Electoral College

Election Integrity and the Electoral College

One underappreciated benefit of voting by states.

|The Volokh Conspiracy |

With the Electoral College still in the news, I thought I'd note one small argument for keeping it that I haven't seen much elsewhere. (Though I'm quite sure it isn't original to me.)

As Ross Douthat suggests, the stakes in the electoral college debate may be smaller than we think. Today's institution may not have the deliberative advantages the Founders hoped for, but it also may not produce quite as many democratic costs as critics fear. (Cf. Lyman Stone's argument that the U.S. electoral system actually has less structural bias than those of peer countries.)

Ross's claim is that a state-by-state vote in the electoral college encourages broad electoral coalitions, as opposed to regional parties chasing 51% majorities. With the country so polarized, he writes, both parties are chasing 51% anyway—so maybe all the electoral college does is to delegitimize the occasional winner.

My suspicion, though, is that it's precisely in these circumstances—with high degrees of polarization and partisan distrust—that the electoral college does the most for election integrity.

In a nationwide popular vote, every false vote that's cast anywhere in the country adds to the vote total in exactly the same way. For the same reason, every true vote that's suppressed anywhere in the country will subtract equally from an opponent's numbers. (Thus the concerns about nationwide recounts: as Keith noted, "we might need to be prepared to deal with the new incentive to shade the vote count in every county in the Union.")

A world of highly polarized states makes the problem even worse. In a deep-red or deep-blue state, where one party occupies the vast majority of state offices, there'd be means, motive, and opportunity for serious fraud. The whole nation would be at stake, and fewer people would be in positions of power to discover or punish any shenanigans. And if you think your political opponents might be rigging a national election somewhere halfway across the country, well, you're just a sucker if you don't beat them to it.

By contrast, in a districted system like the electoral college, widespread election fraud in Alabama or Massachusetts would be entirely pointless. There'd simply be no reason to get started: your candidate is going to win all the electoral votes either way, so there's no point in breaking the law by turning a victory into a blowout. Presidential elections are decided by the purple states, the ones in which each party might plausibly attract a majority of voters. And in those states, simply by virtue of their purpleness, there'll almost always be a greater share of the public interested in claims that an election was rigged—and stronger opposing-party institutions capable of preventing or contesting it.

So the electoral college cauterizes election fraud in highly partisan states, the states where fraud is easiest to commit and to get away with. And by limiting the consequences of polarization, the system might also help slow the process in the first place, preventing the accelerated breakdown of trust that would accompany widespread suspicions of fraud by the other side.

Maybe that's one reason why many parliamentary systems choose their chief executives through districted elections, cauterizing any fraud committed in highly partisan regions. If we're going to have districting in the U.S., then a state-by-state election isn't crazy. As a friend points out, detecting fraud may be easier when there are a smaller number of jurisdictions to watch. And unlike House districts, state lines can't be gerrymandered in line with shifting coalitions. (This advantage is distinct from the claim that districted elections increase the power of individual voters, or the claim that separate state elections are needed for experiments in expanding the franchise—such as to women in the 1890s, 18-year-olds in the 1960s, or other groups today.)

This isn't a slam-dunk argument for keeping the electoral college. Other countries do nationwide elections without one, and some do undistricted popular votes. But cauterizing partisan fraud strikes me as a real benefit, if an underappreciated one. If the electoral college is one more of the republic's guardrails, then we should be somewhat careful about removing it.

PS: Thanks to Eugene and the crew for having me on!

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  1. One could craft an Electoral College that features the ostensible benefits promoted by Prof. Sachs without creating the undeserved (and perhaps unattractive) amplification of backwater votes associated with the current Electoral College.

    1. As opposed to a popular vote system that would amplify the votes of Hispanic immigrants in Los Angeles, homosexuals in San Francisco, Arabs in Dearborn, and Haitians in Miami?

      1. Are they citizens of the United States? Yes? Then what does it matter what sex, race, or sexual orientation they are?

        1. To Republicans and conservatives, it makes all the difference in the world.

          They are going to be replaced, and deservedly so, and they don’t like it.

          1. Given that we keep America running, defended, and fed, you better hope you’re wrong.

        2. Because they’ve shown that they can never assimilate to American values.

  2. IMO, the best compromise (admitedly requiring a Constitutional amendment) would be to require all states to divvy up their electoral votes proportionately. Or some variation on that, such as is now done in Maine and Nebraska. (See here: http://www.270towin.com/content/split…..-nebraska/)

    1. But that has exactly the same drawback as popular vote. Suddenly there is a strong incentive to cheat in one party states. In fact, it is even worse since gerrymandering becomes even more important.

      And that is before state courts come in of course. Imagine that in the next election, it is not only the Florida supreme court trying to ensure its preferred candidate wins as it did in 2000, but that this happens in 10 states at once.

      Frankly this sounds more like a recipe for civil war than a reasonable electoral reform.

      1. That’s why I say that, before we could even consider getting rid of the EC, we’d have to finally get serious about reforming the way our elections are run, nation-wide. They’re a mess.

        The Democrats are talking about reforming them, but mostly with the aim of making the situation worse.

        1. Well yes, but how? EC is far from perfect, but in today’s hyper-partisan world, every solution I have seen is worse.

          You would need to run the elections federally, but that would only mean the party in power would pack the body overseeing those elections with its sycophants.

          1. I’ve proposed an election corps, which would take volunteers, train them, and then RANDOMLY assign them to precincts. That “random” is important, it would make organizing a conspiracy anywhere very difficult.

      2. If you use true proportionality, then gerrymandering is not an issue.

        Cheating is certainly an issue, but the remember that even under a proportional system, you only get the next increment. For example, if Texas has 20 electoral votes, then each vote is 5% of the vote in that state. You have to do a lot of cheating to get to the next 5 %.

        1. Only fractional divvying would really make sense. In a state like Nevada, with 6 electoral votes, if you only awarded whole electoral votes, the 52 winner would get 4 while the 48 winner would get 2, or you’d round down and up and get 3 and 3. Either is not good.

          1. Why would 3 to 3 (which is the nearest rounding in your example) not good? That roughly is the breakdown — if the state split 52 to 48, that means it is roughly even between the two candidates. If it has 6 electoral votes, that means 3 to 3.

            Why is that bad?

            1. Because it means that in swing states, it would never make sense to campaign. You’re never going to get enough one way or the other to swing it to 4/2 (in that example).

              1. I don’t think that is right. If you round off to the nearest number (up or down), then all you have to do is swing it by half an increment to get to the next number.

                To use your example, if Nevada has six electoral votes, each one is 16 2/3 %, but if you take advantage of rounding, that means you need a swing of 8 1/3 % to get to the next electoral vote.

                IOW, at 50% you get 3 electoral votes, at over 58 1/3 %, you get the fourth (and the other side loses one). From 52 to 58 1/3 is very doable.

                And in any case, why is that worse than winner-take-all, where in many states it is very hard to get the highest number? (I think some 40 states are not competitive, one way or the other.) If anything, proportional divvying ends up with more states in play.

    2. “(admitedly requiring a Constitutional amendment)”

      Which is why it is unlikely. You”ll have to pry Hawaii’s or Montana’s extra electoral votes from their cold, dead fingers.

      1. You mean convince the many flyover states, hated by the coasts, that the problem with the US is that the coasts don’t have enough power?

        1. I don’t see how proportionate award of electoral votes takes power away from the small or “flyover” states. It just makes all the states (or almost all, maybe not DC) competitiive.

          1. “I don’t see how proportionate award of electoral votes takes power away from the small or “flyover” states. ”

            You don’t? I mean — really? You don’t? I didn’t see a “sarc” indicator.

            1. What you are saying is not that the smaller states lose power. They won’t. What you are saying is that the dominant party in the small states lose power, since one electoral vote might go to the other side.

              That is certainly a political impediment, but does not make the change inherently unfair to small states.

      2. Which is why it is unlikely. You”ll have to pry Hawaii’s or Montana’s extra electoral votes from their cold, dead fingers.

        No prying is required. They still have the same number of electoral votes. They are just not awarded as all or nothing — they are divided proportionately.

        A big advantage, IMO, is that you do away with the concept of red or blue states. California, for example, is considered a blue state, but it still has a sizable number of Republicans. If the R’s get 40% of the vote, their candidate gets 40% (roughly) of the electoral votes.

        Same for Texas in reverse.

        1. The point here is that of forcing compliance. If the states decide themselves to turn proportionate, well more (or maybe “less”) power to them. Forcing the matter would require an amendment, and in today’s hyperpartisan atmosphere I’m pretty certain at least the interior red states would have none of it.

      3. I’m not seeing the connection here. Requiring Hawaii to apportion their electoral votes in (some form of rough) proportion to the voters within that state has nothing to do with the total number of electoral votes they have.

        1. Hyperpartisanship. Hawaii might have to give a vote to a Republican. Montana to a Democrat. The very little clout they have comes from the ability to pool electoral votes. I’m not against it. I just think there are strong interests at stake, both practical and symbolic.

    3. I should note one drawback of proportional electoral votes: the increased possibility of a third party candidate getting some votes, and in a close election, no one gets the requisite 270.

      According the website I linked to, that would have happened in 2016: six votes would have gone to a third party candidate, Trump and Clinton would each have gotten less than 270 (Trump I think had one or two more than Clinton.)

      So then what happens? Under the Constitution currently, the election goes to the House of Representatives. Perhaps that also could be changed, but such a result would be very destabilizing.

    4. I’d be far more likely to support increasing the House of Reps than removing the ability of states to decide on their own how to apportion their electors.

  3. “By contrast, in a districted system like the electoral college, widespread election fraud in Alabama or Massachusetts would be entirely pointless.”

    Well, it would be if President were the only elected position. As it is, widespread election fraud can net you quite a bit even if the EC winner in your state is a foregone conclusion.

  4. I like the comparison to parliamentary systems, where the MP districts are the equivalent of states for compartmentalization, and I bet there’s enough difference in sizes to raise some of the same small/large district complaints about stolen elections.

    I wonder if anyone has compiled a list of popular vote / MP votes for Prime Minister or party representation. I know I’ve seen a lot of lists where the popular vote and party representation are far more out of whack than the US.

    1. I see that link answers my question well enough. Interesting stuff. Thanks for posting this.

  5. Tara Ross has covered many of these issues including the points raised in this article. She has published a good amount of information in support of the Electoral College, including these resources:

    http://www.taraross.com/catego…..l-college/
    https://www.prageru.com/presenter/tara-ross/
    https://www.youtube.com/watch?v=uwG6NRPPBzk

  6. I have no problem with dividing Electoral Votes by Congressional District, with the statewide winner getting the two additional votes.

  7. Another problem with the current “National Popular Vote” compact is that all of a state’s electoral votes would go to whoever gets the biggest percentage of the national popular vote even if the biggest percentage is 20% or even 10% or lower. The interstate compact says: “The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the ‘national popular vote winner.'”

    Currently, at east 50% of the electoral vote is needed to win, so a top vote-getter who gets only 20% or 10% of the popular vote is extremely unlikely to win enough electoral votes. That’s one reason why we have a two-party system that usually produces only two major candidates in a head-to-head matchup. Under the new compact, there seems much less incentive for a head-to-head matchup.

    According to the Constitution, “The Person having the greatest Number of [electoral] Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed….” If no one gets majority, then it goes to the House o Representatives, but no vote would ever go to the House of Representatives under the National Popular Vote compact. In the House of Representatives, “a Majority of all the States shall be necessary to a Choice.”

    1. Another problem with the current “National Popular Vote” compact is that all of a state’s electoral votes would go to whoever gets the biggest percentage of the national popular vote even if the biggest percentage is 20% or even 10% or lower. The interstate compact says: “The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the ‘national popular vote winner.'”

      Then will come the day California sits there and watches as their totals go to a Republican. One of two things will happen:

      1. Grumbling
      2. A lawsuit by citizens that their vote is being taken from them, perhaps additionally arguing they don’t want to amplify the winner’s Big Mo.

      Which will probably be granted…at that point. Thus changing the rules after the election to favor one candidate, which you are not supposed to do.

  8. The “benefit” of “cauterizing partisan fraud” is just a conjecture by Sachs. Where is the factual basis. There is an abundance of history to look at here, both with state governor’s races in the US and elections of the chief executive in other nations, such as France, which like the US are reasonably free of widespread official corruption. If this is really such a huge benefit, there should be a pile of specific cases to point to.

  9. I do not find the argument that the electoral college “cauterizes” the safe states against vote manipulation to be at all persuasive. The benefits of vote rigging through gerrymandering, voter suppression of the other party, etc., accrue almost entirely at the state level. The dominant party is going to do that anyway, with or without a popular vote for president. The additional tilt that a little bit more vote rigging will supply to the dominant party’s presidential candidate is negligible for any one state.

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