Three myths about the Electoral College

tags: election 2016, Electoral College, Trump

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears on the OUPblog. This post originally appeared on the OUPblog.

Since the election, we Americans have engaged in a healthy debate about the Electoral College. My instincts in this debate are those of an institutional conservative: Writing our Constitution from scratch today, we would not have designed the Electoral College as it has evolved. However, institutions become embedded in societies. Apparently compelling reforms, when implemented, often generate undesirable and unforeseen consequences.

Moreover, institutions often adapt to roles different from those anticipated by those who crafted such institutions. During the summer, when I decided that I could vote for neither major party candidate for president, I proposed that, where possible, bi-partisan unpledged slates of presidential electors run to provide an alternative. In the future, such an approach might commend itself if we are again confronted with two major party candidates viewed as unfavorable by the general electorate as were Secretary Clinton and President-elect Trump.

To further this debate, consider these three contentions often heard today about the Electoral College.

1. The Electoral College always favors Republicans. Advocates of this position point to President Bush’s loss of the popular vote in 2000 and to President-elect Trump’s larger loss of the popular vote in 2016. However, in the run up to the 2016 election, Clinton partisans were touting her “blue state firewall” in the Electoral College. I can find no public utterance by any prominent Democrat objecting to the possibility that Secretary Clinton might prevail in the Electoral College even if she lost the popular vote. The editorial board of the New York Times, which now calls for abolition of the Electoral College, was similarly silent about the prospect that Secretary Clinton might prevail in the electoral vote while losing the popular vote.

The narrative that the Electoral College always favors Republicans is wrong in another respect: As careful observers of the 1960 election have demonstrated, it is likely that Richard Nixon, not John Kennedy, won the popular vote in that year. No votes were explicitly cast for Kennedy or Nixon in Alabama since neither of their names appeared on that state’s ballot. Kennedy’s national popular vote total over Nixon rests on the unrealistic allocation to Kennedy of all of the votes cast in Alabama for a Democratic slate of electors, half of whom were pledged to vote against Kennedy in the Electoral College.

Camelot may thus have been a creature of the Electoral College.

2. For the victor in the Electoral College to lose the popular vote is a uniquely American phenomenon. Not so. Under parliamentary systems, it is possible for the victor to lose the popular vote but prevail by winning the most parliamentary seats. This happened twice in Great Britain in the second half of the twentieth century. In 1951, Britain’s Labor Party garnered more total votes in the aggregate, but the Conservative Party, with fewer popular votes, won more seats in the House of Commons. Consequently, Winston Churchill became Prime Minister. In 1974, the reverse occurred: The Labor Party received fewer votes nationwide but won more parliamentary seats. Hence, Harold Wilson, while losing what Americans call the popular vote, was elected Prime Minister.

3. The “winner take all” allocation of states’ respective electoral votes is bad. But the “winner take all” method is not required by the Constitution. Each state decides for itself how to award its electoral votes. Today, two states – Maine and Nebraska – allocate an electoral vote to the presidential candidate who carries a congressional district, even if that candidate loses the statewide popular vote. This happened in 2016 as President-elect Trump received one electoral vote by winning Maine’s second congressional district even as Secretary Clinton received Maine’s other three electoral votes. Other states can emulate Maine and Nebraska and allocate their respective electoral votes by congressional district. Alternatively, a state could also allocate its electoral votes proportionately so that, for example, a presidential candidate winning 40% of the statewide popular vote would receive 40% of the state’s electoral votes.

Those who would abolish the Electoral College bear the heavy burden of overturning a 200 year old institution which has become embedded in our society. The fact that Secretary Clinton prevailed in the popular vote but lost in the Electoral College does not carry that burden. As I suggested last month, the popular vote which occurs under the Electoral College is not necessarily the vote which would have occurred in a direct election for president conducted under uniform national rules.

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