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.