Voter Participation

What if 

One speculation about the national popular vote is that it could permit someone to win the presidency without gaining a large fraction of the popular vote.

Another way to say this is that the national popular vote could give a third-party a chance to be more than a spoiler like Nader in 2000 or Perot arguably in 1992. 

Therefore, arguably, the Electoral College is useful because it creates a majority by the terms of the Constitution.  If there is no majority in the Electoral College the selection process moves to method number two, which is choice in the House of Representatives. If no one obtains a majority of delegation votes there, then the Senate picks the president. 

So goes the claim. 

Let’s unpack it. 

First, the supposition is that a majority in the Electoral College creates legitimacy even if underlying it there is no majority in the popular vote. Indeed, the loser of the popular vote can garner that majority. 

It is difficult to know what to say about an argument premised on the view that a loser of the popular vote gains legitimacy through a selection system that ignores the popular vote. Isn’t this dread circularity? And who is supposed to concede that legitimacy? Certainly not the voters and yet aren’t they the only relevant audience? Remember, under our current system, it is possible for a candidate to win a two-party race while getting as little as 23% of the popular vote.

Second, if we assume that instead of two major parties, three or four or five or six each gain meaningful shares of the total, then it is unlikely any candidate wins a majority of electors, and so the House selects the president on a state by state vote. But if multiple significant parties exist then the House has already divided into multiple blocks akin to many parliaments. The likely outcome is that no candidate wins 26 delegations as required. 

Then the Senate decides. There disproportionality rules. States with tiny fractions of the populace can play the deciding role. Legitimacy is not the outcome. 

Third, this speculation presupposes that major third parties and fourth parties and fifth parties would come out of nowhere to nominate viable presidential candidates. That’s crazy. 

History indeed shows that and political parties do not last forever. Famously the Republican party once was a new thing competing for preeminence. 

But the job of winning the presidency through the national popular vote in big America requires resources of vast scale. The barriers to entry for a spoiler party with the electoral college system are trivial. But the threshold cost for a serious third-party candidate to win the necessary minimum of 34% of the vote in a three-person contest is so high that in fact the national popular vote system would not permit the existence of more than two or three viable major parties, and it would require any or all of these parties to create big tents containing multiple factions. Compromises would have to be reached within the parties for them to achieve national scale. It would be impossible for a winning party to be mostly a one race, one language, one ethnicity, dominantly single gender, nativist block. Not saying that exists, but doesn’t the electoral system enable that option?



Karl Rove’s Weak Defense of the Electoral College

In his editorial, “The Lovely but Unloved Electoral College,” appearing in the April 10, 2019 Wall Street Journal, former George W. Bush strategist Karl Rove does not so much defend the Electoral College but attempts to minimize its failings and paints a parade of horribles that he imagines would descend if the system were altered.  If anything, much of his defense of the current system is an argument for its alteration.

First, Rove states that there is “zero chance” of abolishing the Electoral College because it would take a constitutional amendment. While he is correct that an amendment is unlikely, he is wrong that there is no other way for the system to change. The National Popular Vote Interstate Compact is an agreement among states to give their electoral votes to the winner of the national popular vote once states with 270 electoral votes join the Compact.  Right now, fourteen states plus DC have passed the Compact, totaling 189 votes—70% of the way to becoming effective.  There is tremendous momentum behind the Compact, with Oregon likely to be the next state to join with 7 additional electoral votes.

Rove does not argue that it is good that the Electoral College sometimes means a person becomes president despite the fact that more voters preferred another candidate.  Instead, he argues that splits between the Electoral College and the national popular vote are a “rare divergence” explained by “extenuating circumstances.”

But these “circumstances” are in fact strong arguments for reform. He argues that the only reason George W. Bush lost the popular vote in 2000 is because the TV networks prematurely called Florida for Gore at 8:02 Eastern time, while many western states were still voting.  Rove does not provide a citation for his assertion that “Republicans were more likely to be discouraged and stay home, probably costing George W. Bush several hundred thousand votes and two states, New Mexico and Oregon,” but even if it were true, this is a good reason why the country would do better under the popular vote.  If all votes count equally, it will be much more difficult for networks or other actors to interfere with the results, intentionally or otherwise, while votes are still being cast.

Rove also asserts that “Winning GOP candidates may have fallen short in the popular vote in 1876 and 1888 only because the black Republican vote in the South was being extinguished by violence.” What he doesn’t mention is how the Electoral College meant that even if they had been able to vote, the votes of African Americans in the south would not have counted because they could not get a plurality in the states where they lived, a problem that persists to this day.

More important than past elections is the likelihood that the Electoral College will thwart the will of the people in the future. Rove notes that there have only been five Electoral College/popular vote splits out of 58 elections, but fails to note that splits have occurred in two out of the last five elections, and two out of the last three open elections. Our analysis shows that, far from becoming more and more rare, splits will become increasingly likely when the outcome rests on just a few swing states.  In close elections, there will be a split in up to 32% of elections, with neither party having a long-term advantage.

Next, Rove suggests that a number of consequences would befall our nation if we switched to a national popular vote: there would be recounts needed in many states, third parties would multiply, and small states would be ignored.  But those are all problems that exist in a worse form under the current system than under a popular vote. 

  • A popular vote election involving hundreds of millions of voters would be unlikely to be close enough to need multiple recounts, unlike the winner-take-all Electoral College where the election can turn on a few hundred voters in a single state.

  • Right now, a third party candidate could theoretically win the election with only 23% of the vote. Under a popular vote, a third party would at least have to get more votes than anyone else. Further, many Americans feel disenchanted with the two major parties and would welcome real third party challenges, perhaps in combination with ranked-choice voting

  • Finally, small states, as well as most big and medium-sized states, are already ignored by candidates who instead lavish almost all of their attention on big swing states like Florida and Pennsylvania. 

Rove claims that “[t]he Founders knew what they were doing. Abolishing the Electoral College is an awful idea.”  But though the Founders were brilliant men, they were not omniscient. They came up with a compromise that reached the necessary votes—and that was constrained by the hard limits on travel and communications at the time—but which they themselves acknowledged was not perfect.  More importantly, it bore very little resemblance to the Electoral College as it operates now. It was, according to Hamilton, meant to be a deliberative body of a “small number of persons, selected by their fellow-citizens from the general mass, [who] will be most likely to possess the information and discernment requisite to such complicated investigations” as choosing the president.  Of course, the reality is far different.

It is time to work within the confines of the Constitution to allow the people to choose the president. Article II, Section 1 of the U.S. Constitution allows the states to determine how electors are appointed. If state law in enough jurisdictions directed the electors to pledge their votes to the winner of the national popular vote, campaigns would have to look everywhere for votes instead of focusing on a few swing states. Only then will every vote matter equally.



New Hampshire Considers the National Popular Vote

In February 2017, New Hampshire Senators Jeanne Shaheen and Maggie Hassan voiced support for replacing the Electoral College with a popular vote system, but lamented that such a change would require a constitutional amendment, “which, as Hassan put it, would be ‘a challenge,’ at the very least.”

However, there is no need to get mired down in the constitutional amendment process when our system already gives states the power to award their electors to the winner of the national popular vote. The National Popular Vote Interstate Compact has already been passed by jurisdictions equaling 189 electoral votes. Once states with 270 electoral votes enact the Compact, it will go into effect and the person who gets the most votes will become the president.

New Hampshire could be the next state to pass the Compact, which is currently under consideration as House Bill 541.  New Hampshire newspaper Concord Monitor has endorsed the Compact because it will make candidates court voters outside of swing states and will make every vote matter across the country:

The Electoral College system leads candidates to ignore states that they consider sure winners or losers and focus on swing states like Florida, Ohio and New Hampshire. It leads presidents, as can be seen by Trump’s 10 visits to Ohio since he took office, to curry favor with swing states while in office and ignore states they don’t believe will support their re-election.

Replacing the Electoral College with a system that rewards the winner of the popular vote would give candidates an incentive to compete in every state. As in other elections, the person who wins the most votes should become president, not the candidate who, with a minority of votes in winner-take-all system, is declared the winner by the Electoral College.

The National Popular Vote compact is a way to restore fairness to the system without amending the Constitution. It would make future presidents more legitimate rather than accidents of an outdated and flawed system.



Why Conservatives Should Support the National Popular Vote

From Republican activist Brian Laurens in the Washington Times:

If you a conservative residing in the deeply red and rural South, you’re taken for granted every four years while the Republican ticket pours almost all of its time and money into 12 so-called “battleground” states. There’s basically no reason to even bother to vote.

All together in 2016, Georgia, Mississippi, Alabama, Arkansas and Louisiana delivered 5,971,583 popular votes and 45 electoral votes to the TrumpPence ticket — exactly one-sixth of the 270 electoral votes necessary to elect a president. Yet, just four of the 151 major Republican general election events held across the country took place in those five deeply red states.

It’s easy to understand why campaigns treat their most solid supporters so offhandedly. Why, they reason, should we waste precious resources in states where we are so far ahead we can’t possibly lose? (Or, for that matter, in states where they are so far behind they can’t possibly win.) So, while 38 states sit on the political sidelines, the real campaign takes place in 12 battleground states with big blocks of electoral votes, and a propensity to swing them back and forth between red and blue every four years.

As a result, Americans don’t elect a president of the United States of America. Rather, they elect a president of the Battleground States of America.

The National Popular Vote Interstate Compact, which has already passed 14 states and the District of Columbia with a current 186 electoral votes, would change that situation dramatically.

Knowing they need to win the popular vote in order to be awarded 270 electoral votes and the White House, candidates would be compelled to conduct truly national campaigns, seeking out every voter in every nook and cranny of the nation. The Democratic ticket kissing babies in rural red Kansas, while the Republican ticket mines for conservatives in blue Oregon. Just imagine that.


Let the People Decide if They Want the National Popular Vote

So far, the National Popular Vote Interstate Compact has only been passed by Democratic legislatures. But it’s also possible for the people to weigh in directly via the ballot box on whether they want every vote across the country to count equally. From Time:

Reed Hundt, head of the bipartisan Making Every Vote Count advocacy group, thinks the states that will put [the Compact] over the top might instead come from a successful ballot measure driven by grassroots support. Twenty-six states allow voters to approve either an initiative or a referendum on an issue, including potential interstate-compact targets like Ohio, Missouri and Arizona.

“The important thing is public opinion,” the former FCC chairman said. “The American people by large numbers need to say, ‘What’s up with this 18th century artifact? We don’t need to let it pick the president for us. We should pick ourselves.’”

Hundt remains optimistic that it will succeed eventually, in part because he thinks Electoral College results will increasingly cut against the popular will. A statistical analysis in 2017 done for Making Every Vote Count predicted splits between the Electoral College and the popular vote could happen in nearly one out of three elections in the next century, and neither party is likely to have a long-term advantage.

Based on how members of both parties have reacted in the past, a Republican loss under those circumstances would likely move public opinion on the right pretty quickly. And that, Hundt believes, could be what finally makes the difference.


The National Popular Vote is Bigger than Any One Candidate

Jamelle Bouie for the New York Times admirably explains that the national popular vote is about more than partisan fighting or the outcome of any one election and succinctly lays out the arguments in favor of reforming our current system, including:

  • The Electoral College undermines the principle of one person, one vote.

  • The Electoral College means that candidates can (and do) ignore rural voters in big and mid-size states like California, New York, Illinois, Alabama, and South Carolina because those states are taken for granted by one party or the other.

  • As a matter of math, California and New York could not dominate elections under the national popular vote.

    • In 2016, only about a quarter of all votes cast came from New York, California, Texas, and Florida in total.

    • Even if everyone in those states somehow voted unanimously, candidates would need to campaign elsewhere to win.

  • On the other hand, under the Electoral College, the 11 biggest states could decide election by bare majority in each state.

  • Under the national popular vote, people with similar interests across state lines can band together to make their voices heard.

  • Framers feared "pure democracy," but the real concern was there was greater suffrage in the north than the south because of slavery.

  • The Electoral College makes it possible for the House to decide the president, which would be chaotic and destabilizing. 


North Dakota Mistreated

I was kindly invited to speak on the Plain Talk podcast with Rob Port in North Dakota. Here’s what I tried to communicate:

  1. The 216,000 North Dakotans who voted for Donald Trump got three electors in the Electoral College, but only 174,000 Trump voters in Wyoming got the same number, and only 163,000 in Alaska got the same number. What's fair about not giving every vote in every state equal weight? The only way to do that is to count every vote in every state equally in a national contest for the presidency.

  2. There are according to various sources at least 583,000 eligible voters in North Dakota. Of course it is a Republican leaning state, but only 216,000, or 37%, voted for Donald Trump. Why? Because his campaign took the state's outcome for granted, and not every vote cast there mattered. This is how the electoral college system does not bring North Dakotans into full participation in the single national election. The result is that your citizens get less attention paid not only in the general election but generally in politics than they deserve. This is why, for instance, the tariff war doesn't help you, why the focus on manufacturing in Ohio does nothing for you, and so on.

  3. There are 60 million Americans in rural areas. By and large they are ignored relative to the residents of a handful of swing states, even though their concerns and issues are quite distinct. The reason is that almost all live in states that are taken for granted by the presidential nominees.

  4. According to Wikipedia, presidential visits to North Dakota are few and far between—only seven visits since Nixon—if you want to take that as evidence of being taken for granted.  By contrast, Barack Obama and Donald Trump alone have visited New Hampshire (a state with only one more electoral vote than North Dakota) seven times as presidents.


Dispatch from the Land of the Ignored

As everyone probably knows, in seeking the 270 electoral votes, both parties' candidates in the general election take for granted more than 40 states, where more than 80% of Americans live.

Nevertheless, some people assert that this skewed game makes candidates pay attention to small states and the Midwest. That was demolished succinctly last night by a respected Republican strategist:

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In just the last day numerous presidential candidates have inveighed against the current system. They all grasp that no one in the country really wants the presidential election in 2020 to be determined by the two parties spending two or $3 billion on trying to persuade voters in just five or six states. 

Well, there is an exception. One presidential candidate tweeted that if every vote in the country mattered, and were counted equally to pick the president, then the candidates would ignore all small states and all states in the Midwest.

The idea that with a national popular vote system the parties would pay no attention to voters in the Midwest or Great Plains is about as logical as saying that Amazon doesn’t deliver products outside big cities or cell phones don’t connect to people everywhere in the country. Everyone in business knows how to reach everyone in the country, and in the business of politics with the national popular vote the candidates would do what businesses do: try to get every single customer. 

More than visiting, advertising, opening get-out-the-vote offices, going on radio, supporting small town newspapers, polling and calling people in small population states, the candidates would actually have to listen to people in every state. When every vote counts, every person gets attention.

Politicians who like the status quo might well dislike national campaigns by the presidential candidates. Republicans would have the incentive to rebuild their party in Vermont; Democrats would seek voters in the Dakotas. Two party contests would occur in most states, and some incumbents would lose their seats. Voters would have choices to make. Elections would not be foregone conclusions and mere coronations. The political parties would have to be big tents, where compromise was required to bond factions together. Small market newspapers and broadcast stations would be invigorated by advertising and news about candidate visits. Things would change. Democracy does that.

For those who think the country’s politics are heading in the wrong direction—and rural areas have high percentages of people who feel this way—the best possible antidote for the troubles of today is the election of the president by the people.

When I was the chairman of the FCC one of the reasons we wanted the Internet to touch everyone was precisely because we thought that if the political parties could reach everyone cheaply and efficiently through digital technology they would do so. The only reason that doesn’t happen now is the electoral college system makes 40 states and 80% of the people functionally irrelevant (taken for granted as) to the outcome of the presidential election.  


Beto O'Rourke Criticizes Electoral College

Beto O’Rourke has joined other 2020 candidates Elizabeth Warren, Pete Buttigieg, and Kirsten Gillibrand in noting the unfairness of the Electoral College as the system currently operates.

When asked about it on the campaign trail, O’Rourke said that the Electoral College "puts some states out of play all together. They don't feel like their votes really count." O’Rourke added that “if we really want every person to vote,” the system has to “make sure their votes count and go to the candidate of their choosing.”


What most people want

This chart shows that no presidential candidate could win the national popular vote by opposing immigration.

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If the national popular vote mattered to choosing the president, there’s no doubt that the boiling divisive controversy over immigration would simmer down to the point of debating the necessary compromises over (a) who can stay, (b) who can come in, and (c) how to expel or keep out those who cannot stay or come in.



Right, Professor, Right

In his book “No Property in Man,” historian Sean Wilentz writes of the Constitution’s Framers, “On July 20, the delegates gave their initial approval to what might have been the most decisive triumph on behalf of slavery of the entire convention….the creation of the Electoral College.” Page 70.

The Electoral College was conceived in the sin of slavery. No one now argues that slavery was anything other than a horrible proof of the depravity of human beings. Holding on to it was the single strongest motive of the southerners at the convention.

As Wilentz writes, “the convention divided between those more and those less impressed by the competence of popular rule,” but beyond doubt “southerners in both groups had an additional reason to oppose popular election of the president.”

What was that? And does it still lurk in the thinking of those who oppose direct election by national popular vote of the president? See, e.g., former Maine Governor Paul LePage, who oppose direct election because it would empower non-white voters.

Wilentz explains that because slaves would not be able to vote, “southerners were unlikely ever to win the presidency under a democratic system.”

Even today, more than 200 years later, African American voters in the south typically play little to no role in the general election of the president – because the electoral system systematically discards the votes for runners-up, which usually is where the non-white vote in the polarized south goes:

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To win the southern states’ agreement to vote for the constitution, Madison apportioned the electors according to total of the seats in the House, which gave weight to slaves on a three-fifths basis, and seats in the Senate, which gave weight to relatively underpopulated states (which came to include more slave states, like the nearly empty Florida and Arkansas). The unsurprising result, Wilentz explains, was that “four of the first six presidents of the United States were Virginia slaveholders.” He might have gone on to say that no president was anti-slavery until Abraham Lincoln in 1860. And Lincoln won only because the Democratic Party split between northern and southern factions.

The history of America is the history of race and the principal arguments for the Electoral College system today are, whether or not well-intentioned, all too clearly resonant of the views of the southern delegates in the 18th century and Governor LePage this week.



FiveThirtyEight Takes a Look at the Popular Vote Movement

The National Popular Vote Interstate Compact is gaining momentum and getting attention. Political forecasting website  FiveThirtyEight notes that with the addition of Colorado, the first state to join the compact that is not solidly blue, the Compact has reached a huge milestone and is two-thirds of the way to the 270 votes needed to guarantee the president would have to win the popular vote.

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The FiveThirtyEight Politics Podcast also covered the national popular vote movement, and discussed the ways that the Electoral College system distorts the way candidates campaign. 

In reality, the problem goes much further than campaign stops or advertising money.  The Electoral College system also warps the way that presidents seeking re-election govern—and the consequences are very real.



How to Win the Presidency by Losing

Former Starbucks CEO Howard Schultz’s announcement that he is considering running for president as an independent did not go well.  A CNN poll showed that only 13% of Americans have a favorable opinion of him. 

However, thanks to the intricacies of the Electoral College, Schultz could end up becoming the president even if only a small percentage of the people vote for him. As Hugh Hewitt explains in the Washington Post, the 12th Amendment states that the House of Representatives will choose the president if no candidate gets 270 or more electoral votes.  If Schultz wins even one state, he could end up as a compromise candidate despite getting the fewest actual votes.

This scenario may be unlikely, but it demonstrates the very real problem of third-party candidates acting as spoilers who can thwart the will of the majority in our presidential elections.