by Michael C. Dorf
No, this is not simply a blog post arguing that the U.S. would be a better, more democratic polity if we elected our President via a national popular vote. I believe that. I support a constitutional amendment to make that change. Failing that, I support the National Popular Vote interstate compact as a means of circumventing the Electoral College (EC) as a second-best option for getting there. But I doubt that either change -- constitutional amendment or interstate compact -- will occur unless and until a Republican Presidential candidate clearly wins the popular vote but either loses or nearly loses the EC vote, because only then could there be enough of the state legislative support necessary for the change by either method.
However, that's not what I want to say today. Nor do I simply want to complain that in 2000 and 2016 the clear winner of the popular vote lost the EC and that, pending the outcome of recounts, litigation, and shenanigans, there's still a chance that could happen again this year. The consequences have already been catastrophic because of the substantive results of the 2000 and 2016 Presidential elections. The catastrophe that is Trump needs no elaboration right now. And while George W. Bush was a normal President when measured against the yardstick of Trump, let's not forget that W was a bad President measured against non-psychopaths: he ignored intelligence that might have prevented the 9/11 attacks, launched an unnecessary war in Iraq that caused enormous suffering and spawned what became ISIS, and abandoned Americans to their fate during Hurricane Katrina.
However, I'm not going to lay the blame for disastrous policy and, in Trump's case, the broad sabotaging of our democracy as well, on the EC. Responsibility for the last four years rests with the nearly half of American voters who either supported Trump for the reasons that decent people find him intolerable or were so in favor of low taxes for the wealthy, deregulation, guns, and/or socially conservative policies on civil rights and abortion that they were willing to overlook Trump's manifest flaws. (I blame my fellow Americans much less for choosing Bush in 2000, when he ran as a "compassionate conservative.") Were Trumpism confined to the fringes, then the fairly small boost the EC gives to it would not make much of a difference.
So what's actually wrong with the EC?
That's a stupid question, you might think. What's wrong with the EC is that it sometimes delivers the Presidency to the loser of the election. Yet that framing assumes that the winner of the popular vote deserves to be President. Why? For the sake of argument, let's question the assumption that EC winners/national-popular-vote winners like Bush 2000 and Trump 2016 necessarily would have lost a national popular vote.
Consider an analogy. Suppose that the loser of the World Series scored more total runs than the winner. Would we say that the winning team lost? No, of course not--and not just because the counting mechanism counts a 2-1 win as equal to a 10-0 win. We also can't say with any confidence that the team that scored more total runs would have scored more total runs if the Series were played under different rules. Maybe the ultimately Series-losing team ran up the score in winning Game 6 because the manager of the ultimately Series-winning team rested his best relief pitchers for the decisive Game 7 when he concluded Game 6 was likely out of reach. Under a total-runs rule, however, the manager would have proceeded very differently.
Politics is much like sports. Modern Presidential campaigns aim to capture the EC. Elections produce a popular vote winner, true, but only as a side-effect of campaigns that try to win the EC. If there are competitive down-ballot races in California, that will drive up turnout and thus Democratic votes in California, including for President, but there's no reason for a Republican Presidential candidate to spend any time or money futilely trying to win extra votes in California. If there were, Republican Presidential candidates might do better in the national popular vote. I believe we would probably still see a modest benefit to the GOP given current alignments, because there are parallel countervailing effects for Democrats. Still, given that popular vote totals are currently an artifact of the EC, we can't say with great confidence how similar or different they would be in a system with a national popular vote.
Thus, it's at least possible that the EC is harmless in the sense that it nearly always produces the same Presidents with which we would end up in a system in which candidates campaigned for and were chosen based on the national popular vote. But harmless doesn't mean helpful. If likelihood of producing the president who would have won under a national popular vote is the measure of the EC, then of course we'd be better off with a national popular vote.
Should that be the measure? Many people who hold power in a broadly democratic government are chosen through means other than direct election by vote of the People on an equal-population basis. So why not choose the President of a federal rather than strictly unitary system of government through a mechanism like the EC, that gives some weight to the states?
The line of reasoning that underwrites that rhetorical question could justify some system other than direct popular vote for a ceremonial head of state. However, the Presidency of the U.S. today is something else entirely. Several factors have turned the U.S. Presidency into an extremely powerful institution: the growth in federal power over the last century; broad Congressional delegation to the executive branch; and especially recently, aggressive assertions of executive power that go unchecked by a gridlocked Congress. The fact that a modern President exercises such enormous power at home and abroad on behalf of the People cries out for plebiscitary legitimation. Even if the EC almost never produced a President who lost the national popular vote, the failure to have a national popular election mismatches the modern institution of the Presidency to the selection process.
Meanwhile, the EC distorts campaigns. As the NPV website notes, battleground states receive a very disproportionate share of attention from the candidates, which must necessarily distort not just the campaigns but policy. Just as the first-in-the-nation status of the Iowa Caucuses leads to ethanol subsidies, so we expect Presidents and those with Presidential aspirations to pay particular attention to the wish lists of the folks lucky to inhabit swing states.
And that's not even the worst effect of the EC. The worst effect, playing out now as it did in 2000, is that it turns relatively close but clear-cut elections into photo finishes that in the current climate of intense polarization threaten to lead to very serious harm. Because he is a narcissistic liar, Donald Trump of course claimed that millions of votes for Hillary Clinton were fraudulent so that he won even the popular vote in 2016, but no serious person paid attention because it was a lunatic conspiracy theory that assumed that Democrats were clever enough to orchestrate a gigantic but undetected scam but too stupid to target it to the states where it would make a difference. I haven't been following the latest rantings of Trump, so I don't know whether he's also now claiming that he won the real 2020 popular vote, but my point is that a photo finish in the national popular vote in a country as large as the U.S. is much less likely than a photo finish in Georgia or Florida. Trump will implausibly claim victory under all circumstances. However, even a normal human candidate can in good faith throw the system into chaos in a closely contested state that could make the difference between an EC victory and an EC defeat.
The EC is thus terrible in principle and practice. Yet for the moment we're stuck with it. Can anything be done about that?
Maybe. Congress has the power to mandate timing rules governing the selection of Presidential electors. It has done so in the Electoral Count Act. However, timing rules can only do so much. If Congress could mandate some other uniform rules governing the manner of holding Presidential elections and counting votes, that would be extremely helpful. But Article II says Congress can set only timing rules, so we're out of luck, right?
Maybe not. Article I, Sec. 4 gives Congress the power to override state rules governing the timing and manner of holding Congressional elections. And because Congress specifies the same date for Congressional and Presidential elections, many rules that Congress sets for the manner of holding Congressional elections would necessarily also end up governing Presidential elections. Requirements to use auditable paper ballots, rules about who does and does not get to observe ballot counting, and many other standardized practices for Congressional races would become de facto requirements for Presidential elections and thus greatly boost confidence in results.
But (if Democrats don't win both Georgia Senate runoffs in January) could a polarized Congress agree on such rules? Perhaps. Ex ante, it is unclear which side gains partisan advantage from the sorts of good-government reforms I'm proposing. As a dramatic illustration, note that yesterday Trump's supporters were demanding that ballots be counted in Arizona in the hope that he would make up his deficit there while simultaneously demanding that ballots not be counted in Pennsylvania and Georgia, where they did not want to see absentee votes for Biden erase Trump's temporary lead due to the prior counting of election-day ballots. That's amusing hypocrisy, no doubt, but it also illustrates the larger point that there could be consensus for some reforms when enacted behind a veil of ignorance.
That's a modest proposal, I realize. Elimination of the EC would be much better, but absent a first or second-best solution, one does what one can. And if we manage to make it to January 20 without armed conflict, I'll count it an enormous success that Congress is debating how to ameliorate one of the negative impacts of the EC.