Dangerous Electoral Tinkering and the Law of Unintended Consequences

The issue comes up after virtually every Presidential election - is there a need for a change in the way our Presidential election process works?

Following the 1992 and 1996 elections, Nebraska and Maine, frustrated that no one paid attention to them in Presidential contests, with Nebraska beings solidly red and Maine being solidly blue, passed laws that went into effect for the 2000 election that split their votes based on congressional district, with the winner of each congressional district receiving 1 electoral vote and the winner of the statewide vote receiving an additional 2 votes.  Nebraska and Maine are small, meaning the overall electoral vote isn't that significant.  In fact, Maine has never actually split its vote, since in every election from 2000 to 2012, both of its congressional districts, along with the state vote, went to Democrats.  Nebraska has split its vote only once, with Barack Obama winning 1 congressional district in 2008 and giving himself 1 of Nebraska's 5 electoral votes in a vote that hardly mattered given his large electoral margin over John McCain.

The issue of the electoral college certainly came up in the aftermath of the 2000 election, which provoked many to push for a system where the winner of the national vote won the election.  The National Popular Vote Interstate Compact, which I've written about before, was a creative system which would give the winner of the national vote the majority of electoral votes without the need for a constitutional amendment to that effect, gained steam in 2007, being enacted into law in 9 states over the time period from 2007 to 2011, giving it 49% of the electoral votes that it would need to take effect (approval in California in 2011 was a big contributor to the electoral count.)

In 2012, Republicans in Pennsylvania briefly toyed with a system similar to Nebraska and Maine's, which would have been very significant given the size of Pennsylvania and how favorable its current congressional districts are to the GOP, but abandoned the idea after it provoked a strong public reaction against it.

Now, other GOP-controlled states that voted for President Obama are taking up the issue.  The legislature in Virginia is considering a proposal, called "intriguing" by RNC Chair Reince Preibus, that would allocate 1 vote for each congressional district and 2 votes to the winner of the most congressional districts.  This scheme would have effectively given Mitt Romney 9 of Virginia's 13 electoral votes, despite losing the popular vote in the state, because of the concentration of Democrats into relatively few congressional districts in the state.

Before I discuss the merits of various proposals around the electoral college, it is probably beneficial to understand the history that brought us to where we are today.

The intention at the time of the writing of the constitution was never for the people to have a direct say in the election of the President.  The electoral college was created with the intention of it being a learned group of men (yes, they were certainly all men in those days), appointed by state legislatures, charged with finding the best candidate to be President and Vice President.  In fact, the original text of the constitution didn't even specifically charge them with casting a vote for Vice President, the Vice President was just to be the runner-up in the Presidential race, with each elector voting for two candidate for President.

This system worked fine in the early years - George Washington was a unanimous choice in 1788 and 1792.  In 1796, the first post-Washington election, the true formation of political parties began in the US and regional and partisan divides began to occur.  As the more "states rights" Democratic-Republicans controlled the South, Democratic-Republican favorite Thomas Jefferson was elected (the South had a large electoral advantage in those days) and Federalist John Adams carried the North.  The issue of not picking separately for President and Vice President was quickly exposed, with Jefferson and running mate Aaron Burr receiving identical numbers of votes for President from the Democratic-Republican electors, which thrust the race into being decided by the House of Representatives.  The 12th amendment was then ratified prior to the 1804 elections to rectify this issue and specify separate ballots for President and Vice President.

Also in 1804, the system for choosing electors, which had been left up to the states, began to evolve.  6 states had moved to the system that we generally know today, of holding a statewide popular vote and giving all electors to that candidate.  4 states had adopted the congressional district-splitting plan that some Republicans are now advocating.  1 state had a mix of state legislature-chosen electors and popular vote electors.  And finally, 6 states still had the state legislature picking electors.

This mixed method did not really expose itself as a flaw as Thomas Jefferson was a wildly popular incumbent and won election easily, carrying 162 of 176 electoral votes.

The mixed method of choosing electors continued for some time, with a gradual trend towards statewide popular vote determining electoral college representation.

By 1824, 12 states were choosing electors by statewide popular vote, 5 states were divided into congressional districts, 6 states were choosing by the state legislature and 1 had a mixed model.

By 1832, all states except 2 were using the statewide popular vote method, with 1 state using the congressional district method and 1 state appointing by state legislature.

By 1836, South Carolina was the lone holdout, continuing to appoint by state legislature, with all other states using a statewide popular voting system.  South Carolina held out until after Civil War reconstruction, at which point it joined the other states in a statewide popular voting system.

The statewide popular voting system then became the standard until 2000, when Maine and Nebraska made their changes.

The lessons that we should take from this history are:
* Rather than being a thought-out constitutional system, our modern process for choosing electors is something that evolved through trial-and-error in the states and in many election cycles.
* Having a few "outlier" states that have different methods of choosing electors did not occur for 150 years, but has quite a lot of history in the early days of the Republic.

All of this brings us to today.  The constitution continues to permit each state to decide how to allocate its electors.  So, what the GOP is proposing is certainly within the constitutional authority of each state.  So, the obvious question, both from a state-level and a national perspective on any changes our existing system is, what are the values and incentives around which we should design a system?

I'll take a shot at this, in the context of our modern political system.

Any system should seek to:
a. Reflect the will of the voters it seeks to represent in the electoral college
b. Provide for the interests of the individual state
c. Produce a clear result in the Presidential race
d. Produce a result that is consistent with a democratic (small d) election
e. Resist subversion of the political process by narrow interests

Our existing system is fairly strong at A, C, D and E. 

The statewide winner wins the electors in 48 states.  That's pretty representative.  Yes, in close states, the 49% who lose may feel unrepresented, but elections have winners and that is sort of part and parcel to losing.

The results are generally very clear in Presidential races.  The 2000 election was strikingly close in Florida, but in the 136 years between the Tilden/Hayes dispute, which was fueled both by being a very close election and by the scars of reconstruction, 2000 is the only election where the outcome was legitimately in doubt for a significant period of time.

Our system is also fairly democratic.  The candidate who won the largest plurality of votes did not win in 2000, although it was very close.  Prior to that, you have to go back to Benjamin Harrison in 1888 to find a candidate who won without winning the poular vote.

Our system also resists subversion.  It is very hard to make a new state and, by constitution, existing states can't be divided without both their consent and that of Congress, making it hard to rig the game.

Where our existing system largely fails is in B.  The interests, money and attention all go to a narrow band of states that are considered swing states.  Broadly, in today's terms, this is Florida, Ohio, Virginia, Iowa, North Carolina, Colorado, Pennsylvania, Nevada, New Hampshire, Wisconsin, Michigan and Indiana.  No Presidential candidate visits our three largest states: California, Texas and New York, except to raise money, because those states don't have outcomes that are in question - California and New York are reliably blue and Texas is reliably red.

The Interstate Voting Compact would do an excellent job in all five categories.  The winner of the national vote would win.  Every state would get attention in proportion to its population...a vote in New York City or Dallas would be just as valuable as a vote in Tampa or Denver.  Results would be clear - yes, this would have likely led to a larger recount effort in 2000, but Al Gore won the national popular vote by 0.5% or over half a million votes, a far more meaningful and less questionable margin than 0.0092% margin in Florida by which the election was decided.

The major criticism of this system would be that it leaves smaller states behind.  The electoral college was intentionally created as House seats + Senate seats in order to give large states more sway than small state, but less sway than their population would dictate, so that the smaller states still had a strong stake in the system.  This is a legitimate concern, but versus in our present system, how many small states really get attention?  Maybe New Hampshire.  But that's about it.

The proposed congressional district system has some history behind it.  As I noted above, it was used by several states for several election cycles in the early days of the Republic.  But it also has major flaws.

It can easily fail the "will of the voters" test as 2012 example from Virginia attests - the candidate receiving less votes receiving over 2/3rds of the electors is a pretty odd thing. 

It would do a good job promoting the interest of individual states, as candidates would have to campaign district-by-district and couldn't take very many electoral votes for granted.

It could be a potential disaster in providing decisive results.  Can you imagine a close race where there are 30 or 40 congressional districts that are all within the margin of a recount?  Multiply Bush vs. Gore by 30 or 40 and that's what you would have.

It would also tend to produce results that are less democratic (and also less Democratic, as of today), potentially leading to somewhat democratically inexplicable results.  Mitt Romney won 225 congressional districts in 2012 and 24 states, would would have given him 273 electoral votes to Barack Obama's 265 if the whole nation had used a system where the congressional district winners won 1 vote and the statewide winner won 2.  This, despite President Obama winning the popular vote by almost 4%.

In short, the GOP idea is a bad idea.  The appeal to them is obvious, from the description of the 2012 race above.  But it is also short-sighted.  A major reason why Romney won so many districts was Republican control of state houses when district lines were redrawn for 2012, following the 2010 census, allowing for gerrymandering of districts to support GOP victory.  This could easily flip in the next census.  Also, since the system is not being broadly adopted, adopting a system like that just for a few states, could actually hurt them in a close election.  What if just Virginia had adopted the system this time around and Romney had won it but left 4 electoral votes for Obama because of the system which proved decisive?

If we are not going to have a national popular vote system (which I favor) because small states don't want to give up authority and we want to reform the system, a better approach would be proportional representation in the electoral college.  Give the winner of the state 2 electoral votes and split the other votes by percentage of the vote.  For instance, in Iowa, which has 7 electoral votes, you'd give 2 votes to the winner and 1 vote each for approximately 20% of the vote garnered.  This would have split Iowa's vote 5-2 for Obama, versus the 7-0 that we saw.  In California, the vote would have split 35-20 rather than all going to Obama.  In Texas, it would have split 23-15 for Romney, instead of all going to Romney.  This would encourage campaigning in all 50 states and would take away the concentration of power from a few swing states.

Of course, such a system would only work if it is broadly adopted.  If Texas does it but California does not, then it just amounts to an unfair 15 electoral vote advantage for the Democrat.

My guess is that despite the discussion, not much will happen on this front for the 2016 election.  Governor Bob McDonnell of Virginia has already stated that he doesn't see an issue with the states present electoral system and cooler heads are likely to prevail in other GOP-controlled legislatures.

But all of this does provoke an interesting question as to whether our current system for electing Presidents is the best one we could find.

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