Transcript The Electoral College: How Does It Work in Practice? Why Do We Have an Electoral College? How Did It Come To Work the.

The Electoral College:
How Does It Work in Practice?
Why Do We Have an Electoral College?
How Did It Come To Work the Way It Does?
What Can We Do About It?
Nicholas R. Miller
POLI 325
November 26, 2012
How the EC Works in Practice
• Instead of electing a President (and Vice President) in a single
national election on Presidential election day,
– we have 51 separate state (+ DC) elections,
• in which voters (incorrectly but reasonably enough) think they are voting
directly for a Presidential/Vice Presidential ticket.
– the plurality winner in each state (except ME and NE) wins all of
the state’s electoral votes (“winner-take-all”)
• which are equal in number to the state’s total representation in Congress,
– i.e., its House seats + 2
– plus DC has 3 electoral votes, so
– total EV = 538, and
– these electoral votes are added up to determine the winner of the
election,
• with 270 required for election.
• Thus in practice (at least 95% of the time), the EC is merely a vote
counting system that
– takes the popular votes in each state,
– automatically translates them into nationwide electoral votes, and
– declares a winner on the basis of electoral votes.
Implication of the EC in Practice:
“Battleground”/“Swing” States
• The principal strategic implication of the EC in practice is that it
creates battleground (or swing) states, because
– it matters only which party ticket carries a state,
– and not what the margin of victory or defeat is.
• Hence states that are expected to be close become “battlegrounds”
while other are substantially ignored.
– Today (frequent and relatively accurate) state polls make it
easier to identify battleground states.
• Until a decade or two ago, there were relatively few state (as opposed to
national) polls.
– Contemporary campaign resources (especially TV on local channels
and cable services) ads can be both
• focused on particular states, and
• can moved from one state to another,
in contrast to
• party organization rooted in states and localities in the 19th century, and
• national TV advertising (mid- to later-20th century).
More Esoteric EC Details (cont.)
• Lurking beneath
electoral votes
are real people
called
Presidential
electors,
– for whom voters
actually vote for
on Presidential
election day,
– who are actually
elected on
Presidential
election day,
and
– who actually
cast the
electoral votes
(about six weeks
later).
More Esoteric EC Details (cont.)
• Underlying the “winner-take-all” system is the fact that (in
almost universal practice) Presidential electors are
elected not individually but on statewide party slates
(“general ticket system”).
• The Constitution gives state legislature the power to
determine how their state’s electors are selected.
– A variety of methods other than winner-take-all for selecting
Presidential electors have been used by some states in the past,
which could often produce split electoral votes from a state.
– Indeed, at the present time, ME (since 1972) and NE (since
1992) do not award electoral votes on a winner-take-all basis,
• but rather on the basis of the Modified District Plan.
Esoteric Details (cont.)
• Party nominees may occasionally be deprived of electoral
votes by “faithless electors,”
– who cast electoral votes in a way that contradicts their “pledge” to
support their party ticket, and
– in a way that does not reflect popular vote in the state
– and produces a split electoral vote from a state.
• If no candidate wins 270 electoral votes, either
– because a third candidate wins some electoral votes or
– because there is a (mathematically possible) 269-269 tie between
two candidates,
the election is “thrown into the House of Representatives”
(which last happened in 1824),
– where voting by state delegation (one delegation — one vote),
– and the House ballots repeatedly until one candidate is supported
a majority of state delegations.
Evaluating the Electoral College
• Today, as a rough generalization,
– “liberals” mostly criticize the Electoral College and advocate its
replacement by a national popular vote,
– while “conservatives” mostly oppose a national popular vote and
defend the existing Electoral College.
– These attitudes were perhaps reinforced by the 2000 “election
inversion.”
• However, in the mid-20th century “liberals” mostly
defended the existing Electoral College system, which
they viewed as having features that
– enhanced the voting power of major constituencies of the New
Deal,
– which counterbalanced the rural and conservative advantage
• in the malapportioned House of the that era, and
• In the malapportioned Senate of every era.
– Their fondness for the EC may have been slightly restored by
the 2004, 2008, and 2012 elections.
Evaluating the Electoral College (cont.)
• My own take on the Electoral:
– The original EC was a compromise among diverse considerations
that was cleverly designed but had a fatal flaw that had to be (and
was) corrected by the 12th Amendment to the Constitution in 1804.
– The original EC established a selection system
• that was designed to operate in a non-partisan environment, but
• did not operate satisfactorily once political parties formed to contest
Presidential selection.
– The EC was rapidly transformed into an institution quite different
from its designers had intended.
• So, even if you like the existing EC, you can’t really give credit to “the
wisdom of the framers [of the Constitution].”
• Likewise, even if you dislike the existing EC, you can’t really blame the
framers.
– The transformed EC has proved to be a serviceable institution but
is problematic in a number of ways.
“Problems” with the EC in Practice
• It typically produces a disparity between popular and electoral vote
proportions, which
– almost always exaggerates the winner’s margin, for example
Popular Vote Electoral Vote
2012
Obama
52%
332
Romney
48%
206
– But is this really a problem?
“Problems” with the EC in Practice (cont.)
• It is said to “disenfranchise” voters in non-battleground states.
• It is based on an apportionment of electoral votes that entails a
small state advantage with respect to the.
• It (arguably) produces a large state advantage resulting from the
(almost universal) winner-take-all system of casting electoral votes.
• Most important, it produces election inversions (or “reversals of
winners,” “wrong winners,” “EC misfires,” etc.) in which
– a candidate who wins less than a plurality of the popular vote
– is elected on the basis of electoral votes.
Popular Vote
2000:
1888:
1876:
1960(?):
Electoral Vote
Bush (R)
Gore (D)
Harrison (R)
Cleveland (D)
Hayes (R)
Tilden (D)
47.87%
48.38%
47.80%
48.63%
51%
48%
271
267
233
168
185
184
Kennedy (D)
????%
303
Nixon (R)
???? %
219
Problems with Details of the EC
• Unpledged or faithless electors might determine the outcome of the
election.
• State legislatures can manipulate the manner of selecting electors.
– Colorado Proposition 36 in 2004 (Democratic supported initiative)
– Republican efforts in CA in 2008 and PA in 2012
– If a state decides to select electors by district, the districts may be
gerrymandered.
• A state legislature might decide to appoint electors.
– There is “no constitutional right to vote for President” (or even
Presidential electors).
• The most problematic feature of the Electoral College is Contingent
Procedure (when an election is “thrown into the House”).
– We have little understanding of how this would work in practice.
– State equality regardless of population appears to be unsupportable
(especially today, e.g., CA vs. WY)
– A President would not be selected until about two weeks before
Inauguration Day (if then).
Why Do We Have an Electoral College?
• The answer goes back to 1787 and the framing of the U.S.
Constitution.
• The charge to the Constitutional Convention was to revise and
strengthen the Articles of Confederation.
• Under the A of C, the only central government institution was
Congress.
–
–
–
–
–
Each state legislature appointed its Congressional delegates.
Each state delegation had one vote.
A 9/13 supra-majority was required for substantive matters.
13/13 unanimity was required to amend the A of C.
Congress had very limited powers; in particular,
• It could not lay and collect taxes, and
• It could not pass laws that directly exercised its powers.
• In both respects, Congress had to rely on the cooperation of state
legislatures.
– There was no national executive or judiciary.
Why Do We Have an Electoral
College? (cont.)
• The Constitution
– expanded the powers of Congress and
– allowed Congress to exercise its powers by passing laws that
bound individuals directly, and
– that would be executed by a national executive (President), who
also had other independent powers, and
– that would be enforced by a national court system.
• Given the much stronger powers of Congress under the
Constitution, it was hoped that the executive (and
judiciary) would “check and balance” the “naturally
predominant” legislature.
Designing The Original Electoral College
• Designing the mode of selecting the President was one
of the most difficult tasks that confronted the framers.
• Their most famously difficult task was designing the
scheme of representation for a new national legislature.
– The difficulty in the legislative case lay in the fact that most
delegates knew exactly what they wanted, but different
delegates wanted different things:
• small-state delegates wanted to preserve the principle of state
equality, while
• large-state delegates wanted state representation proportional to
state population.
• In contrast, the difficulty in the executive case was that
most delegates were not at all sure what they wanted,
– though the conflict between small states and big states was still
relevant.
Designing The Original Electoral College
• The menu of options for Presidential selection:
– Selection by states,
• but this would be too much like the Article Confederation;
– Selection by the Congress,
• which was the “default option” found in both VA and NJ plans.
• But many feared it would make the President too dependent on
and (if eligible for re-election) subservient to Congress.
• How would a bicameral Congress (as provided for by the “Great
Compromise”) elect a President?
– Selection by some kind of popular election,
• which was advocated primarily on “separationist” grounds, i.e.,
as a means of making the President more independent of
Congress, but
• it presented many practical difficulties.
– Some kind of mixed system, which might distinguish between
• a first round of selection (“nomination”) and
• a second round of selection (“election” or “runoff”), and
• might use “intermediate electors.
Designing The Original EC (cont.)
• The Electoral College proposal was put together by the Committee
on Postponed Matters over a period of a few days and accepted by
the Convention (with one modification) within the last week or so of
the Convention.
• The perceived advantages of an Electoral College of intermediate
electors:
– unlike Congress, the EC would perform a single task – i.e., cast votes
for President -- and would then disband, so
• the President would be subservient to neither Congress nor the Electoral
College; and
– unlike popular election, the EC
• avoided difficult questions about the extent of suffrage, and
• allowed a compromise between the large vs. small states through its fine
details, and
• and public opinion could be informed and refined through representation.
• Since legislative election was the default choice, it is more accurate
to say the framers settled on the EC
– as an alternative to legislative election, rather than
– as an alternative to popular election.
The Original Electoral College Rules
• Each state is to select a number of “electors” equal in
number to its total representation in Congress.
• The legislature of each state is to determine the mode of
selection of its electors.
• Each elector is required to cast exactly two equal and
unranked votes
– for two different candidates (vs. cumulative/approval voting),
– at least one of whom had to be a resident of another state.
• Once cast, the electoral votes are transmitted to
Congress, to be counted before a joint session of
Congress.
• To be elected President by the EC, a candidate must
receive
– votes from a majority of electors and
– more votes than any other candidate.
• Given this double vote system, these requirements were
logically distinct.
– In particular, more that one candidate could receive the required
majority.
The Original Electoral College (cont.)
• In the event that
– no candidate is supported by a majority of electors, or
– two (or more) candidates with the required majority are tied,
– there is to be “runoff election” [the contingent procedure] in
Congress
• among the top five electoral vote recipients, or
• between the tied candidates.
• The Committee proposed that the runoff be in the
Senate.
• The Convention considered changing this to the House
or to Congress as a whole by joint ballot.
• It ended up changing the locus of the runoff to the
House, voting one vote per state delegation.
• Election by the House requires support by a majority of
state delegations.
The Fatal Flaw in the Original Electoral College
• However, the Committee was concerned that some
electors might “throw away” their second votes.
– It was believed a second office had to be at stake to induce
electors to take their second votes seriously.
• For this reason (only), the office of Vice President was
proposed.
– The Vice Presidency was “introduced only for the sake of a
valuable mode of election which required two to be chosen at the
same time,”
• which largely explains the awkward and largely impotent
place this office occupies in the overall constitutional
scheme.
• This turned out to be a miscalculation that produced a
fatal flaw in the original EC,
– and created what historian Richard McCormick has called a
“hazardous game” of Presidential selection.
The Electoral College: An Example
THE ORIGINAL ELECTORAL COLLEGE BEFORE THE 12th
AMENDMENT AND USING THE PROVISIONAL
APPORTIONMENT OF HOUSE SEATS
House Size = 65
Number of Electors = 65 + (2 × 13) = 91
Number of Electoral Votes = 2 × 91 = 182
Maximum Vote Any Candidate Can Receive = 91 (one from every elector)
Required Majority = 46 (one vote from a majority of electors)
If no one gets 46 votes or if there is a tie among those who do:
Required Vote in House = 7
In any event, the runner-up becomes Vice President
[Note: these numbers were never actually used.]
Expectations Concerning the Original EC
• This original Electoral College system was designed to
operate in an expected (or at least hoped for) nonpartisan environment.
• It therefore was expected that
– typically there would be many potential Presidential candidates,
– who would not declare themselves as such, let alone actively
campaign for the office, and
– electors would vote for the two best of these candidates
• on the basis of their character and connections,
• not party affiliation or policy promises.
• Therefore, it was also expected that electoral votes
would be widely scattered and the contingent procedure
would be used “19 times out of 20” (in George Mason’s
estimate), so
– big states would have the dominant role in “screening/
nominating” candidates (in the EC), while
– small states would have equal role in most final/runoff elections
(in the House).
Expectations Concerning the EC (cont.)
• However, James Madison (a “big-state” representative
and advocate) thought/hoped that big state electors
would coordinate their electoral votes so as to keep the
election out of the House (where small states would
have the advantage).
• It turns ot that Madison, not Mason, was correct in his
expectation,
– but not for the reason he gave.
• It was generally hoped and expected that electors would
typically be
– popularly elected
– from single-member districts, and
– that they would be well-informed local notables who would act as
representative trustees of their states and districts.
The Hazardous Game
• But there were problems from the very start.
• From the outset, electors (and those who selected them and
everyone else) thought of a presidential election, not as an
occasion to cast two votes for two worthy presidential
candidates, but as an occasion to elect a preferred PresidentialVice Presidential ‘ticket.’
• In the very first election of 1789, it was widely agreed that
– George Washington should be the first President, and
– John Adams should be the first Vice President.
– So electors were expected to cast one vote for Washington and one
vote for Adams.
• But note how this expectation was precarious:
– If just one elector were to cast one vote for Adams and one vote for
anybody but Washington, Adams would be elected President and
Washington would be relegated to the Vice Presidency.
– On the other hand, if every elector did in fact cast one vote for
Washington and one for Adams, there would be an electoral vote tie,
sending the election to the House.
Schattschneider’s Law
• More serious problems in 1796 arose when Washington
retired and the first contested Presidential election took
place.
• The framers’ expectations did not anticipate the
development of a national two-party system.
• Schattschneider’s Law: if you create a large popularly
elected legislative body,
• party caucuses will arise in the legislature, and
• political parties will develop in the electorate.
– Caucuses and parties are organized attempts to win by
concentrating votes (through a bloc vote [in the legislature] or
nominating process [in elections]) on a few motions or candidates,
– They arise because ambitious politicians find it expedient to
conspire with others to win these contests.
E. E. Schattscheider, Party Government (1942), Chapter 3
Schattschneider’s Theory of Party Formation
• We start with a pristine legislature that
• is elective (though perhaps with less than universal suffrage)
and
• operates under majority rule.
– Because it is pristine (i.e., unsullied by political organization), its
votes tend be dispersed.
• A legislative caucus: a subset of members who agree to
– caucus before every vote,
– agree on a common position, and
– always cast a bloc (concentrated) vote.
• Concentrated votes typically beat dispersed votes, so
– the caucus can expect to win given
• a multi-alternative choice with plurality rule, or
• a binary (e.g., yes/no) choice with majority rule
– due to the unearned increment in politics.
Schattschneider’s Theory (cont.)
• Caucus organization and counter-organization
– caucus expansion
– a minimal winning coalition
– the size principle (Riker)
• Majority vs. Minority caucus -- options for minority:
– break up majority (“a heresthetical Riker move”); or
– transform the minority caucus into a political party (a “conspiracy
of politicians”)
• that nominates candidates for office (concentrate votes).
• Party counter-organization:
– the socialization of conflict.
William H. Riker, The Theory of Political Coalitions (1962)
William H. Riker, The Art of Political Manipulation (1986) [“heresthetics”]
E. E. Schattschneider, The Semisovereign People (1960)
Schattschneider’s Theory (cont.)
• Majority vs. minority party -- options for minority:
– break up majority (“wedge issues”); and/or
– more effectively mobilize (its portion of the) electorate; and/or
– expand the electorate
• examples:
– Jacksonian Revolution
– 15th Amendment
– British suffrage
• apparent exceptions
– women's suffrage
– black disenfranchisement in South
• Party formation and party competition takes legislative
conflict “to the country”:
– the simplification of alternatives
– “Democracy is between the parties, not within the parties."
Duverger’s Law
• Duverger’s Law: If you have single-winner elections, you
get (in equilibrium) two political parties, i.e.,
– two rival organized attempts, each trying to concentrate votes on
a single candidate.
• Conversely, parliamentary systems using proportional
representation in large districts tend to produce and
sustain multi-party systems.
• In part, Duverger’s Law is driven by strategic (or tactical)
voting by ordinary voters who are reluctant to “waste”
their votes by voting for third candidates/parties that
have no real chance of winning the single office at stake.
Duverger’s Law (cont.)
• In much greater part, Duverger’s Law is driven by the strategic
calculations of ambitious candidates and parties.
– If a party splits and runs two (more or less clone) candidates, they will
be spoilers against each other and throw the election to the other party.
• This prospect of electoral disaster creates a huge incentive for even
a highly factionalized party to unite behind a single candidate.
– Conversely, if there are three significant candidates or parties are
contesting an election, there is a huge incentive for two of them to
“make a deal” under which one makes a strategic withdrawal in favor of
the other (in return for something).
• In general, each party in a competitive two-party system has a huge
incentive to remain united and not split into rival factions that run
candidates in general elections.
• With respect to the Electoral College system, Schattschneider’s Law
+ Duverger’s Law implies that (contrary to the Framers’
expectations) the House contingent procedure will be bypassed at
least “19 times out of 20.”
The Hazardous Game: 1796
• Schattschneider: “Jefferson was blocked in the cabinet,
therefore he went to the country to start a backfire”
– to found the Republican (or Democratic-Republican) Party,
– which nominated a single Presidential/Vice Presidential ticket to
oppose Hamilton and the Federalists, and then
– nominated party men (not independent and thoughtful trustees)
as candidates for elector positions.
• The first contested Presidential election:
– Federalists: John Adams (MA) & Thomas Pickney (SC)
– Republicans: Thomas Jefferson (VA) & Aaron Burr (NY)
– They were “nominated” by their respective Congressional
Caucuses.
– Each party nominated elector candidates pledged to vote their
party’s candidates.
The Hazardous Game:1796 (cont.)
• Intra-Federalist maneuvering:
– Hamilton (continuing to feud with Adams) unsuccessfully urged
some Southern electors to vote for Pickney & anybody but Adams
– However, some New England electors learned about this and
withheld votes from Pickney.
• Republican lack of discipline: second votes of their
electors were widely dispersed.
• The electoral vote outcome was very close:
– Federalists won 71 electors, all of whom voted for Adams, giving
Adams the required majority of 70 for election as President.
– Republicans won 68 electors, all of whom voted for Jefferson.
– But the withholding of second votes from Pickney lowered his vote
total to 59, dropping him to third place behind Jefferson,
• so the defeated Republican Presidential candidate became
Vice President,
• while Burr won only 30 votes.
Lessons from the Hazardous Game
• Electors were expected to be party men,
– who “always voted at their party’s call, and never thought of
thinking for themselves at all”;
– i.e., “pledged electors.”
– However, Samuel Miles (Fed., PA) violated his pledge.
• An angry Federalist supporter complained: “What, do I chuse Samuel
Miles to determine for me whether John Adams or Thomas shall be
President? No! I chuse him to act, not to think.”
• Pledges must extend to second votes.
• State legislative elections (perhaps coming a year or more
in advance of Presidential elections), become very
important for politicians with national ambitions, because
– legislatures chose how to select electors and may change the
method from election to election; and
– legislatures may choose to appoint the electors themselves.
Lessons from the Hazardous Game (cont.)
• A party that controls a state legislature may not want to
risk a popular election for electors.
– States using legislative election increased to 10 in
1800.
• And if a controlling party is confident it can win popular
election, the particular mode of popular election can be
manipulated (e.g., to winner-take-all) to short-term party
advantage.
– Jefferson to Monroe (1800): “All agree that an
election by districts would be best if it could be
general, but while ten states choose either by their
legislatures or by a general ticket, it is folly or worse
for the other six not to follow.”
The Hazardous Game: 1800
• Largely a repeat of 1796:
– same candidates (except one Pickney replaced by another); and
– same battle lines.
• However, the strategic implications of the EC rules were
(even) better understood:
– manipulation of elector selection; and
– danger of dispersing second votes.
• The election of 1800 was as close as 1796 but tipped the
other way.
– Republicans won 73 electors vs. 65 for Federalists.
– The Republicans (unlike the Federalists) failed to withhold one
“Vice Presidential” electoral vote.
•
•
•
•
•
Jefferson: 73
Burr: 73
Adams: 65
Pickney: 64
Jay: 1
The Hazardous Game: 1800 (cont.)
• But the original EC rules did not distinguish between
“Presidential” vs. “Vice-Presidential” electoral votes.
• So the election was “thrown into House,” under the
contingent procedure,
– choosing between the tied candidates Jefferson and Burr only.
– Burr did not chose to withdraw.
• Note that the single Federalist elector who voted for Adams
and Jay could have voted for Adams and Burr,
– in which case Burr would have immediately been elected President
on the basis of electoral votes (without a House election) and
– Jefferson would have remained Vice President.
• Until 20th Amendment (1933), a newly elected Congress did
not convene until late in the year following Congressional
elections,
– so the 1800 Presidential election was thrown into the “lame duck”
House elected in 1798.
The Hazardous Game: 1800 (cont.)
• The lame-duck House was still controlled by the Federalists (55-50),
though Republicans controlled the House elected in 1800,
– but the Federalists did not control a majority of state delegations.
• Republicans controlled 8 state delegations.
• Federalists controlled 6 state delegations.
• Two state delegation were equally split.
• There were 16 state delegations, so 10 votes were required for
election.
• Each delegation would decide how to vote by majority vote within the
delegation.
• Evidently, all Republican representatives supported Jefferson as the
intended Presidential candidate.
• Likewise, all Federalist representatives supported Burr, in order to
deny the presidency to more formidable Jefferson.
– The two internally tied delegations had to abstain.
– For 35 ballots, the House deadlocked: Jefferson 8 and Burr 6 with
2 abstentions.
– Ultimately, the four Federalists within in the tied delegations
abstained, resulting in Jefferson’s election on the 36th ballot.
The 12th Amendment
• After the 1800 fiasco, Congress proposed, and the
states quickly ratified (in time for 1804 election), the 12th
Amendment to the Constitution.
– Electors now cast separate (single) votes for President and Vice
President.
– The required electoral vote majority for President (and for Vice
President) is a simple majority of votes cast (= number of electors),
which at most one candidate can achieve.
– If no candidate receives the required simple majority for President, the
House (still voting by state delegations) chooses from among the top
three [vs. top five] candidates.
– If no candidate receives the required majority for Vice President, the
Senate (voting individually) chooses from among the top two
candidates.
– Early drafts of the amendment included a requirement that electors be
popularly elected from districts, but this provision was later dropped.
• The 12th Amendment remains the constitutional
language governing Presidential elections.
The Transformation
of the Electoral College
• By the 1830s, the Electoral College, already formally
modified by the 12th Amendment that accommodated a
two-party system, had been further transformed into the
kind of (essentially) automatic popular vote counting
system that exists today.
• This transformation
– was driven largely by the development of a two-party system,
and
– was brought about without any further constitutional
amendments or (with one minor exception) change in federal
law,
– but rather by changes in state laws and party practice.
Elements of the Transformation (cont.)
• In early elections, the mode of selecting Presidential
electors was regularly manipulated by party politicians in
each state, on the basis of partisan calculations.
• By 1832, Presidential electors were almost universally
selected by popular (vs. legislative) vote (and by much
expanded electorates).
– South Carolina was the lone hold out.
• By 1836, the mode of popular election in every state was
(following Jefferson’s strategic advice) the general ticket
(or party slate), rather than election from districts (or by
some kind of proportional representation).
– This induced the almost universal “winner-take-all” rule for the
casting electoral votes at the state level.
– However, at the present time two small states (ME and NE) use
the “Modified District Plan.”
Mode of Elector Selection (cont.)
• Why were state legislatures willing to give up the power to select
Presidential electors?
– The intensity of party competition declined after 1800.
– Legislative appointment of electors was disrupting state legislative
elections.
• cf. the willingness of state legislatures to ratify the 17th Amendment
(popular election of U.S. Senators)
• Why did election of electors by districts give way to election of electors
at-large (usually on a slate or “general ticket”)?
– In general, the advantage of concentrating votes.
– Partisan strategic considerations,
• as expressed by Jefferson to Monroe in 1800.
– More important: state strategic considerations.
• No matter what other states may do, each state could enhance its
influence in Presidential politics by casting electoral votes on a winnertake-all basis.
• There is no “equilibrium” until all states use the winner-take-all method.
• It turns out that this “equilibrium” results in a new balance of Electoral
College voting power that is more favorable to the large states, more
than counterbalancing the small-state advantage in apportionment of
electoral votes.
Bypassing the Contingent Procedure
• Given a two-party system accommodated by the 12th
Amendment, it is virtually assured that one or other
Presidential (and Vice Presidential) candidate will receive
the required majority of electoral votes.
• Thus Madison’s hope to keep the election out of the
House was realized,
– not by coordination among the big states, but
– by coordination (a nominating process) within each of two political
parties.
• In this way, the Electoral College system was transformed
into something in two ways more favorable to large states
than the Framers expected, i.e.,
– not only do large states gain more power in the first (electoral vote)
stage (due to winner-take-all electoral votes), but also
– the second (House contingent election stage) stage (where small
states have equal power) is almost always bypassed.
“Inverse” Duverger’s Law and the
Election of 1824
• The “inverse” of Duverger’s Law implies that
– if one of the parties in a two-party system is greatly weakened, or is
unable or unwilling to compete for votes effectively,
– the dominant party is very likely to break apart, because the external
threat that otherwise keeps its factions together is removed.
• The election of 1824 (the second and last time an election was
thrown into the House) is the “exception that proved the rule” that a
two-party system bypasses the contingent procedure.
– The Federalist Party had collapsed and the Democratic-Republican
Party was unchallenged.
– Consequently there was no longer pressure for D-Rs to unite behind a
single Presidential-Vice Presidential ticket.
– Four candidates, all nominally belonging to the same D-R party, sought
the Presidency.
– Unsurprisingly, no candidate received a majority of the electoral votes
and the election was thrown into the House.
The Election 1824 (cont.)
• The four candidates were:
John Quincy Adams (Secretary of State)
Henry Clay (U.S. Representative and Speaker of the House)
William Crawford (Secretary of the Treasury)
Andrew Jackson (hero of the Battle of New Orleans and
representative of the “common man”)
Presidential election results (“first round”):
Jackson
Adams
Crawford
Clay
Others
Electoral Votes
99
84
41
37
0
Popular Votes*
41%
31%
11%
13%
4%
*Bear in mind that six states still appointed electors and that states that used
popular election varied considerably with respect to the extent of franchise.
The Election of 1824 (cont.)
• Clay was the natural compromise candidate,
– i.e., most everyone’s second choice, so
– he probably could have defeated each other candidate in a
“straight fight”)
• But Clay was squeezed out of third place in the electoral
vote ranking by Crawford.
• Under the 12th Amendment, the House could chose only
from among top three candidates.
• Clay probably would have been elected president
– if the House could still chose among the top five candidates; or
– if Crawford had not been a candidate (i.e., so Crawford was a
spoiler to Clay).
• Even if Adams or Jackson had won all the electoral votes cast
for Crawford, Clay would have been among top three
candidates.
• However, if Jackson had won at least 32 of Crawford’s
electoral votes, Jackson would have been elected without a
House runoff.
The Election of 1824 (cont.)
• New York’s 36 electoral votes were split among all four candidates.
– If Adams had won Crawford’s five electoral votes in addition to the 26
he actually won, this probably would have caused Adams to lose the
election, as Clay then would then have placed third in electoral votes
and probably won the House runoff.
– This provides a historical example of ‘monotonicity failure’ under
[instant] runoff elections.
• Clay had great influence in the House, detested Jackson, and
endorsed Adams.
• Adams (just) won on the first ballot (24 state delegations):
Adams
13
Jackson
7
Crawford
4
– Adams subsequently appointed Clay Secretary of State.
– Jackson and his supporters denounced the “corrupt bargain” between Adams
and Clay.
• The Adams vs. Jackson rivalry led to a new party system:
– National Republicans (later Whigs) vs. Democrats
House Runoff
• Whenever there is a “serious” third-party ticket (especially
one with a geographical base of support such that it may
win electoral votes), the possibility arises that the election
may be thrown into the House arises.
• Moreover, since the 23rd Amendment (giving the District
of Columbia three electoral votes) was ratified in 1961,
the total number of electoral votes has been an even
number (538),
– so a 269-269 electoral vote tie is possible, and
– an election might be thrown into the House even in the absence of
a third-party candidate winning election votes.
• Prior to the 1825 House election, the House adopted
special rules for its conduct.
– These rules remain in effect and would (presumably) by used in
any future House election.
The EC as a Vote-Counting Mechanism
• In 1845 Congress established a uniform nationwide
Presidential election day (i.e., day for selecting
Presidential electors), namely
– the Tuesday after the first Monday in November.
• On Tuesday, November 6, 2012, voters in each state
went go to the polls and voted for either the Democratic
or Republican (or possibly some other) slate of elector
candidates, pledged to their party’s (Pres. + VP)
nominees.
– With popular election of slates of pledged electors, American
voters may be forgiven for thinking they are actually voting
directly for a Presidential-Vice Presidential ticket.
• Often only fine print on the ballot indicates otherwise
– and in some states not even that.
Vote-Counting Mechanism (cont.)
• In each state (including ME and NE), the elector slate receiving the
most votes was elected.
• The electors will meet in their state capitals in mid-December and
cast their electoral votes as pledged.
• Electoral vote tallies will be transmitted from each state capital to
Congress and will be counted before a joint session on January 6,
2009.
• The President of the Senate [Vice President Biden] will announce
the votes for President and Vice President and proclaim the winners
to be the President-elect and Vice President-elect.
• So everything was determined on election night in November, and
the remaining steps are merely ceremonial; T
– TV prognosticators could
• report the popular vote winner in each state,
• add up the corresponding electoral votes, and
• declare a President-elect.
What Can We Do About It?
• State legislatures can change mode of appointment of
electors, e.g.,
• CO Proposition 36 in 2004,
• CA in 2008 and PA 2012.
– But individually they have disincentive to depart from winner-takeall.
– And such changes do not address either the election inversion or
contingent procedure problem;
• indeed, they would might make contingent procedure more
likely.
– And they would create greater departures from national uniformity.
• Congress can do almost nothing by legislation.
• The constitutional amendment process can make any
change but requires broad consensus.
– Proposals such as those in 1940s and 1950s to modify EC are
now rarely discussed.
Direct Popular Vote
• By constitutional amendment, the Electoral College could be
abolished and replaced by a national election for President
(and Vice President),
– with or without an runoff (“instant” or otherwise), and
– perhaps (if a runoff is used) using a 40% (rather than 50%) quota
for election in the first round.
• Such a national popular vote might/should entail national
administration of Presidential (and Congressional?) elections,
including
–
–
–
–
nationally uniform voter qualifications,
national voter registration (and voter ID requirements, if any),
nationally uniform ballot types and voting technology,
nationally uniform rules for ballot access (listing of candidates),
etc.
• Such a proposal passed the House in 1969 but failed in the
Senate.
The National Popular Vote Plan
• This is a clever but (in my view) flawed proposal to (in
effect) enact a direct national popular election for
President
– without using a constitutional amendment.
• It rests on two provisions in the Constitution:
– state legislatures have sole power over how their Presidential
electors are selected, and
– with the consent of Congress, states may enter into interstate
compacts.
• NPVP proposes that states collectively controlling at
least 270 electoral votes enter into an interstate compact
– that would commit them to select Presidential electors who
would cast their electoral votes,
• not for the candidate who carries their state, but
• for the “national popular vote winner.”
– States with 132 electoral votes have currently endorsed the
compact.
National Popular Vote Plan (cont.)
• Since “national popular vote winner” means plurality winner,
– NPVP would also preclude the House contingent procedure (barring
a national popular vote tie).
• However, NPVP does not (and cannot) address the problems
entailed by direct popular vote previously identified; in
particular,
– runoff or related provisions; and
– national rules for and administration of Presidential elections.
• Fundamental problem: There is no officially certified “national
popular vote winner.”
• The NPVP takes account of the possibility of national popular vote
tie, in which case electoral votes would be cast in the normal
manner.
• But realistically, if the national popular vote were very close
(let alone tied), a national recount would be expected.
– How could a state not in the compact be required to participate in a
recount?
Problems with the NPVP
• Would the compact hold, especially in the event of an
extremely close/disputed (with respect to the national
popular vote) election?
– In every election, some states in the compact would be required
to cast electoral votes for the candidate that lost the popular vote
in that state.
– In some (close) elections, such electoral votes would be
decisive.
• In particular, would the compact hold in the event that
there would otherwise be an election inversion (the very
event the NPVP is designed to preclude)?
• In sum, “I foresee many unforeseen difficulties” with
NPVP.
The American “Party Systems”
• Historical party systems separated by realigning
elections or periods:
Framers' Non-Partisan System (1789-1792)
First Party System (1796-1816)
Democratic-Republicans vs.
Federalists
(agrarian/labor)
(commercial/financial)
(mostly South & “West”)
(Northeast & especially N.E.)
Congressional Caucus nominating system
Era of Good Feelings and One-Party Factionalism (1820-1824)
collapse of Federalist Party
collapse of Congressional Caucus
American Party Systems (cont.)
Second Party System (1828-1852)
Democrats
vs. Whigs (Nat. Reps.+ Anti-Masonic)
(agrarian and lower-class)
(commercial and upper-class)
largely non-sectional
rise of mass parties and campaigns
origins of party organization based on patronage
greatly increased franchise and turnout
creation national nominating convention
extensive third party activity
Civil War Disruption (1856-64)
Democrats
(pro-South)
vs. Republicans (N. Whigs + Free Soil)
(North)
American Party Systems (cont.)
Third Party System (1868-1892)
Democrats
vs.
Republicans
(agrarian + labor + immigrants)
(commercial/industrial)
(South plus some North)
(most of North)
very close and high-turnout elections from 1874 onward
frequent divided government
after 1876, consolidation of “Solid South”
rise of political machines based on patronage
highpoint of party-dominant nominating politics
introduction of Australian ballot
agrarian protest third party movements
American Party Systems (cont.)
Fourth Party System (1896-1928)
Democrats (+ Populists)
vs.
Republicans
agrarian plus immigrants)
(commercial/industrial)
(South plus some West and some cities)
(Northeast & Midwest)
maximal sectionalism
black disenfranchisement in the Jim Crow South
rise of Progressive political reforms
voter registration, primaries, initiative and referendum, etc.
decline of voting turnout
rise of “mixed system” of nomination (with Presidential primaries)
political machines begin to decline
American Party Systems (cont.)
Fifth (New Deal) Party System (1932-1968)
Democrats
vs.
Republicans
(labor/ethnic/urban plus South) (business & prof. [outside of South])
class based politics (outside of South)
New Deal vs. anti-New Deal
increased turnout
civil rights movement and cracks in the old “Solid [Democratic] South”
conflict between “new reformers” and “old bosses”
origins of mass media campaigns, etc.
American Party Systems (cont.)
Sixth Party System (1972-2000?)
Democrats
vs.
Republicans
(“liberals”)
(“conservatives”)
(pro-New Deal remnant)
(anti-New Deal remnant)
(great majority of non-whites)
(majority of whites)
largely non-sectional but low turnout
rise of social/cultural issues
rise of candidate-oriented Pres. nominating politics
migration of white Southerners from Dem ==> Rep
rise of candidate-centered politics and media campaigns
era of divided government (Rep. Presidents vs. Dem. House)
American Party Systems (cont.)
Seventh Party System (2000? - ???)
Democrats
vs.
Republicans
(“blue states”)
(“red states”)
coastal America
middle America
secular America
religious America
(great majority of non-whites)
(majority of whites)
increased turnout
dominance of social/cultural issues
solidification of “solid Republican South” (Cong. + Pres.)
strengthened party identification in electorate
greatly strengthen party unity in Congress
extremely close Presidential and Congressional elections
resumption of unified government?