Evan Katz

After I posted The Case Against the Electoral College, I stumbled upon an article by Richard A. Posner, a judge on the U.S. Court of Appeals for the 7th Circuit and a senior lecturer at the University of Chicago Law School, defending the system. His perspective is intriguing, especially because he introduces arguments I haven’t actually considered before, but despite his well-thought-out piece, I still believe the Electoral College needs to be replaced. I’ll address each of his arguments below.

1. Certainty of Outcome

Posner’s first argument is that the Electoral College produces a certain outcome, or at least one that is not as easily disputable as that of the popular vote. Because candidates that win a particular state will automatically win all of that state’s electoral votes (save for Maine and Nebraska), even close elections in the popular vote will appear as landslides in the Electoral College. Now, he qualifies this by saying that the system can still produce contentious elections (e.g. Bush v Gore), but they’re much rarer than what might occur under a purely popular vote format, where any kind of close election would spark partisan fights over recounts in states with extremely small margins of victory.

The issue with this argument is that while the Electoral College can produce a definitive outcome, that doesn’t necessarily mean it’s the right/most desired outcome. Take, for example, the 1888 election, which was a definitive electoral victory by Benjamin Harrison over Grover Cleveland despite the fact that Cleveland had about 90,000 more votes. If a plurality of people chose a candidate, why should we continue to use a system that puts a different, less desirable candidate in power? Sure, this has only happened four times in American history, but the very premise of representative democracy is that the people have a direct say in who leads their country; a system that blatantly defies the will of the people is antidemocratic.

Posner makes the claim that a close popular election would incentivize losing candidates to challenge the vote counts of states with razor-thin margins in order to garner as many votes as possible to flip the election. If anything, this argument applies more to the Electoral College; because states are ultimately what matter, candidates are more likely to challenge results in states with razor-thin margins during close elections in order to flip them. There’s some merit to Posner’s claim when the difference in the popular vote between two candidates is extremely small, but using a popular vote to determine the election would ensure that the Electoral College never picks the wrong candidate.

2. Everyone’s President

Posner’s next argument is that the Electoral College “requires candidates to have transregional appeal” because no region has the requisite number of electoral votes to elect a candidate on its own. A regional favorite – like a Republican in the South or a Democrat in the Northeast – has zero reason to campaign a region where he/she is expected to win. Instead, such candidates must focus on campaigning in other, more contentious areas of the country, forcing them to have broad appeal that extends beyond a single region.

While Posner is right that no single region has the power to elect a candidate, a candidate does not need to win every region in the country to win an election. Republicans rarely won states in the South in the late nineteenth and early twentieth centuries and still managed to win plenty of elections. If anything, candidates can ignore whole regions if they realize they don’t stand a chance to win there due to the winner-take-all nature of the Electoral College. A popular vote system would ensure some sort of payoff for candidates who choose to campaign in unfavorable regions because every vote swayed would matter for the national election, introducing the incentive to be as “transregional” as possible.

The inability to win an election with just one region of the country is also not intrinsic to the Electoral College. As it stands, no region alone has the population necessary to elect a President under a popular vote format. Granted, the South makes up nearly 40% of the U.S. population, but even the South is not ideologically homogenous. Even if 75% of the South voted Republican, an extreme blowout scenario, that would still constitute less than 30% of the popular vote; a candidate would need a coalition of regions to win a presidential election.

3. Swing States

Posner argues next that the Electoral College forces candidates to focus all time and resources campaigning in key swing states rather than safe states, which is absolutely true. He argues that this is a good thing, however, since it puts an election in the hands of the voters in those swing states. Because of the amount of effort campaigns put into winning swing states, naturally the voters that live in those states would have the most information about both candidates and would be able to make the most informed decisions.

There are two problems with this argument. First, as I said in my previous post, safe states get totally ignored. This becomes problematic as the list of swing states keeps dwindling because more and more of the population gets ignored when it comes to campaign focus. Of the ten largest states by population, only two or three can really be counted as true swing states anymore. One could make the argument that the people in those states have already decided, so it’s a waste of time to try to campaign there, but not everyone is as partisan or as set on a candidate as “safe states” make them out to be. While there may be a lot more Democrats in California than Republicans, not everyone is set in their ways; many are open to changing their minds. Focusing campaigns on just a small segment of the population doesn’t give those voters the opportunity to understand candidates’ stances and platforms, which only encourages them to default to their party affiliation rather than the best possible candidate.

Second, while they may be split between the two major parties, swing states are not necessarily reflective of the opinions of rest of the nation. Because only around seven to ten swing states still exist due to the nature of the electoral map, candidates are forced to adjust their platforms to appeal to the voters of those states. As a result, we end up with a President that’s best for one-fifth of the states, not necessarily the United States as a whole.

4. Big States

Posner’s fourth argument is a bit paradoxical. He states that, in spite of the malapportionment that negatively affects larger states in the Electoral College, those states still have a massive amount of sway in a presidential election, which encourages candidates to spend the as much time and as many resources as possible campaigning in them. While it’s true that Florida’s 29 electoral votes (which will increase after 2020) play a huge role in determining the outcome of an election, a majority of the big states are already considered safe states. California, New York, Illinois, and Pennsylvania are consistently blue states while Texas, Georgia, and (arguably) North Carolina lean red. Outside of Florida, Ohio, and maybe North Carolina, the most recent campaigns have almost completely ignored the big states. Obviously big swing states play a huge role in the Electoral College, but in a popular vote scenario, all big states, including the safe ones, would play an even larger role in electing a President. Republicans would have a reason to campaign in California and New York just as Democrats would have a reason to campaign in Texas and Georgia.

5. Avoiding Runoff Elections

Posner’s last argument makes a lot of sense. The Electoral College removes the need for a runoff election because candidates that fail to win a majority of the popular vote can still win a majority of electoral votes. While it’s possible for no candidate to win a majority in the Electoral College, the two-party system makes that scenario fundamentally impossible. It’s also hard to justify putting a candidate in office if almost 60% of the population didn’t vote for him/her. Luckily, there are numerous ways to correct this problem.

The easiest system would be to implement “instant-runoff voting” – also known as alternative voting. In this system, rather than voting for a single candidate, voters can rank their candidates based on preference. The votes for whichever candidate receives the fewest first-place votes in an election get reallocated to those voters’ second choices, a process that continues until there is a single winner. This would have two benefits: first, it would automatically declare a winner without a contentious runoff election, making the process quick and easy. Second, it would remove the need for strategic voting, where people vote for the candidate that’s the lesser of two evils because he/she has a better chance of winning that one’s most preferred candidate. For example, Libertarians fed up with Barack Obama after his first term could have still voted for Gary Johnson in 2012 without fear that not voting for Mitt Romney would split the Republican vote and hand the election to the Democrats (the election probably would have turned out the same, but it’s a thought experiment).

Another potential solution would be to implement what the Bayh-Celler Amendment of the 91st Congress proposed for a popular vote format: a threshold a candidate must clear in order to win an election outright and avoid a runoff. If a candidate fails to win, say, at least 45% of the vote, a runoff election occurs. In such a scenario, for example, Woodrow Wilson would have gotten into a runoff election with Theodore Roosevelt in 1912 because his 41.8% of the popular vote would not have been enough to clear the 45% threshold. The runoff election could have potentially produced a different outcome with no William H. Taft involved, as Taft split the vote with Roosevelt in 1912.

Posner’s defense of the Electoral College is one of the best I’ve seen to date. Despite his strong arguments, I think the drawbacks to the system far outweigh the marginal benefits, and many of the reasons to keep the system don’t stand under intense scrutiny. It’s about time we move away from the anachronistic Electoral College toward a more direct and fair way of electing a President of the United States.