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Friday, August 31, 2007

Electoral College Reform

After a set of posts on Electoral College reform, I decided to write a short exposition of my views on the subject.  Alas, they were deemed too "subtle and equivocal" for TNR, which had originally planned to run the column.  Although the original version left open the question of whether Electoral College reform is desirable at all (certainly there are potentially viable arguments for preserving the system in some form), this version takes the need for reform as a starting point.  For what it is worth, here's my provisional thinking:

Democratic Principle and Electoral College Reform

Ethan J. Leib

The Electoral College is a relic from another time and is practiced in a way that perverts our selection of our country’s Chief Executive.  It enables presidential candidates to focus their campaigns on a small percentage of voters from a tiny number of swing states and disregard the needs of the rest of the nation.  This results because most states’ popular votes are not predicted to be close in a given election – and all states other than Nebraska and Maine award their electoral votes in a “winner-take-all” fashion, awarding no votes to the state-wide popular vote loser.  Electoral votes are not awarded proportionally and each individual citizen does not have the same power to determine who sits in the White House as our leader.  These dynamics can contribute to electing as our president individuals who have lost the popular vote.  But the Electoral College is, nevertheless, ensconced in our Constitution – and we need to amend the document to change that.  Still, some states are toying with Electoral College reforms at the state level.  And voters in those states need to know how to evaluate the offerings with which they are being presented.

For example, voters in California are about to be faced with two state-based reforms targeting the distribution of the state’s influential 55 electoral votes.  They can reject state-based reform altogether and vote for what we’ll call “Choice A,” a vote to preserve the current system of “winner-take-all” so that the state’s popular vote determines how all of their electoral votes in the Electoral College get allocated.  They can also vote for Choice B, a new initiative to distribute the electoral votes of the state according to the popular vote winners at the congressional district level (with two votes reserved for the state-wide popular vote winner).  And Choice C is having California join an interstate compact that would change California’s system to a different kind of “winner-take-all” distribution: If a consortium of states that represents a majority of the total electoral votes in the country joins the agreement, this plan would have all the electoral votes go to the national popular vote winner, irrespective of how the voters in the state vote.  What is a voter to do?

There is a fairly loud chorus from the left urging Californians to embrace Choice C.  At the very least, this liberal conventional wisdom recommends rejection of Choice B, deemed to be a naked power grab by Republicans.  And, in the very short term, it is undeniable that Choice B is likely to help Republicans capture electoral votes that they simply couldn’t get in the current winner-take-all climate that dominates the electoral landscape.  It is thus no wonder the left is loud and consistent on the point.  But there are also appeals to “democratic principle” beyond the partisan hankering.      

Of course, when debating the details of election reform, most think that the best way to be convincing is to try to stay above the fray of ordinary politics.  So appeals to higher principles of democracy are routine.  But, in this case, the principles likely leave California voters in equipoise and only partisan considerations will really help them make a decision.  For that reason, Californians should be urged to look at this problem of election reform as politics and not principle.  To be sure, they can look at the problem in terms of short-term “fairness” for 2008 – a perspective that counsels for a vote against Choice B.  But the rhetoric of “democracy” is not persuasive and should be discounted.

To the extent that there is a democratic principle that animates electoral vote reform it is this one: Our President should be elected by a national popular vote, not an Electoral College system.  To realize this principle without offending our written Constitution probably requires a constitutional amendment, since the Electoral College is a non-optional method of presidential selection in the document that constitutes our political ground rules.  This, of course, presents some problems for Choice C, favored by the left: it is effectively an end-run around amending the Constitution, the one true and proper way to abolish the Electoral College once and for all.

But Choice C has a more important deficiency from the perspective of democratic principle (because clever lawyers have made perfectly plausible arguments – arguments likely to be rejected by a Republican Supreme Court, mind you – for the interstate compact’s constitutionality).  It doesn’t change the status quo at all.  A vote for Choice C has the exact same consequence as a vote for Choice A from the perspective of the real world.  Both leave the California voter right where they found her – and neither brings the country any closer to meaningful Electoral College reform.  Voting for Choice C is a bit like symbolically voting to reprimand the current President for his handling of the war.  It does nothing to bring about the end of the war.

The best that can be said for a vote for Choice C is that, perhaps, it is a vote consistent with the principle.  But that is a thin reed on which to hang an argument to vote for a plan that accomplishes nothing practical towards bringing about the realization of the principle.  More, there is no reason California cannot back out of the compact as soon as it decides that it is no longer in its own interest to participate.  It barely serves as a meaningful commitment or intention to reform.

But maybe the left is onto something by highlighting just how violative of the principle Choice B is.  To be sure, it is likely that in the short term California’s electoral vote distribution under Choice B might contribute to making it statistically more likely to produce an electoral vote winner that is a popular vote loser.  But there is no guarantee that this result will follow over the long term by making the change to the district-based electoral vote distribution in California. 

Certainly, it makes no sense to evaluate the plan – as so many have – by abstracting from one state’s move in the direction of proportional vote distribution to assessing what the country would look like if all states adopted the method of district-by-district distribution.  Political theory can’t be done through this bizarre application of Kant’s categorical imperative, assessing one state’s action through imagining the plan being generalized to all states.  Californians have to assess the plan on its own terms.

And one can certainly imagine some benefits to Californians who embrace the principle emerging from adoption of Choice B.  A change to Choice B for California might stimulate a real movement among Democrats to abandon the Electoral College in the one right way it can and should be done – through constitutional amendment.  Destabilizing the purported “fairness” of the status quo may trigger real reform.  Or consider that a change to Choice B might stimulate meaningful districting reform in California and result in more competitive districts; if the President is suddenly at stake in districting design, districting reform might seem much more pressing. 

Less speculatively, a change to Choice B will likely give presidential candidates more reason to go to California and focus upon its citizens, make them campaign promises, and attend to the needs of the most populous state in the union.  The nay-sayers on this point emphasize that virtually all the congressional districts are designed to give a single party dominance, so no more effective competition will result from making the change to Choice B.  But just because most districts are locked up for a party for congressional races doesn’t mean that party’s presidential candidates will win the district.  After all, the gerrymandered districts are gerrymandered to ensure the success of the congressional representatives; and different issues come into play when voters choose a national leader.  Indeed, the same Californians who gave all their electoral votes to a Democratic presidential candidate elected a Republican Governor; the context of an election matters.  Many Californians are free thinkers and can think for themselves beyond party identification. The state that gave all its electoral votes to Clinton, Gore, and Kerry, FDR, LBJ, and Truman also gave all its electoral votes to Bush the First in 1988 and to Reagan, Ford, Nixon, and Eisenhower.

There may be something naïve about thinking that the gerrymandered districts can be unlocked from party dominance.  After all, in 2004, only 59 of the country’s 435 congressional districts “split” their vote between one party’s congressional candidate and the other party’s presidential candidate (though there were only about 35 districts that were deemed competitive in that year).  But even a few swing districts will give presidential candidates a reason to court voters of the left and the right in California.

In sum, the short-term effects of a move to Choice B for the 2008 election seem reasonably clear; but the long-term effects are very hard to predict.  All these other important results that might follow from adoption of Choice B are not only consistent with the principle (or, at least, they are as consistent as Choice C is); they also have substantial democratic justifications of their own that might encourage a principled voter to look well beyond 2008.

There may yet be one other principle that could clearly sustain a vote against Choice B: voters are being lied to in its promotion and advertisement.  The “Citizens for Equal Representation” who support Choice B and are responsible for getting it before California voters are misinforming voters about its motivations.  And a different Kantian-inspired morality of truth-telling may support the idea that voters should oppose those who lie to them.

But this principle is not really a democratic one, quite.  And, in any case, it might be a hard principle to live by as a voter.  We’re lied to all the time.  Moreover, voters will be and have been lied to about the democratic credentials of opposing Choice B and endorsing Choice C just the same.

In the final analysis, speaking in the high-minded and self-righteous discourse of democracy is inappropriate in this context.  Urging people to vote for Choices A or C is urging them to preserve the current state of affairs, which no truly democratically- principled individual should be able to do without feeling quite dirty in the process.  Admittedly, there is a conception of fairness that recommends against endorsing Choice B – but it is not a purely democratic one and it is predicated on a short-term vision about the 2008 election in particular.  Ultimately, the fact that electoral reform will require us to talk in partisan terms should not be surprising: we’re talking about politics, after all. 

I have no trouble voting against Choice B because it is so obvious to me that I couldn’t live with the consequences in the short term.  But that is the Democrat in me speaking, not the democrat who has worked through the principles and knows what they demand that I do.  That democrat thinks the decision is guesswork on the democratic principles, so he feels fully comfortable deferring to his partisan partner on this one.

Ethan J. Leib, author of Deliberative Democracy in America (2004) and co-editor of The Search for Deliberative Democracy in China (2006), is a professor of constitutional law and legislation at the University of California’s Hastings College of the Law in San Francisco. 

Posted by Ethan Leib on August 31, 2007 at 12:01 PM in Current Affairs | Permalink


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Ethan Leib has posted his op/ed discussing the proposals in California to change that state's disposition of electors. I've commented here, cannibalizing and digressing from my post on the subject last week... [Read More]

Tracked on Aug 31, 2007 10:04:02 PM


It reinforces our founding fathers concept of representative government.

There's something fainly amusing when - and this seems to happen often, although usually one expects it from the left not the right - one reads claims that in order to remain true to the vision of the founding fathers we must abolish the institutions they bequeathed us. And it takes on particular irony when it's people who would doubtless describe themselves as conservatives militate for the sort of fundamental changes in our system of government one associates with the progressive era. Tony, the logic of your position will lead inexorably to the abolition of the electoral college - how progressive of you.

Posted by: Simon | Sep 2, 2007 4:03:12 PM

Simon and Ethan
To borrow an expression you are all "FOOLS". Your pink slip is showing.
Historically, our founding fathers saw the wisdom of establishing a form of
government based on the Romans and Vatican models.
In forming a representative form of government they concocted the Electoral College dived in two parts. State and national. Each state was assigned 3 electoral votes and nationally each state was given a bonus for population. The system satisfied the demand of the minority states.
The alternative democratic form of government as now practices by the Democrat
Party mirrors the governments of Hugo Chavez, Fidel Castro where the ruling power elite
makes all the decisions. Is that what you want?? To give up your freedom to be an ass.
For example in the Democrat party if you take position for saving life of the unborn in abortion you are dead meat. If take a position supporting our current foreign policy, Ditto. If take a position that homosexuals should stay away from children you are doomed. On and on!!
Reform of the Electoral College defined as B is consistent with our institutions.
Why the Reform is a really good idea!
Returns the power of the vote back to the people ( proletariat).
It reinforces our founding fathers concept of representative government.
Presidential candidates will not ignore California like they did in 2000 and 2004.
California will become a competitive market in the Presidential race forcing candidates to campaign in this great state.
$100,000,000! That’s right, one hundred million will be spent in California in media purchases.
Grass roots political issues will become involved in the election.
Independents votes will matter.
Rural voters will have a voice.
California will reflect its political demography.
It enhances the importance of swing voters and competitive districts.
It is the fairest system possible.
Visit our website: ElectoralReformCalifornia.com

Posted by: Tony Andrade | Sep 2, 2007 12:45:38 PM

Right. But the piece doesn't purport to make a full argument on that front. It begins with the conclusion that we [liberals] want Electoral College reform and abolition. That happens to be my starting point for a variety of reasons -- but it is a question I bracket for the purposes of having this particular conversation. The piece has no stated intention to convince anyone who wants to preserve the Electoral College system on account of her belief in its democratic credentials or otherwise about anything (though it is far from clear to me that your appeals to tradition have much to do with democracy per se). In any case, this column doesn't appear in TNR; it appears here, where I made absolutely clear that "this version takes the need for reform as a starting point." In fact, it was the editors at TNR that asked for this beginning; the original version I submitted to them WAS agnostic.

Posted by: Ethan Leib | Sep 1, 2007 12:43:45 AM

Ethan, your introduction doesn't explain that you "take[] the need for reform as a starting point" arguendo, it takes the position that it ought to be abandoned. No TNR reader is going to read the opening line "[t]he Electoral College is a relic from another time and is practiced in a way that perverts our selection of our country’s Chief Executive" and think "here's a piece that's agnostic on reform and is solely intended to 'show that the liberal invocation of the democratic highroad on this question is much more complicated that it acknowledges.'" You make a conclusory assertion that reform's necessary and concede that both offered solutions are imperfect so why not let partisan expediency break the tie. As I see it, to mount a reform (especially so major a reform) you need to explain the defects in the status quo and why your preferred solution is clearly an improvement; your piece abdicates on both fronts. You don't make any arguments for what's broken with the present system and you don't try to connect a remedy to asserted defects. In those circumstances, it seems to me, Choice A - the status quo - is the only rational choice, but you dismiss it out of hand.

Posted by: Simon | Sep 1, 2007 12:23:38 AM

Simon -- The Preface was written especially for you: "Although the original version left open the question of whether Electoral College reform is desirable at all (certainly there are potentially viable arguments for preserving the system in some form), this version takes the need for reform as a starting point."

I don't think, mind you, that "tradition" is a reason as much as it is an excuse. But there are some reasons to preserve the Electoral College, some of which you mention. This piece is not addressed to that question; it was always intended only to show that the liberal invocation of the democratic highroad on this question is much more complicated that it acknowledges.

Posted by: Ethan Leib | Aug 31, 2007 10:51:48 PM

On several levels, I disagree; I would select option A even though it runs counter to my partisan interests. As for Choice C, one might have thought that this was so obviously unconstitutional as to beyond serious consideration - but given the ongoing attempts by a genuinely frightening number of members of Congress to provide the District of Columbia with voting representation in Congress (many of whom, one might add, doing so while accusing the President of Constitutional violations out of the other sides of their mouths), this seems to be the season for such argument. To borrow from Oakeshott, it seems to me that since direct democracy appears to be the felt need of this moment in our history, the proponents of direct democracy (good Rationalists all), on finding that the Constitution doesn't always provide for direct democracy have determined that if it "has been defaced by the irrational scribblings of tradition-ridden ancestors, then the first task of the Rationalist must be to scrub it clean."

I think that my criticism last week of your previous post on this subject applies to this one also, and isn't really moved by the op/ed, because it remains the underlying assumptions that I find problematic. As I said then,

While no tradition can supersede the Constitution itself, it can give content to ambiguous constitutional text, and moreover, erects a rebuttable presumption that grows stronger with the passage of time; even when the traditional solution is less than ideal, it at least has the virtue of being tried and tested, and its unintended consequences have already become apparent. To alter any part of a densely interlinked system is to set off reverberations that cannot be predicted with effects that may be undesirable, will likely become irrevocable, and may ultimately be deleterious - hence the familiar law of unintended consequences. [Internal quotation marks omitted]

The constitutional mechanism of electing the President (and its accompanying exoconstitutional practices) that you can't think of "one good reason" beyond partisan considerations to uphold, Ethan, is the mechanism that has been used since almost the very beginning of the Republic, with only two modern exceptions (Maine and Nebraska) and scant few early holdouts against statewide votes (after 1828, only South Carolina had not moved to what we now recognize as the modern system of a statewide vote to determine the disposition of the state's electors). It has, to my recollection, never failed, and hasn't come close to failure since 1876 - yet you barely dwell on the possibility of retaining with the existing system for long enough to assign it the label "Choice A." Perhaps my most fundamental disagreement with you is that in arguing that both choices B and C are problematic in terms of principle and so should be decided in terms of partisan interest, you presume that it is an either/or choice. Having introduced the three options - opt to retain the vanilla status quo, opt for strawberry flavored change or opt for chocolate flavored change - you simply ignore the former. To choose vanilla, the subtext says, is so absurd that it warrants no consideration. The only question is between strawberry or chocolate - not whether or not to change the system.

This presumption in favor of change isn't good enough. As I said last week, "to displace a traditional practice that has accreted around the Constitution's text over the span of two centuries requires more than merely an idea." Rationalists and partisans must identify more than what Burke called a "present sense of convenience or ... inclination" before hacking away at longstanding traditions and institutions of the American polity. This follows a fortiori when the talk turns to formal amendment. The burden rests on those who would upend and throw off longstanding practices to identify clear and compelling problems with current practice, and then link those problems to a solution that offers substantial improvement on current practice, one closely enough tailored as to pose little (or at least, acceptably limited) risk of unforeseen and deleterious consequences. As I see it, you've not begun to clear this hurdle, and may even have conceded that the plans fail the final prong.

Posted by: Simon | Aug 31, 2007 9:53:38 PM

David: My point is that it is all speculation. So go with what works for you on a partisan front or based on a short-term fairness sensibility.

Paul: "Certainly, it makes no sense to evaluate the plan – as so many have – by abstracting from one state’s move in the direction of proportional vote distribution to assessing what the country would look like if all states adopted the method of district-by-district distribution. Political theory can’t be done through this bizarre application of Kant’s categorical imperative, assessing one state’s action through imagining the plan being generalized to all states. Californians have to assess the plan on its own terms."

Posted by: Ethan Leib | Aug 31, 2007 2:44:30 PM

Truly, even if the "democracy argument" doesn't convince one, it should be noted that the congressional district scheme actually turns out to be just as undemocratic - if not more undemocratic - than the Electoral College system as it already is. Check this out from FairVote, and see what I mean:

Posted by: Paul | Aug 31, 2007 1:55:49 PM

I don't know the details of California's proposed Choice C, but I question your equation of it with Choice A as a practical or political matter. First, I'm not so certain that Choice C is likely to be held unconstitutional. Second, even if it is, such a result might help create momentum for a tweaked plan that would pass constitutional muster, or even an actual amendment. And third, there is some non-trivial chance that voting for Choice C is a step towards making elections more [small-d] democratic; the possibility of failure is no reason for a democratically-principled individual to feel dirty as he or she would in voting directly for the status quo. (Indeed, if Choice B is adopted in California but not nationwide, there is a decent chance that it will make things *less* democratic, even in the long term, a danger not present in Choice C.)

Posted by: David Krinsky | Aug 31, 2007 12:24:46 PM

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