Friday, November 16, 2012

Judge Richard Posner's bad reason to keep the electoral college

Judge Posner gives "five reasons for retaining the Electoral College despite its lack of democratic pedigree." He says they're all "practical reasons, not liberal or conservative reasons." I disagree with all of them, but especially this one:

3) Swing States

The winner-take-all method of awarding electoral votes induces the candidates—as we saw in last week’s election—to focus their campaign efforts on the toss-up states; that follows directly from the candidates’ lack of inducement to campaign in states they are sure to win. Voters in toss-up states are more likely to pay close attention to the campaign—to really listen to the competing candidates—knowing that they are going to decide the election. They are likely to be the most thoughtful voters, on average (and for the further reason that they will have received the most information and attention from the candidates), and the most thoughtful voters should be the ones to decide the election.
Sure, they pay the most attention now — because the current system makes their vote matter a lot more than those of voters in most states. Maybe the voters in those other states would start paying more attention if they knew their vote was as important as everyone else's!

And how does Posner get to decide which voters are more "thoughtful" than others? There are a couple huge problems with this. The most fundamental problem is that this isn't Posner's decision to make. In fact, it isn't anyone's decision to make: no one should have the authority to decide which states' voters get to be counted as more thoughtful than other states'. Everyone who's eligible to vote should have the chance to make a thoughtful decision and to have their vote count equally.

It's also naive to think that what distinguishes swing-state voters is that they're just really smart at deciding on a candidate. In fact, there is no category of voters that can be counted on to make objective, well-informed decisions. Everyone is influenced by their self-interest. People in some states care about ethanol in ways that people in non-decisive states don't, and this has a huge effect on federal policy.

Posner's "reason" for the electoral college actually restates the main problem with the electoral college: it privileges some voters' opinions far above other voters'. The fact that the electoral college is empowering to voters in some states is not a good thing; it's a bad thing, because the more you empower the voters in those states, the more you disempower voters in other states. There should only be such an imbalance in the democratic process if there's an extraordinarily strong justification. Considering how arbitrary state boundaries are, the possibility of vague differences among voters in different states is not a sufficient justification.


Ann Althouse said...

I think what he means is that a subset of the people -- a sampling -- have been selected -- even if by some weird chance -- to do the extra work of getting super-informed about the election, and then they are benefiting us by doing the work of making the decision, kind of like the way we have representatives in a legislature making decisions for us.

It's true we didn't select these people to make a decision for us, but they are distributed across the country and are some kind of cross-section.

Ann Althouse said...

So the idea is that the decision made by this set of individuals is better than what we would get from a popular vote, which would aggregate votes by large numbers of people with insufficient motivation to become super-informed and attentive.

Pete said...

Not that either of you asked me, but I like to think of swing states as being analogous to the small set of market participants who set the price in open markets by trading at the margins.

David said...

Within recent memory, the south including Texas was a Democrat sure thing, California was very competitive in presidential elections, much of the midwest was conservative. These big tidal shifts in political alignment are not over and never will be. Today's lock can become tomorrow's swing state. The people in the states feeling ignored will become "deciders" again in due time. When is mostly up to them.

caseym54 said...

Posner misses nearly all of the best reasons to keep the Electoral College. Here's three:

1. It is a fraud firewall. A state cannot gain anything by inflating its vote totals.

2. It limits recounts to one or a few states. Or none. Imagine a national recount in 2000 (or 1960).

3. It is a tie-breaker in close elections, giving the edge to the candidate with more states.

Anonymous said...

In all of this we are forgetting that the office is "President of the United States," and not "President of the People of the United States."

The States - not the citizens in them - are the voters. The States used to elect their senators before the 17th amendment. They still elect their president.

I think this, and not the electoral college itself, is the problem you're talking about.

(I disagree that it is a problem - federalism is kind of important. Federalism is the reason to keep the electoral college.)

RecChief said...

unfortunately, the alternative woul dhave candidates only campaign in LA, Dallas, Miami, Chicago, and the Eastern mega cities. since they tend to vote monolithically anyway (check vote counts in Philly!) people in Madison, Des Moines, Minot, etc. woould never see a candidate. Also, since urban areas tend to vote one way, and those areas are also where the population is concentrated, I am not sure that having urban areas decide elections is a good thing. Like the Senate system of distributing equal power to both small and large states (rather, more power to small states to counter balance the greater power of populous states) I think the EC is a good thing at this point.

Anonymous said...

I find some that Posner's arguements for the EC (especially the one discussed here) are more arguments for "winner take all" which is not in the constitution.

I personally disagree with "winner take all" as it makes it all to easy to take some states for granted, or written off entirely. Making the matter of "more important voters" even more of a problem that it would be if the Maine/Nebraska model of assigning EC votes (2 for winning the state, 1 for winning each congressional district) were widely adopted.

Disposing of the EC entirely is a near impossibility anyway as it would require a constitutional amendment and I doubt 2/3rds of the states would approve of such a change. Changing the way EC votes are assigned can be done state by state, no constituitonal change required.

The largest of states may balk at the ME/NB model, or maybe even be reluctant to do it unless all the states do it ("You first" "No, YOU first.") So a constitutional amendment to have all states adopt this could be passed, 2/3rds of the states might agree with this, though getting Congress on board may be a bigger problem.

That problem is that suddenly congressional districts serve two purposes, for electing members of the House of Representatives, and the President. This would change the dynamics of how these districts are drawn up. I wouldn't go so far as to say it would eliminate gerrymandering, but it would lessen the effect, as the desire to make "safe" districts for congressmen has to be balanced by the need to maximize the potential votes for President.

So, getting Congress to approve of such a change may not be in incumbent congressmen's best interests (probably easier done after redistricting than before)

John Althouse Cohen said...

No they are not distributed across the country or a representative cross-section of the country. For instance, racial minorities are concentrated in some states (like New York) rather than others (like Iowa).

Whether or not anyone consciously "decided" on all this at the outset, Posner decided to advocate for maintaining the status quo.

Ben Morris said...

There will be a marginal consumer for presidents—and that small group will be targeted to the exclusion of others—no matter how the election is structured.

toto said...

80% of the states and people have been merely spectators to presidential elections. They have no influence. That's more than 85 million voters, 200 million Americans, ignored. When and where voters are ignored, then so are the issues they care about most.

The number and population of battleground states is shrinking.

Policies important to the citizens of non-battleground states are not as highly prioritized as policies important to the handful of ‘battleground’ states when it comes to governing.

During the course of campaigns, candidates are educated and campaign about the local, regional, and state issues most important to the handful of battleground states they need to win. They take this knowledge and prioritization with them once they are elected. Candidates need to be educated and care about all of our states.

In 1960, presidential campaigns paid attention to 35 states. In 2008, Obama only campaigned in 14 states after being nominated. In 2012, the presidential campaigns only cared about 9 swing states.

The number and population of battleground states is shrinking.

States' partisanship is hardening.

Some states have not been been competitive for than a half-century and most states now have a degree of partisan imbalance that makes them highly unlikely to be in a swing state position.
• 41 States Won by Same Party, 2000-2008
• 32 States Won by Same Party, 1992-2008
• 13 States Won Only by Republican Party, 1980-2008
• 19 States Won Only by Democratic Party, 1992-2008
• 9 Democratic States Not Swing State since 1988
• 15 GOP States Not Swing State since 1988


toto said...

With the current state-by-state winner-take-all system of awarding electoral votes, it could only take winning a bare plurality of popular votes in the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with a mere 26% of the nation's votes!

toto said...

The current state-by-state winner-take-all system of awarding electoral votes maximizes the incentive and opportunity for fraud, coercion, intimidation, confusion, and voter suppression. A very few people can change the national outcome by adding, changing, or suppressing a small number of votes in one closely divided battleground state. With the current system all of a state's electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state. The sheer magnitude of the national popular vote number, compared to individual state vote totals, is much more robust against manipulation.

National Popular Vote would limit the benefits to be gained by fraud or voter suppression. One suppressed vote would be one less vote. One fraudulent vote would only win one vote in the return. In the current electoral system, one fraudulent vote could mean 55 electoral votes, or just enough electoral votes to win the presidency without having the most popular votes in the country.

The closest popular-vote election in American history (in 1960), had a nationwide margin of more than 100,000 popular votes. The closest electoral-vote election in American history (in 2000) was determined by 537 votes, all in one state, when there was a lead of 537,179 (1,000 times more) popular votes nationwide.

For a national popular vote election to be as easy to switch as 2000, it would have to be two hundred times closer than the 1960 election--and, in popular-vote terms, forty times closer than 2000 itself.

Which system offers vote suppressors or fraudulent voters a better shot at success for a smaller effort?

toto said...

The current presidential election system makes a repeat of 2000 more likely, not less likely. All you need is a thin and contested margin in a single state with enough electoral votes to make a difference. It's much less likely that the national vote will be close enough that voting irregularities in a single area will swing enough net votes to make a difference. If we'd had National Popular Vote in 2000, a recount in Florida would not have been an issue.

The idea that recounts will be likely and messy with National Popular Vote is distracting.

The 2000 presidential election was an artificial crisis created because of Bush's lead of 537 popular votes in Florida. Gore's nationwide lead was 537,179 popular votes (1,000 times larger). Given the miniscule number of votes that are changed by a typical statewide recount (averaging only 274 votes); no one would have requested a recount or disputed the results in 2000 if the national popular vote had controlled the outcome. Indeed, no one (except perhaps almanac writers and trivia buffs) would have cared that one of the candidates happened to have a 537-vote margin in Florida.

Recounts are far more likely in the current system of state-by-state winner-take-all methods.

The possibility of recounts should not even be a consideration in debating the merits of a national popular vote. No one has ever suggested that the possibility of a recount constitutes a valid reason why state governors or U.S. Senators, for example, should not be elected by a popular vote.

The question of recounts comes to mind in connection with presidential elections only because the current system so frequently creates artificial crises and unnecessary disputes.

We do and would vote state by state. Each state manages its own election and is prepared to conduct a recount.

The state-by-state winner-take-all system is not a firewall, but instead causes unnecessary fires.
“It’s an arsonist itching to burn down the whole neighborhood by torching a single house.” Hertzberg

Given that there is a recount only once in about 160 statewide elections, and given there is a presidential election once every four years, one would expect a recount about once in 640 years with the National Popular Vote. The actual probability of a close national election would be even less than that because recounts are less likely with larger pools of votes.

The average change in the margin of victory as a result of a statewide recount was a mere 296 votes in a 10-year study of 2,884 elections.

No recount would have been warranted in any of the nation’s 57 previous presidential elections if the outcome had been based on the nationwide count.

The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December. With both the current system and the National Popular Vote, all counting, recounting, and judicial proceedings must be conducted so as to reach a "final determination" prior to the meeting of the Electoral College. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their "final determination" six days before the Electoral College meets.

toto said...

With National Popular Vote, big cities would not get all of candidates’ attention, much less control the outcome.
The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities (going as far down as Arlington, TX) is only 15% of the population of the United States.

Suburbs and exurbs often vote Republican.

If big cities controlled the outcome of elections, the governors and U.S. Senators would be Democratic in virtually every state with a significant city.

A nationwide presidential campaign, with every vote equal, would be run the way presidential candidates campaign to win the electoral votes of closely divided battleground states, such as Ohio and Florida, under the state-by-state winner-take-all methods. The big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami do not receive all the attention or control the outcome in Ohio and Florida.

The itineraries of presidential candidates in battleground states (and their allocation of other campaign resources in battleground states) reflect the political reality that every gubernatorial or senatorial candidate knows. When and where every vote is equal, a campaign must be run everywhere.

With National Popular Vote, when every vote is equal, everywhere, it makes sense for presidential candidates to try and elevate their votes where they are and aren't so well liked. But, under the state-by-state winner-take-all laws, it makes no sense for a Democrat to try and do that in Vermont or Wyoming, or for a Republican to try it in Wyoming or Vermont.

Even in California state-wide elections, candidates for governor or U.S. Senate don't campaign just in Los Angeles and San Francisco, and those places don't control the outcome (otherwise California wouldn't have recently had Republican governors Reagan, Dukemejian, Wilson, and Schwarzenegger). A vote in rural Alpine county is just an important as a vote in Los Angeles. If Los Angeles cannot control statewide elections in California, it can hardly control a nationwide election.

In fact, Los Angeles, San Francisco, San Jose, and Oakland together cannot control a statewide election in California.

Similarly, Republicans dominate Texas politics without carrying big cities such as Dallas and Houston.

There are numerous other examples of Republicans who won races for governor and U.S. Senator in other states that have big cities (e.g., New York, Illinois, Michigan, Pennsylvania, and Massachusetts) without ever carrying the big cities of their respective states.

With a national popular vote, every vote everywhere will be equally important politically. There will be nothing special about a vote cast in a big city or big state. When every vote is equal, candidates of both parties will seek out voters in small, medium, and large towns throughout the states in order to win. A vote cast in a big city or state will be equal to a vote cast in a small state, town, or rural area.

Candidates would need to build a winning coalition across demographics. Any candidate who ignored, for example, the 16% of Americans who live in rural areas in favor of a “big city” approach would not likely win the national popular vote. Candidates would have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as waitress mom voters in Ohio.

toto said...

Maine and Nebraska voters support a national popular vote.

A survey of Maine voters showed 77% overall support for a national popular vote for President.
In a follow-up question presenting a three-way choice among various methods of awarding Maine’s electoral votes,
* 71% favored a national popular vote;
* 21% favored Maine’s current system of awarding its electoral votes by congressional district; and
* 8% favored the statewide winner-take-all system (i.e., awarding all of Maine’s electoral votes to the candidate who receives the most votes statewide).
A survey of Nebraska voters showed 74% overall support for a national popular vote for President.
In a follow-up question presenting a three-way choice among various methods of awarding Nebraska’s electoral votes,
* 60% favored a national popular vote;
* 28% favored Nebraska’s current system of awarding its electoral votes by congressional district; and
* 13% favored the statewide winner-take-all system (i.e., awarding all of Nebraska’s electoral votes to the candidate who receives the most votes statewide).


Dividing more states’ electoral votes by congressional district winners would magnify the worst features of the Electoral College system.

If the district approach were used nationally, it would be less fair and less accurately reflect the will of the people than the current system. In 2004, Bush won 50.7% of the popular vote, but 59% of the districts. Although Bush lost the national popular vote in 2000, he won 55% of the country's congressional districts.

The district approach would not provide incentive for presidential candidates to campaign in a particular state or focus the candidates' attention to issues of concern to the state. With the 48 state-by-state winner-take-all laws (whether applied to either districts or states), candidates have no reason to campaign in districts or states where they are comfortably ahead or hopelessly behind. In North Carolina, for example, there are only 2 districts (the 13th with a 5% spread and the 2nd with an 8% spread) where the presidential race is competitive. Nationwide, there have been only 55 "battleground" districts that were competitive in presidential elections. With the present deplorable 48 state-level winner-take-all system, 80% of the states (including California and Texas) are ignored in presidential elections; however, 88% of the nation's congressional districts would be ignored if a district-level winner-take-all system were used nationally.

Awarding electoral votes by congressional district could result in third party candidates winning electoral votes that would deny either major party candidate the necessary majority vote of electors and throw the process into Congress to decide.

Because there are generally more close votes on district levels than states as whole, district elections increase the opportunity for error. The larger the voting base, the less opportunity there is for an especially close vote.

Also, a second-place candidate could still win the White House without winning the national popular vote.

A national popular vote is the way to make every person's vote equal and matter to their candidate because it guarantees that the candidate who gets the most votes in all 50 states and DC becomes President.

toto said...

The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

Every vote, everywhere, would be politically relevant and equal in presidential elections. No more distorting and divisive red and blue state maps. There would no longer be a handful of 'battleground' states where voters and policies are more important than those of the voters in 80% of the states that now are just 'spectators' and ignored after the conventions.

When the bill is enacted by states with a majority of the electoral votes– enough electoral votes to elect a President (270 of 538), all the electoral votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states and DC.

The presidential election system that we have today was not designed, anticipated, or favored by the Founding Fathers but, instead, is the product of decades of evolutionary change precipitated by the emergence of political parties and enactment by 48 states of winner-take-all laws, not mentioned, much less endorsed, in the Constitution.

The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for President. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in recent closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%. Americans believe that the candidate who receives the most votes should win.

The bill has passed 31 state legislative chambers in 21 states. The bill has been enacted by 9 jurisdictions with 132 electoral votes - 49% of the 270 necessary to go into effect.

Follow National Popular Vote on Facebook via NationalPopularVoteInc

Ben Morris said...

It's so unfair that Justice Kennedy gets to decide every Supreme Court case, such that lawyers always tailor their cases to him, to the exclusion of Justices Ginsburg, Scalia, et al.

In fact, 80% of the presidents who have appointed Supreme Court justices have been disenfranchised. Unacceptable!