that would be a preferential ballot, which would have to be done on a state by state basis, and might not mesh well with the compact under discussion.

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Comments

Tom Galloway

Mon, 2006-07-24 19:30

Two errors; first the typo; Mondale ran in 1984, not 1884.

And Jackson didn't lose in the Electoral College to JQ Adams. The results for that race were:

John Quincy Adams (MA) 84 115,696
Henry Clay (KY) 37 47,136
Andrew Jackson (TN) 99 152,933
William H. Crawford (GA) 41 46,979

Jackson had the most popular votes and the most Electoral votes, but didn't have anywhere near a majority of either due to it being a race with four significant candidates. Note that Clay was actually the one messed with by the popular/Electoral difference, as he had more popular votes than Crawford, but fewer Electoral (although they were very close to a dead heat). That's significant, since the 12th Amendment handles the situation of no candidate getting an Electoral majority by tossing it to the House...who only get to choose between the top three Electoral vote winners. Clay, who was Speaker of the House, was thus eliminated. He threw his support and influence within the House to Adams, who thus won as a result of a vote of the House, not due to either Electoral or popular vote wins.

brad

Tue, 2006-07-25 00:03

of the circumstances of Adams' election. It is, however one of the instances where the winner of the popular vote did not become President, to be more correct. It is just odd that the 4 times this happened include the 3 "dynasties." Almost enough to make you wonder if there is some reason for it.

Jess Austin

Mon, 2006-07-24 20:10

This proposal doesn't really do away with the electoral college, but rather causes it to operate differently. That is a good thing, because the electoral college plays a valuable role, but not for the reason you attribute to the Framers.

There is far less variability in political thought among states than within any particular state. You can find conservatives in Massachusetts just as you can find liberals in Utah. So the regional candidate isn't so dire a threat. Incidentally, this fact also mitigates the supposed harm that results from candidates ignoring any particularly safe state: whatever the views held by voters in that state, voters in other states hold them too. The Framers probably would have been happy about that.

The real advantage of the electoral college is in discretization of the vote. When we have a close election, the lawyers and partisans are able to focus on the votes in a few states (Florida, for instance), rather than prompting nationwide recounts. Compare this to the situation in Mexico right now. Obrador hasn't accepted the official result, which is that he barely lost to Calderon. Depending on the rulings of various courts, they may have to physically recount all 41 million votes cast in the election. Every recount they've done so far (each of which has been at a summary level rather than ballot by ballot) has had a slightly different result, so this is clearly a painful process.

The Framers probably wouldn't have used the word "discretization" (if in fact that is a word?), but they did have a sense of how difficult it is to reliably count votes. By setting up a system more tolerant of errors in cardinality, they made accurate (in terms of the chosen rules if not in terms of "absolute democracy") ordinal results more likely. The proposal trades some fault-tolerance for some democracy, by making the vote slightly finer-grained. That is, the smallest increment in an electoral college contest will now be one electoral vote rather than three (the number of votes that very small states get) or more. That's probably OK.

Are near-ties so common that concern for them argues for retaining the electoral college? First, near-ties are the only situation that matters; no one cares about the difference between losing by 40 points and losing by 41 points. Second, as political parties have become more professional, they have become more skilled at slicing and dicing the electorate. Barring external events, they are less and less likely to nominate a truly unelectable candidate like a Mondale or a Dole. (except perhaps in contests against incumbents deemed unbeatable?) A close election in a two-party system is an indication that both parties have done their jobs well. Near-ties aren't going away and so the electoral college shouldn't either.

Gordon Mohr

Mon, 2006-07-24 23:26

To expand Jess Austin's point:

The ability to focus on a few swing jurisdictions also helps make voting itself (before any recounts) more observable and fraud-resistant.

Consider the alternative, with a vote anywhere worth just as much, be it in the most deep-red Southern suburbs or dark-blue urban fiefdoms. In a close election, a few thousand votes *anywhere* could be the swing. The overzealous and marginally corrupt in every partisan stronghold would have both motive and opportunity to 'run up the vote', knowing there's not enough scrutiny to reach everywhere at once (and confident that their local dominance could cover up any tricks).

Reducing the contest to a few swing jurisdictions lets every part of the process concentrate: the advertising, the GOTV, the ballot/count monitoring, the post-election analysis (and if necessary recounts). A more dispersed process could easily have more fraud and more randomness in its final result, which hardly seems beneficial for democracy.

(I'm happy with the swing states being the 'jury' which decides the presidency for us. I would even be happy explicitly delegating the choice to a few hundred or few thousand voters. They'd be chosen in advance by lottery, intensively campaigned by the candidates, suitably compensated for their efforts, then given time to deliberate. That'd be a much easier process to monitor for fraud and corruption than a natiional popular vote, and its 'error bars' no greater.)

brad

Tue, 2006-07-25 00:16

Well, I'm hardly unaware of it, having written about the tie problem a few times before. My solution within the current system for ties is for states to "winner takes all" their electoral votes if the winner has a margin of 1%. If it's less than 1%, then pro-rate the votes based on what fraction of 1% the margin is. In a super-near tie the votes are then evenly split. This avoids frauds and even avoids long battles because the most you can win with a giant battle is one electoral vote, perhaps 2 at most if you can change the total by thousands.

Such an algorithm can also be applied to a national popular vote system, if we should want it. The compact can agree to allocate its electors in any way it wishes, including an algorithm like the above, though that would mean possibly giving the White House to the popular vote loser.

Of course, using popular vote reduces the chance of a tie or slim margin somewhat. Now there are 51 chances for a near-tie, though tiny states are not worth manipulating in most cases.

The college does make it easier to conduct your fraud, I think, in that you can concentrate it in just one very swingable state. I think that's easier to do than doing it nationally, though more detectable by some measures. Voting procedures are set state by state.

The "super close" 2000 election was still a margin of over 500,000 voters. That's a lot of votes to change with vote fraud. The larger your make your conspiracy, the more likely it is to be found.

Now I expect your idea of having an actual electoral college is unlikely to ever get traction. The interesting thing about this proposed compact is that it is getting traction. The public currently says, in surveys, it wants rid of the college.

Gordon Mohr

Tue, 2006-07-25 12:08

In a national popular vote, there'd be a lot more very-close elections -- see the marginal voter theorem. A two-party system is designed to create ties.

(Which also brings up another potential problem with ditching the EC -- it could encourage highly unstable multi-candidate elections, where fringe candidates aim to get elected or make a runoff with a small plurality. Unless our legislature and culture adapts to embrace a multi-party system, I don't think multiparty presidential elections would be a good mix-in.)

Fraud in swing states is much harder. By definition, sentiments in a swing state are nearly evenly divided -- both sides have a lot of power 'on the ground' where it matters. Plus, everyone's paying close attention.

The graduated allocation in close +/-1% situations is an interesting idea, and lessen the incentive for fraud somewhat. But, it can't help in a true national popular vote: ultimately, top vote getter, even if by 1 vote, wins.

People say they want rid of the EC, but I think they'd miss it if it went.

Gordon Mohr

Tue, 2006-07-25 13:26

Er, I meant Median Voter Theorem -- and specifically that once the national vote totals become the important thing to fight over, the contestants will converge towards a precise 50/50 split much closer than our popular vote totals of the past. (These just come close sometimes by chance, since the contestants aren't really even trying to split the national vote evenly.)

brad

Tue, 2006-07-25 15:06

But the interesting thing about Koza's proposals, and my suggested extension of them, is that the country can change the system somewhat with just the action of a few key states, and not through a constitutional amendment. We won't easily get the constitutional amendment as there are states that benefit strongly from the existing system, either because they are swing states that get all the attention, or they get disproportionate representation (3 votes for Wyoming).

Now a small compact of states can't force a preferential ballot outside their own borders of course. A larger compact of states (with 200 or more electoral votes, and of course with 270) could do just about anything they wanted of course, even declare that the election will only take place in those states, and the votes in other states are irrelevant! (It would be interesting to see the supreme court challenge over that.)

For example, a large or majority compact could declare a preferential ballot in those states, and rule that the votes go to the winner of a preferentially ballot combined from all states that conduct a proper preferential ballot (in the compact or not.) This can happen without requring 3/4 of the states to ratify or 2/3 of congress. It's a much, much lower bar, though as noted there would be controversy about doing an "end run" around the constitution.

Fringe candidates can't force a runoff as yet. The compact in fact would assure a majority for somebody in the electoral college, especially as it gets larger. Official runoffs, on the other hand are possible. As flawed as the voting machines many counties are buying are, one thing they do allow is quickly counting more elections before the electoral college's deadline.

I disagree that fraud in swing states is harder. Success at any type of vote-manipulation, legal or illegal, is more likely in a swing state of course -- it's almost impossible federally. Fraud in swing states can be confined to a small number of precincts, where you can actually cover it up.

The median voter principle drives candidates to the middle, but not that close. As noted, Gore vs. Bush is still a half million margin, and Nixon/Kennedy was 120,000, as close as we've come in modern times.

To win such a vote by fraud you have to find a way to steal hundreds of thousands of votes and not get caught, while hoping for one of the closest elections ever.

Gordon Mohr

Tue, 2006-07-25 18:48

It's not clear from the superficial coverage of Koza's proposal how it'd deal with the problem of, say, the leading candidate getting 20% of the vote, 8 other candidates splitting the other 80%. (Plurality wins? Runoff? Instant-runoff/ranked-pref?)

The proposal is interesting for the constitutional and strategic implications.

One fun one: who enforces? Consider, for example, that California joins but then winds up not liking the result -- perhaps even believing there's been fraud in some other states against the California-favored candidate. They refuse to honor the compact, casting electoral votes loyal to the California-favored, but nationally-behind (in disputed counting) candidate. Does Congress or the Supreme Court have any authority to ignore these votes, on the basis they violate a compact? Can they compel votes in accordance with the compact if that's required for the compact to have its intended effect? (IMO, the only basis for allowing a compact in the first place would be ultimate state sovereignty in EC matters; in which case, a severeign right to change their mind at any time could also be inferred.)

I continue to think your past examples of close elections aren't good examples of how close things would become in a national popular vote. Those elections were somewhat close by sheer chance: the candidates weren't even trying specifically for a popular vote win. The vote totals from non-swing states had a large random component, changed by protest votes and rational stay-at-homes. If the aim is a national popular-vote majority, then a razor-thin victory becomes what both sides (and their bankrolling coalitions) will professionally aim for.

The whole country would then act like a swing state, and the national vote differential would look (in magnitude) more like a medium-state's differential -- making the <500K (and maybe <50K) differential far more likely. And then you'd have to look for fraud and misdeeds in every precinct, in every podunk partisan corner and machine-politics urban ward nationwide. RFK Jr. thinks 160K votes were swung via shenanigans in evenly-divided 2004 Ohio under everyone's watchful eye. I think cheating up 500K votes nationally, from deep within their respective strongholds. would be far easier for each party. Can the national media tell the difference between a 'legitimate' Bush-61, Kerry-38 victory in Texas and a 'run-up-the-score-by-500K-votes-with-tricks' 64-35 victory?

brad

Wed, 2006-07-26 11:20

After reading about Koza's plan I did some checking. State compacts are indeed enforceable, and they supersede state law. They can be enforced by the state's own courts, or the federal courts. There are apparently many precedents. So California would have to lump it. There might be a plan in the compact for amendment or dissolution, and they could use that.

I don't think the elections are close by sheer chance, in fact I think elections are more national than "all politics is local" suggests.

In a national election, you would keep your personal appearances more to the dense areas, and aim as always for places with lots of undecided voters. Media buys tend to be priced as CPM in traditional media, so the cost of that is similar.

Yes, they can tell the difference. National fraud means national conspiracy. (Voting machine hacking being the exception, which is why we need paper trails.) National conspiracy means way too many conspirators to keep it secret.

Anonymous

Wed, 2006-07-26 15:31

You seem to forget that each voter is electing their "electors", not the electors for some other State. To suggest that the State, as an independent Sovereign, can simply ignore the expressed will of their people and subject it instead to the voters in another State is about the most undemocratic suggestion I have ever heard.

brad

Thu, 2006-07-27 00:57

I guess it depends on the view of people as to how independent states are. They submit to federalism, this would be one other way.

There could well be a 14th amendment challenge to such a compact. The 14th does demand that every male citizen over 21 gets to vote in any election of the electors of the President, but it doesn't say that it's that state's electors. But it will be argued. The state constitution and statute may have things to say about these matters, I don't think a compact can supersede a state constitution.

Gordon Mohr

Sun, 2006-07-30 14:50

Perhaps past compacts have been enforceable by federal courts. Still, the uniqueness of the scenario I've proposed makes me doubt those precedents apply. Say that California mailed in its electoral votes for candidate 'A', in violation of a (years-ago) compact, but in accordance with (1) its popular vote; and (2) its current legislature. Would even the Supreme Court in such a case say: (1) discard those votes; and further (2) count them instead for candidate 'B' instead -- a candidate who may be incredibly unpopular in California? That's a tall order, assuming a past compact can permanently encumber a state's exercise of its constitutional duties.

Nationally-significant fraud does not require national conspiracy. In fact, I think the national coordinating bodies of the political parties are relatively unlikely to want to see fraud. They're professionals; they care about their party's 'brand'; they can stand losing in a fair fight. It's the grassroots that's often unhinged, overzealous, eager to win at any cost (esp. if they think the other side is cheating too). That's the fraud I fear, totalling up to tens of thousands of votes in the aggregate, without any national coordination.

brad

Sat, 2006-08-05 15:07

And certainly would create fun tests. But do you suggest California's electors, after having signed an oath to cast their ballots based on the rules of the compact, would plan, in secret to violate the oath and follow the California popular vote? And get away with it?

I am not studied in just what the rules are on Presidential election ballots. On your ballot is the name of a Presidential candidate, but the reality is you are chosing a slate of electors in today's system. (I've seen ballots though of course have never voted here.) The constitution has rules on popular votes for the slate of electors (giving blacks and women votes, forbidding poll taxes etc.) but I am not sure how much it demands that there be a popular vote of the electors at all.

But I don't see a secret conspiracy here -- or the amalgam of decentralized conspiracies. There are lots of places with large popular votes, and they have fraud of course, but is it really more risky than the US system where fraud in an Ohio or Florida can make such a big difference for the amount of work you put in.

One of the more documented attempts at vote influencing involved denying minority voters in Florida voting rights because of real or imagined past felony convictions. This was not secret, but locally it could make a difference. Could it be done so easily nationally?

Anonymous

Tue, 2006-07-25 05:33

It's time to wake up and smell the coffee. The U.S. has already
made plain to the world what the informed have known for decades,
that it is one of the worst human-rights offenders in the world.
It is also partially ruled by religious (Christian) fundamentalists,
who go around telling everyone that religious (islamic)
fundamentalists are a danger to the world.

Now it is time for a country with a very undemocratic system to stop
telling the rest of the world what democracy is.

If, say, Milosovic came up with a system such as the electoral college
("this region has a small portion of the population, but their votes
count more"), the international community would, rightly, have said
"whom are you trying to fool?".

Admit that the electoral college stems from a time when one had to
have not just representative democracy (which I think is a good idea;
division of labour is the basis for civilisation) but representational
voting as well. Those days are long gone.

Any mathematician will tell you that the difference between 1 and 2
is less than that between 2 and an arbitrary number. In other words,
a two-party system is only slightly better than a one-party system.
Many countries in the rest of the world are much more democratic than
the U.S. (The systems aren't perfect, but MUCH better than the
electoral college.) But the U.S. still thinks it is the most
democratic country on the planet.

Anony2

Mon, 2006-07-31 22:58

Clearly, "July 25 Anonymous" is a critic of the Electoral College. But there are many who do not understand its purposes, one of which is to protect minority voters in America (according to geographic distinctions, rather than other definitions of "minority"). And it serves also as a reminder that the US is a federation of independent sovereign States, not a single entity with merely different levels of government.

Whether the majority of American voters are urban or rural, in the East or the West, in large States or small, the Electoral College acts to very slightly adjust the balance in favour of the minority, to help ensure they are not likely to simply be ignored.

It does not serve democracy well for a country with a heavy urban population bias to largely ignore rural voters (whose votes cost a lot more both to campaign for, and to cast).

brad

Sat, 2006-08-05 14:58

While the principle has validity, I do sympathize with those who worry that the federation-of-states system generates rather specialized minorities, and the reason for most of them is historical legacy with no particular promotable public good, even if some of them do promote such goods. I don't think we would create it this way today.

If you want to protect minority rights, other methods are possible, including requiring supermajorities.

You should not ignore rural voters, but does that mean give them more say than similarly ignored groups of urban voters? One would hope not. Thanks to technology, the costs of campaigning to rural voters has dropped, and the cost of casting (which I don't think is too tremendous) can also be made more level.

Freedom Rider

Sat, 2007-08-18 13:17

"The framers of the consitution, while they did not envision the two party system we see today, intended for the winner of the popular vote to be able to lose the electoral college."
-Brad

The framers of the Constitution intended for America to be a Republic, NOT a democracy, whereby the individual rights of freeholders and landowners were protected from tyranny, including the tyranny of the mob (democracy is synonymous with mob-rule).

They didn't give a damn (nor should we) about non-landowners or how they would have voted. If the framers of the Constitution wanted a popular vote, they would have, well, framed the Constitution that way.

Today it does not matter who wins the election. The Federal Reserve (which is neither Federal, nor do they store any monetary reserves anywhere) acts as the surrogate King of America by electronically manipulating the money supply, thus controlling every facet of our lives.

Roger

Sun, 2008-06-29 19:31

If the US goes to a popular only election many western states would have no influence on the election. Since their votes wouldn't count there would be no need to pay attention to them. In effect you move the US to Mobacracy. Where only the top populus states have any say in our future.
Also if the powers that be get this latest "Fairness in broadcasting" idea into effect. It will close down independant thought Liberal or Conservative. If that happens we are no better than Russia where the airwaves only support what the government wants.
Just a few comments probably going nowhere. Hey we all need some where to vent.
Thanks Brad!

Anonymous

Tue, 2008-10-28 10:36

You've all obviously spent a lot of time studying this. I'm just starting to understand it all so forgive me if I over simplify this but if all of the candidates are using basically the same strategy, and campaign equally in the more populated states, and let's say they tie, wouldn't western states or less populated states become all the more important?

Has there ever been an instance where electorates voted against the popular vote in their state? If so, could it have affected the outcome of that election?

Our current system has worked 89% of the time. What happens when the tires on your car works 89% of the time? Again, I don't mean to oversimplify but shouldn't the American people choose who will be their president 100% of the time instead of a group of yet to be determined electorates, chosen by partisan officials, slipped on the ballot (not even mentioned on the ballot in most states) whom, in states that do not require that they vote for a specific candidate, can vote for whomever they want, representing 257 electoral votes? How much easier is it to influence 257 electoral votes especially when those with their respective agendas are selecting those who would cast our vote’s "for us" (gee thanks for making my life so much easier and taking away the need for me to fulfill my civic duty) verses those with an agenda influencing thousands of American citizens in an unjust manner?

I really don't like the idea that I'm actually voting for an electorate, by default, that's going to essentially cast my vote for me and I don't even know their name or what they stand for.

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