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Electoral College–Time to Drop Out?

Amid all the presidential debate “performance” hoo-hah this morning—talk about exalting form over substance—was another sober reminder of what we’ve come to:

Sixty-plus percent of 13 million voters—that’s roughly eight million souls, 2.6% of the population and 5.3% of registered voters—could decide who your next President is.  Bonus: they’re overwhelmingly White, older, rural, and less-educated than you are, and are likely to pay less in federal taxes and get more in benefits than you do.

Wait a minute,” you ask.  “As individual Californians, don’t each of our votes for President and Vice President count?”

Yes—but not as much as the miniscule slice of the electorate described above, and other voting blocs in eight or nine other so-called “swing” or “battleground” states that have captured all the attention (and most of the advertising revenue) in this interminable national campaign.

But,” you add, “Isn’t that unfair and unconstitutional?  What about ‘one person, one vote?’”

Yes, no, and not applicable.  Welcome to college: the Electoral College.

It’s pretty simple arithmetic, really.  To earn the keys to the White House, No. One Observatory Circle, and full access to the nuclear launch codes, you and your running mate have to arrange to have at least 270 of 538 folks who’ll show up in 51 capitals on December 17 to vote on your behalf.  (Maybe.)  These are the people you’re really voting for in three weeks.  Of those “electors,” 412 (77.6%) are elected reliably in either “Red,” or Republican, states (192—35.6%) or “Blue,” or Democratic states (226—42.0%).  To get that reduced rent and free personal security, then, you have to focus your efforts on the other 22.4%: the 120 electors in nine states who are up for grabs in any given election:  Here’s the breakdown:

 

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TABLE 1

 

And, here’s more detail on those states’ relative share of our national population and voting pool:

 

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TABLE 2

 

Snapshot:  Candidates Obama and Biden collected 365 electoral votes in 2008, as opposed to 173 for McCain and Palin, by scoring “winner-take-all” electoral victories in all nine “battleground” states.  For the record, in presidential elections, 66, or 55%, of those electors in play—from Florida; New Hampshire; Pennsylvania; and Virginia—are categorized as leaning “Blue,” while the other 54, 0r 45%—Colorado; Iowa; Nevada; North Carolina; and Ohio—lean “Red.”  So, depending on how well each ticket slices, dices, and prevails among other electoral demographics (urban; suburban; ethnic; gender, etc.) there and elsewhere, neither has to do as well this time around.  Starting with the states Senator Kerry carried in 2004, the President’s campaign has identified four regional paths to get to 270, all of which involve retaining at least two “battleground” states.

Just for laughs: here’s a peek at what swing-state residents pay per capita in federal taxes and how much they get back, per dollar paid:

 

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TABLE 3

 

For you irony fans in the group, the same data from which the Table 3 data was taken suggest that reliably Republican, or “Red” state residents are “takers,” while “Blue”-staters tend to pay more in federal taxes than they receive in federal benefits.

As I’ve written already, our founders decided that only Members of Congress would be chosen by popular vote, according to relative population distribution among the 14 original states.  Each state would be entitled two Senators and at least one Member of Congress, regardless of population, with more of the latter to be awarded based on periodic censuses and apportionment.  There were two dominant points of view about how to choose the President: either by the Congress or by popular vote.  This division of opinion, like others I’ve cited, produced a compromise: the President would be “appointed” by ballots cast by electors chosen by the states, in numbers corresponding to the size of their congressional delegations.  As I spelled out in some detail, Article II, Section 2 defined the composition of and general procedures for the original Electoral College, which were refined to some degree by the 12th and 23rd Amendments.

Here are the salient facts about the current College:

  • When you vote for candidates for President and Vice President, you’re not voting directly for them.  You’re voting for the slate of electors chosen by the candidates—through their political parties according to their internal rules—and, in many states, provisions of state law—to cast ballots allocated to them.
  • Not all voters are represented in the College.  While the District of Columbia was given three electoral vote by the 23rd Amendment, 4.4 million U.S. citizens living in our territories (the Commonwealths of the Northern Mariana Islands and Puerto Rico, Guam, and the U.S. Virgin Islands) who do not maintain official residence in a state or D.C. cannot participate.
  • Forty-eight states and D.C. have “winner-take-all,” top-of-the-ticket elections, meaning that the candidates for President and Vice President who capture the majority of that state’s popular vote are entitled to all electors.  The exceptions are Maine and Nebraska, which have systems of proportional representation.  Only once has either of those states split its electoral votes: Nebraska, 4-1 in favor of McCain/Palin, in 2008.
  • While Article II and the 12th Amendment give the Congress control over electoral college logistics, there are only two federal constitutional provisions affecting qualifications for electors.  Article II, section 1, clause 2 provides that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”  That restriction has not been further refined or developed, either in legislation or case law,  The 14th Amendment provides that state officials who have engaged in insurrection or rebellion against the United States or given aid and comfort to its enemies are disqualified from serving as Electors—essentially, a post-Civil War relic.
  • By default, therefore, states are in full control of who gets to be an elector.  The two most common methods the states have adopted are nomination by state party convention and by state party committee.  Generally, the parties select members known for their loyalty and service to the party, such as party leaders, state and local elected officials, and party activists.  In a few states, the electors’ names appear on the ballot along with the names of the candidates; more typically, they appear in each state’s Certificate of Ascertainment before they meet and its Certificate of Vote, thereafter.  (Even if we weren’t already buried in ballot measures, listings would be problematic in California.  Besides 55 names each for the major party tickets, our 2008 Certificate adds four pages of electors pledged to four minor party tickets and four write-in candidates.)
  • Twenty-nine states and the District of Columbia have provisions governing electors’ exercise of their votes.  Of those, 19 are statutory only and 11 combine provisions of state law and pledges to political parties.  In all, only six provide for replacement or other sanctions if an elector breaks his or her pledge.   Of the nine swing states that do, six (Colorado; Florida; Nevada; Ohio, and Virginia, totaling 75 votes) have some law in place; only North Carolina’s 15 electors are subject to $500 fine, automatic resignation, and vote cancellation and replacement if they break ranks.  Among the 24 states that do not define electors’ duties and restrictions are Iowa, New Hampshire, or Pennsylvania, representing 30 electoral votes.
  • Over time, in 87 instances electors have not voted as pledged.  The last time an elector crossed party lines was in 1972, when a Republican elector cast his ballot for the Libertarian ticket.  The most recent example of a “faithless elector” was likely an accident: in 2008, a Democratic elector from Minnesota voted for John Edwards, the vice presidential candidate, rather than for John Kerry as required.  No elector has ever been punished for pledge-breaking, and there is no definitive legal precedent as to whether any or all of these restrictions are constitutional and thus enforceable.

Bottom Line: All the pieces remain in place for things to get even uglier than 12 years ago, if the November 6 results are even reasonably close.  What may have been a justifiable method of selection, in a culture where the “sprint’ communication network involved only horses, has become not just an antique but a dangerous anachronism.  If we wish to sustain the notion that we select our chief executive by direct popular election—especially without making our first-branch bodies more representative of the makeup and will of our electorate—we need to get to work.

Personally, I believe we need to do both.

Finally, if you prefer entertaining allegories to words and charts, C.G.P. Grey has weighed in here, as well:

 

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