From Portside Culture <[email protected]>
Subject The Corrupt Bargain: Inequities of the Electoral College, Past and Present
Date May 29, 2020 12:00 AM
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[The U.S is ostensibly a democracy, yet past presidential
elections, most recently in 2016, saw the loser of the popular vote
elected. Two authors look at the convoluted Electoral College system,
singular among advanced nations, and propose remedies.]
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PORTSIDE CULTURE

THE CORRUPT BARGAIN: INEQUITIES OF THE ELECTORAL COLLEGE, PAST AND
PRESENT  
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Eric Foner
May 21, 2020
London Review of Books
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_ The U.S is ostensibly a democracy, yet past presidential elections,
most recently in 2016, saw the loser of the popular vote elected. Two
authors look at the convoluted Electoral College system, singular
among advanced nations, and propose remedies. _

St. Martins Press,

 

Every​ four years

Americans wake up to the fact that a president can be elected despite
receiving fewer votes than another candidate. Until 2000 the
electorate couldn’t be blamed for being unaware of this possibility,
because it hadn’t happened since 1888. But twenty years ago George
W. Bush squeaked into office with a five vote majority in the
electoral college even though Al Gore outpolled him by half a million
votes. Then in 2016 Hillary Clinton received nearly three million more
votes than Donald Trump but still lost by a substantial margin – 304
to 227 – among the electors. Ask a man or woman in the street why
this system of electing a president was adopted and how it works and
you will almost certainly draw a blank. It’s complicated, but the
main point to bear in mind is that the president is elected
indirectly. To be sure, on election day Americans think they’re
casting a ballot for their preferred candidate. But, technically, what
they’re doing is voting for electors pledged to support that
candidate. The electors vote a month or so later and in almost all
cases cast their ballots for the candidate who carried their state. No
matter who won the national popular vote, they have the final say.

The United States prides itself on providing a global model of
democratic government. But of the nearly two hundred sovereign states
that make up the United Nations it is difficult to think of a single
one that elects its chief executive as Americans do. Even countries
with constitutions explicitly modelled on the US one have not
thought the electoral college worthy of emulation. Liberia,
established as a settlement for manumitted slaves, closely followed
the American example, but opted for direct election of the president
‘by the people’. The post-World War Two constitutions of West
Germany and Japan, their drafting strongly influenced by the American
occupying authorities, did not adopt the system. The electoral college
(an odd name for an institution whose members only assemble once every
four years, in the fifty state capitals) certainly makes
the US exceptional.

 

 
Why Do We Still Have the Electoral College? 
by  Alexander Keyssar
Harvard University Press; 544 pages
July 31, 2020, 
Hardback:   $35.00
ISBN: 978 0 674 66015 1
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Let the People Pick the President: The Case for Abolishing the
Electoral College 
by Jesse Wegman
St Martin's Press; 304 pages
March 17, 2020
Hardback:   $24.50
ISBN:  978 1 250 22197 
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Harvard University Press
 

How the president should be elected was one of the most divisive
issues to confront the constitutional convention of 1787. The
delegates agreed that the new nation must be a republic, which ruled
out a hereditary head of state. Some favoured selection by the
legislature, the method used in parliamentary systems, but others
feared this would make the president dependent on Congress. The most
democratic option, of course, was election by the people (or at least
the minority of the population eligible to vote in each state,
generally white men with property), but most of the framers believed
that unrestrained democracy was as dangerous as tyranny. Placing
prominent men of ‘discernment’ between the electorate and the
final outcome, Alexander Hamilton insisted, would hold popular
passions in check and prevent a demagogue, perhaps beholden to a
foreign government, rising to power. James Madison had a more
self-interested objection to popular election. The political power of
the South, where slaves made up 40 per cent or more of the population,
had hugely increased, thanks to a clause adding three-fifths of the
slave population to the number of free inhabitants when allocating on
the basis of population the seats given to each state in the House of
Representatives. Since the slave population would have no impact on
the outcome, warned Madison, a Virginia slaveowner, a popular vote for
president would deprive the South of ‘influence in the election on
the score of the Negroes’.

The electoral college system was adopted shortly before the
convention’s deliberations ended, and has remained almost unchanged
ever since. Each state was given the right to choose electors by a
method it determined (which ended up meaning either selection by the
state legislature, or by popular vote). The number of electors in each
state was equivalent to that state’s delegation in Congress – two
senators plus however many members it had in the House of
Representatives. The candidate who received a majority of the
electoral vote would become president and the candidate who came
second would become vice president. If no one won a majority, the
House, with each state casting one vote, would select the president
from among the top finishers. Thus, the electoral college imported
into the election of the president two undemocratic features from
elsewhere in the constitution – the allocation of two senators to
each state regardless of population and the three-fifths clause –
and added a third, the provision that in the event of a final election
by the House, each state, large or small, would have the same
influence on the outcome.

The constitution’s framers neither anticipated nor desired the rise
of political parties, which they saw as divisive institutions that
elevated factional interests above the common good. But parties
quickly emerged anyway, and caused havoc in the electoral system. Ever
since, instead of men of local prominence and independent judgment,
each party has nominated as candidates for elector minor functionaries
who can be relied on to vote for their chosen presidential candidates.
The electors are not supposed to think for themselves. Not one voter
in a thousand can name any of them past or present.

In 1788 and 1792, the state legislatures in most cases chose the
electors, and they unanimously made George Washington president. After
that, the trouble started. Initially, each elector cast two votes
without differentiating between president and vice president, because
it was assumed that candidates would compete as individuals, not as
representatives of political parties and that the two most qualified
would occupy the two highest offices. In 1796 this resulted in the
winning candidate, John Adams of the Federalist party, ending up with
Thomas Jefferson, leader of the opposition Republicans (not to be
confused with today’s party), as vice president. Four years later,
the Republican ticket consisted of Jefferson for president and Aaron
Burr for vice. They outpolled Adams and his running mate, Charles
Pinckney, but in order for Jefferson to become president, one or more
Republican electors had to avoid voting for Burr. They failed to get
the message. Jefferson and Burr both ended up with 73 electoral votes,
sending the contest to the House of Representatives. Rather than
withdrawing, Burr schemed to become president with Federalist
assistance. Only after 35 indecisive ballots did Hamilton, who
disliked Jefferson but thought Burr incorrigibly dishonest, convince
enough Federalists to abstain, thus allowing Jefferson to be elected.
This set in motion a train of events that culminated in the 1804 duel
in which Burr took Hamilton’s life. It also led to the adoption of
the Twelfth Amendment, requiring electors to vote separately for
president and vice-president, in recognition of the fact that
candidates were already running as party tickets and would continue to
do so.

The framers had assumed that the House would decide most elections
because in a vast, diverse nation it would be difficult for any
candidate to win a majority of the electoral vote. But after
presidential elections became party contests, nearly all produced a
clear winner. After 1800, the only time the House chose the president
was in 1824, when the party system was temporarily in disarray. John
Quincy Adams, who had come second to Andrew Jackson in both the
popular and electoral votes, struck a deal with Henry Clay, who came
fourth, giving Adams a majority of the House votes. Adams then named
Clay his secretary of state. What Jackson’s supporters called the
‘corrupt bargain’ was precisely the kind of political manoeuvring
the framers had hoped to avoid.

Almost from the beginning, there were efforts to game the electoral
college system. In the early republic, states switched back and forth
between popular and legislative selection of electors, using whichever
seemed to favour their preferred candidate. (When the legislature
chose the electors, the majority party could simply assign the
state’s electors to its preferred candidate.) In 1836, the Whig
Party ran four regional candidates for president, in the hope that
together they would prevent the Democratic candidate, Martin Van
Buren, from winning a majority of the electoral votes (they didn’t
succeed). In 1864 and 1876, Congress admitted a thinly populated
territory (Nevada, then Colorado) as a state shortly before election
day to bolster the Republican candidate’s electoral vote. The
constitution, moreover, failed to explain what should happen if the
result in a state was contested. This came about in 1876, when
disputed returns from three Southern states made it impossible to know
who had been elected president. After months of political crisis,
Congress appointed a 15-member electoral commission to determine the
outcome – a procedure with no basis in the constitution. Rutherford
B. Hayes, a Republican, became president and as part of the ‘bargain
of 1877’ his party agreed to recognise Democratic control of the
disputed state governments. This marked the end of Reconstruction in
the South.

By the 1830s, ‘democracy’ had lost its pejorative implications and
every state bar South Carolina was choosing its electors by popular
vote. Alongside this development came the tradition, not required by
the constitution, that the candidate who carried a state received all
of its electoral votes. Sometimes called the ‘general ticket’, the
winner-takes-all system in the electoral college has been near
ubiquitous for almost two centuries – today only Maine and Nebraska
allocate some of their electors by results in congressional districts.
(In 2008, Barack Obama carried a Nebraska district, winning one of
that solidly Republican state’s five electoral votes.)
Winner-takes-all maximises a state’s impact on the outcome, but also
makes more likely a mismatch between the winner of the popular vote
and the electoral vote. A candidate can carry a dozen or so large
states by small margins and capture the presidency while trailing far
behind in the popular vote. This is what happened in the momentous
four-candidate election of 1860. Abraham Lincoln received virtually no
popular votes in the slave states and only 40 per cent nationally. But
by carrying the entire North, he captured an electoral vote majority.
Indeed, if the popular votes of the other candidates had been combined
and given to one of them, Lincoln would still have become president
even though 60 per cent of the electorate opposed him.

Winner-takes-all discourages the emergence of third-party candidates
unless they have a regional base: in 1992, Ross Perot, running as an
independent, received nearly twenty million votes (19 per cent of the
total), but no electoral votes since he failed to carry a state. It
also has a powerful effect on the way that presidential campaigns are
conducted. For reasons ranging from tradition to demography and
ideology, the winner in most states is predictable well before
election day. Neither candidate sees much point in campaigning in
reliably ‘red’ or ‘blue’ states, since even a loss by a narrow
margin translates into no electoral votes. As a result, the contest is
confined to half a dozen or so ‘swing’ or ‘battleground’
states that both candidates have a realistic chance of carrying. In
2016, two-thirds of the campaign events held by Clinton and Trump took
place in only six states. This year, the swing states include Arizona,
Florida, Michigan, North Carolina and Pennsylvania. Voters who live in
places like my home, the Democratic stronghold of New York, are
essentially ignored. To be sure, I have the luxury of ‘throwing my
vote away’ on a minority party candidate, knowing that this will not
affect the electoral vote tally. (Things would be different if I lived
in Florida.) Not surprisingly, voter turnout is higher in battleground
states.

For most of American history, the electoral college system has
enhanced the political power of white Southerners. Without the votes
of the extra electors that resulted from the addition of three-fifths
of the South’s slaves to the population calculation, for example,
Jefferson would not have defeated John Adams in 1800. In the late
19th century, the Southern states systematically stripped the right
to vote from black citizens in flagrant violation of the Fifteenth
Amendment, enacted during Reconstruction, which outlawed denial of the
franchise on the grounds of race. But this did not affect these
states’ representation in the House, since it is based on total
population, not on voters or the number of Southern electors.
Ironically, the abolition of slavery increased Southern political
power because the entire black population, not just three-fifths of
it, was now counted in the allocation of House seats and electoral
votes. Like the three-fifths clause, disenfranchisement allowed the
white South to benefit politically from the presence of the black
population while denying it any semblance of democratic rights. For
much of the 20th century, the Southern states resembled a series of
rotten boroughs, whose tiny electorates wielded disproportionate power
in Congress and in the election of the president. (According to the
Fourteenth Amendment, states that deprive significant numbers of
citizens of the right to vote are supposed to lose a portion of their
congressional representation and electors. But this penalty has never
been enforced.)

Given​ its undemocratic nature and long history of dysfunction and
racial bias, it isn’t surprising that almost from the start
proposals began to circulate about changing the way electors were
chosen, or even doing away with the electoral college entirely. Over
time, more than eight hundred such amendments have been introduced in
Congress. Amending the constitution is a daunting task, requiring the
approval of two-thirds of Congress and three-quarters of the states.
But it has nevertheless been accomplished 27 times, effecting changes
that have significantly democratised American politics: extending the
right to vote to African Americans, women and 18-year-olds; shifting
the election of senators from legislatures to voters; barring the
imposition of poll taxes and allocating electoral votes to residents
of Washington, D.C. But the stark fact is that with the exception of
the Twelfth Amendment, which only tweaked the system, the strange way
we elect the president has survived intact for over two centuries.
These two new books try to explain why.

Alexander Keyssar’s _Why Do We Still Have the Electoral
College?_ examines efforts to change or abolish the system. Keyssar,
who teaches at Harvard, is the author of _The Right to Vote_, which
twenty years after publication remains the standard account of the
history of suffrage in the United States. His new book is
comprehensive and full of historical insight. Even specialists in
political and constitutional history will encounter surprises. But in
telling this story it’s impossible to avoid repetition. Madison
described the debates about the presidency at the constitutional
convention as ‘tedious and reiterated’, a comment that can be
applied to the entire history of efforts at reform. The problem is
exacerbated by the book’s partly chronological, partly thematic
structure.

As Keyssar shows, the most common proposal has been for proportional
allocation of each state’s electoral votes. Such proposals typically
give one elector to the winner in each of a state’s congressional
districts, as Maine and Nebraska currently do, with two chosen
statewide. Election by congressional district would obviate the main
problem of the winner-takes-all system, which is the effective
disfranchisement of millions of voters whose ballots do not translate
into electoral votes. It would undoubtedly increase the number of
contested states and thus voter turnout. Allocating electors by
congressional district, however, would introduce the problem of
gerrymandering into the election of the president. In almost every
state, state legislatures draw district lines. And ever since the
early days of the republic, the dominant party has drawn them so as to
maximise its electoral prospects. Today, thanks to sophisticated
computer analysis of voting returns, politicians can effectively
choose their voters rather than the other way round. Redistricting
takes place every decade, when the census determines how many members
of the House each state will be given. The 2010 elections gave
Republicans control of a majority of state governments, and they
proceeded radically to redraw district lines. In such circumstances,
the district system would not eliminate the possibility of the loser
of the popular vote becoming president. If electors had been allocated
by congressional district in 2012, Mitt Romney would have been elected
even though he trailed Obama by five million popular votes.

To avoid​ this problem, Henry Cabot Lodge, the Republican Senator
for Massachusetts, proposed in the 1940s that each state’s electoral
votes should be automatically distributed in proportion to the popular
vote in that state, with a national run-off if no candidate received
40 per cent overall. Race played a major and somewhat paradoxical part
in the debate. Lodge hoped that his plan would enable the Republicans
to pick up electoral votes in the then solidly Democratic South,
especially if black people regained the right to vote there.
Nonetheless, some Southern Democrats initially supported the measure,
believing it would weaken the power of black voters in the urban
North. The massive migration of African Americans from the South to
Northern industrial cities, where they enjoyed the right to vote,
coupled with a continuing shift in their allegiance away from the
party of Lincoln, had changed the political configuration of states
like New York, Illinois and Michigan. ‘There are enough Negroes in
New York City,’ proclaimed Ed Lee Gossett, a congressman from Texas
who introduced Lodge’s measure in the House, to determine the
electoral vote of the entire state. ‘With all due deference to our
many fine Jewish citizens,’ Gossett added, the same was true of
them. In February 1950, the Senate approved Lodge’s proposal, the
first time in more than a century that either chamber had passed a
constitutional amendment to change the way we elect the president. But
the proposal died in the House. Liberals, as well as black and Jewish
organisations, became convinced that it would weaken the power of
Democratic urban enclaves in the North without affecting the South’s
ability to continue to prevent black voting.

Only in the mid 20th century, Keyssar shows, did a national popular
vote become the preferred alternative for the electoral college’s
detractors. Thanks to the civil rights revolution of the 1960s,
Southern blacks finally regained suffrage, weakening the advantage the
electoral system gave to white voters there. Then in 1968, George
Wallace, a pioneer of white backlash politics, won 46 electoral votes
as an independent candidate. Wallace didn’t succeed in throwing the
election into the House, where he hoped to influence the outcome, but
the prospect of this happening in future led to an upsurge of support
for replacing the electoral college with a popular vote for president.
The leading proponent in Congress was Senator Birch Bayh, a liberal
Democrat from Indiana. But support for his proposal transcended party
and ideological lines. President Nixon endorsed it, along with
the US Chamber of Commerce, the League of Women Voters and the
American Bar Association. A Gallup poll found that 81 per cent of
respondents favoured the change.

Bayh’s amendment passed the House in 1969. More than half of the
votes against it came from Southern Democrats who hoped that the
enfranchisement of blacks could somehow be reversed. In the Senate,
three segregationists – Strom Thurmond of South Carolina, James
Eastland of Mississippi and Sam Ervin of North Carolina – mobilised
opposition. (Ervin’s role may surprise those who remember him only
for his principled part in the Nixon impeachment investigation. But
before that he was mostly known as an outspoken opponent of racial
integration.) As with the Lodge amendment, black leaders outside the
South joined the campaign against reform, fearing a diminution of
their political influence in the Northern industrial states. The
Senate failed to break a filibuster and the amendment died.

Keyssar opens his book with a warning not to expect an analysis of
current debates or a clear prescription for change. For these, one can
turn to _Let the People Pick the President_ by Jesse Wegman. A
member of the _New York Times_ editorial board, Wegman is a fluid
writer who manages to make constitutional debates and the history of
political parties lively, even amusing. His account skims much of the
history related by Keyssar but offers a sustained argument in favour
of the latest proposal to replace the electoral college, the National
Popular Vote Interstate Compact. States that sign up to the compact
pledge that their electors will cast their ballots for the winner of
the national popular vote, regardless of whether they carry their
state or not. The compact will go into effect when states with a
combined 270 electoral votes – a majority of the electoral college
– have joined. The advantage of this plan is that it avoids the
laborious process of constitutional amendment. As of today, 15 states
and the District of Columbia, representing 196 electoral votes, have
joined, so there is still a long way to go.

Wegman devotes considerable space to debunking misconceptions about
the electoral college. The most common is that the system benefits
small states, because, since they start with the two votes
representing their senators, they have more influence on the outcome
in proportion to their population than if a president were elected
directly. This belief is a major obstacle to winning over the
three-quarters of the states required to change the constitution.
Wegman argues persuasively that the winner-takes-all system negates
the small state advantage. It makes much more sense for candidates to
focus on populous states when winning them by even a narrow margin
yields an electoral vote bonanza. In 2000, Bush’s majority of 537
out of six million votes cast in Florida gave him all of the state’s
25 electoral votes.

What is to be done? Keyssar refers briefly to the compact but does not
seem to consider it a viable alternative. It carries a whiff of
duplicity – many citizens would be outraged if a candidate who
failed to carry their state nonetheless received its electoral votes.
Whatever the plan’s shortcomings, however, it would encourage both
parties to maximise turnout in every state and ensure that whoever
wins the popular vote becomes president. But the hyper-partisanship of
current US politics makes agreement on any proposal for change
unlikely. All the states that have endorsed the compact are Democratic
strongholds, not surprisingly, since the party’s candidates have won
the popular vote in six of the last seven presidential elections. For
the same reason, Republicans are convinced that the current system
favours them. The two most recent Republican national platforms oppose
any change in the electoral college system.

As another presidential election looms, these books deserve a wide
readership. But the electoral college is only one symptom of a far
deeper problem. American democracy is sick in ways that go well beyond
the way the president is chosen. The symptoms include widespread
efforts in Republican states to suppress the right to vote and to rig
elections, employing such tactics as onerous identification
requirements, partisan gerrymandering and the removal of many
thousands of citizens from the voting rolls for trivial reasons. A
partisan Supreme Court, in addition, has allowed unlimited corporate
spending on campaigns and abrogated key parts of the Voting Rights Act
of 1965, which restored black suffrage in the South. These problems
will not be solved by allowing the people to elect the president, but
that would be a valuable first step. Rooted in distrust of ordinary
citizens and, like so many other features of American life, in the
institution of slavery, the electoral college is a relic of a past the
United States should have abandoned long ago.

_Book author  ALEXANDER KEYSSAR’S The Right to Vote was a finalist
for both the Pulitzer Prize and the Los Angeles Times Book Prize and
won the Beveridge Award from the American Historical Association. He
is Matthew W. Stirling, Jr., Professor of History and Social Policy at
the John F. Kennedy School of Government, Harvard University__._

_Book author  JESSE WEGMAN __is a member of the New York Times
editorial board, where he has written about the Supreme Court and
legal affairs since 2013. He previously worked as a reporter, editor,
and producer at outlets including National Public Radio, The New York
Observer, Reuters, The Daily Beast and Newsweek. He graduated from New
York University School of Law in 2005._
 

_[Essayist ERIC FONER  is professor of history at Columbia
University. His most recent book is The Second Founding: How the
Civil War and Reconstruction Remade the Constitution. Other reviews of
his in the London Review of Books are available HERE
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