Professor Sanford Levinson: April PF Topic Analysis

Professor Sanford Levinson is a Professor of Government and the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas at Austin and is the author of approximately 400 articles, book reviews, or commentaries in professional and popular journals. He earned his A.B. from Duke, Ph.D. from Harvard, and J.D. from Stanford.

Resolved: The United States ought to replace the Electoral College with a direct national popular vote.

What is the electoral college?

In and of itself, the selection and purpose of the executive branch was the most difficult issue on which the Framers needed to reach a consensus. Over the course of the convention, a litany of proposals were presented, many of which do not even remotely resemble the modern presidency. North Carolina delegate Hugh Williamson was concerned about a single individual’s tendency to favor the interests of the region from which he hailed and “wished the Executive power to be lodged in three men taken from three districts into which the States should be divided” (Madison Debates, July 24). According to Williamson, this three-person executive would allow the interests of all citizens to be heard and taken into account. Elbridge Gerry took a slightly different approach, instead suggesting that all of the state legislatures should vote for the executive in the same proportions that would be used to allocate electors, and then if a majority is not reached, the “1st. branch of the Natl. Legislature should [choose] two out of the 4 candidates having most votes, and out of these two, the [second] branch should [choose] the Executive” (Madison Debates, July 24).

What is now a ubiquitous institution of American government was once nothing more than a suggestion tossed out at the 1787 Constitutional Convention in Philadelphia. As Professor Sanford Levinson notes, the system which is now entrenched into the fabric of American government was actually stumbled upon by the Framers. Delegates at the Convention were fiercely divided over which system should be used to select the President, with the anti-Federalists preferring a direct election of the executive and the Federalists advocating for the election of the executive by a select group of individuals. The electoral college had two main advantages according to Professor Levinson:

1. In 1787, there were no national newspapers or national communication networks. The electoral college was the solution that came out of “a practical realization that most people really didn’t have the resources to become familiar with who might be the best national leaders.” John F. Mercer, a Maryland delegate to the Constitutional Convention objected on these grounds, remarking that “the people can not […] judge […] the characters of Candidates [so] the worse possible choice will be made” (Madison Debates, Aug. 7). Elbridge Gerry concurred with this view, contending that “the people are uninformed, and would be misled by a few designing men” (Madison Debates, July 19). To remedy this problem, the idea was to have local citizens elect other local people who then would select the Vice President and President. 

2. Although the electoral college is often thought to be anti-slavery, it ended up giving extra weight to slave states due to the three-fifths compromise. Delegates from the Southern states were adamant that they would not ratify the Constitution if the Convention “should fail to insert some security to the Southern States against an emancipation of slaves,” in the words of South Carolina delegate Charles Cotesworth Pinckney (Madison Debates, July 23). Since the number of electors a state would be allocated was (and still is) determined by the number of Representatives they had in Congress plus two Senators, and the number of representatives is proportional to population, slave states got extra voters.

What is a national popular vote?

A national popular vote is essentially a simple majority-rule system “in which a candidate wins if he or she garners, respectively, a plurality or majority of all votes cast” (Maskin 1). 

Pro

1. No longer serves intended purpose

In his concurring opinion in Williams v. Rhodes, Justice Harlan states that the only purpose of the electoral college was to “permit the most knowledgeable members of the community to choose the executive of a nation whose continental dimensions were thought to preclude an informed choice by the citizenry at large.” At the time of the Constitutional Convention, the absence of national newspapers and communication networks precluded the development of an informed citizenry with respect to presidential candidates. The delegates to the convention sought to bridge this gap through the election of local representatives who were trusted by the people to represent their interests in selecting the national executive.

While such a system was undoubtedly the best in 1787 given the challenges to effective communication, Professor Levinson notes that “in the 21st century, the electoral college doesn’t make sense because we do have national networks and electors are no longer expected to engage in any kind of judgement and instead just reflect want of the people.” Now, 84 percent of the voting-age population (defined as those 18 and older) uses the internet, which is the primary source of information for most Americans (Perrin and Duggan 2). Thus, to argue that the system ought to be maintained “is an insult to America” because it insinuates that “we lack the capacity to conduct a fair and reliable direct election for our national leader” (Wildenthal). 

2. Violates “one person, one vote”

The right to vote is inextricably linked with the American identity (Douglas 145). However, this right does not necessarily translate into a voice in government. While our constitutional structure generally maintains that the right to vote is paramount in a democracy, this right is practically nonexistent with respect to the election of the President and Vice President (Fuentes-Rohwer and Charles 882).

The electoral college renders individual votes irrelevant, according to Professor Levinson, as the use of the winner-take-all system in the majority of states transforms a slim margin of victory into a landslide. Furthermore, due to the allocation of electors in accordance with population, “a vote cast in a less populated state is worth three to four times as much as a vote cast in a highly populated state” (Hansen 101). If you couple population with the margin of partisanship (swing states), it becomes evident that an individual vote has a much greater likelihood of being decisive if it is cast in a state with a large population and low margin of partisanship (swing state).

Screen Shot 2017-03-21 at 6.12.00 PM

Figure 2: Probability of a decisive vote (Gelman, Silver, and Edlin)

As John Mark Hansen, Charles L. Hutchinson Distinguished Service Professor at the University of Chicago, concludes: “if we want every vote to count equally, the only solution is to elect the president by direct popular vote” (Hansen 104).

Con

1. Condorcet Paradox and Arrow’s Impossibility Theorem make majority-rule impossible

In the 18th century, French philosopher and mathematician Marquis de Condorcet authored an essay analyzing the probability of decisions made on a majority vote. This work, published in 1785, articulated a number of theories pertaining to voting and social consensus, the most notable of which is the Condorcet Paradox.

Screen Shot 2017-03-19 at 5.52.15 PM.png

Table 1: Cyclical Preferences (ref. Tabarrok 16)

It is important to note that the Condorcet Paradox is limited to situations in which pairwise voting occurs (1-on-1 match-ups) so the U.S. presidential election system does not lend itself to Condorcet analysis but, for the sake of this article, it is the most relevant example.

In the table above, there are three voters, all of which prefer different candidates. In the primary (the first contest), Clinton is matched against Sanders. Since both Voter 2 and Voter 3 prefer Clinton over Sanders, Clinton wins and advances to the general election (the second contest). Now, Clinton is matched against Trump, who has just gone through a similar process to clinch the Republican nomination (although there were significantly more candidates in the Republican primary, the way Trump got to the general election is arbitrary for purposes this discussion). This time, however, Voter 3 and Voter 1 prefer Trump to Clinton and subsequently elect Trump president.

Put simply, the Condorcet Paradox means that it is not always possible to select a candidate that will beat all other candidates in pairwise (head-to-head) match-ups. In the aftermath of the 2016 presidential campaign, there was extensive debate on both sides of the aisle as to whether or not Bernie Sanders would have been able to beat Donald Trump. This is a prime example of the Condorcet Paradox in action: Hillary beat Bernie when they were head-to-head in the primaries, but Hillary was beaten by Trump in the general election. Pollsters found that Sanders would likely have beaten Trump in the general election, but he lost to Clinton in the primaries. Why? Because when Clinton was matched against Bernie, people preferred Clinton, but if Bernie would have been matched against Trump, more people would have preferred him over Trump. Consider these polls:

If the United States were to “implement direct elections and then only require simple plurality to win, this brings with it an enhanced likelihood of failing to elect Condorcet winners” (Grofman and Feld 15).

In a tangential vein of thought, Arrow’s impossibility theorem posits that no democratic (non dictatorial) voting system can transform individual preferences into a single societal preference order that reflects the opinions of all voters. In Arrow’s own words:

If we exclude the possibility of interpersonal comparisons of utility, then the only methods of passing from individual tastes to social preferences which will be satisfactory and which will be defined for a wide range of sets of individual orderings are either imposed or dictatorial (Arrow 342).

Essentially, what Arrow is saying is that “no voting procedure can meet certain conditions of both fairness and logic” (Hayden 295). These conditions were enumerated by Arrow in his original 1950 article and have been amended and revised in subsequent publications. They are: nondictatorship, pareto efficiency, universal admissibility, independence from irrelevant alternatives, and transitivity (although they are outside the scope of this article). Therefore, any arguments the affirmative makes regarding the supposed merits of the popular vote system are invalid since Arrow’s impossibility theorem shows that no democratic voting system can be both fair and logical.

2. Does not need to be replaced in order for the popular vote to win.

Although the electoral college is used to select the leader of the federal government, the states are able to appoint electors in any manner they choose under Article II, Section I of the Constitution, which states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

States have utilized this plenary power to adopt a variety of different methods for choosing electors. While the majority of states rely on the respective political parties to nominate electors, some states use alternative systems. In Florida, for instance, “the Governor shall nominate the presidential electors of each political party” (Fla. Stat. § 103.021). And while the vast majority of states have abandoned the practice of listing the names of electors on the ballot, eight states still do so. Louisiana law dictates that “presidential electors nominated in support of the nominees for president and vice president of that party or political principal shall appear [on the ballot]” (Louisiana Rev. Statutes § 18-1259). Two states–Maine and Nebraska–have also used the authority afforded to them under Article II, Section I to appoint electors proportionally (using the congressional district method) instead of using the winner-take-all system.

Although the aforementioned examples alter the electoral vote allocation process through state-specific legislation, the proposed National Popular Vote Interstate Compact (NPVIC) would depend on coordination among the states “by having states pass an interstate compact to pledge their electoral votes to the winner of the national popular vote” (Chang 2o5). Opponents of the NPVIC are apt to argue that such an agreement between states violates the Compact Clause (see Muller), but the fact of the matter is that the NPVIC is well within the bounds of permissible interstate agreements. As the Supreme Court ruled in Virginia v. Tennessee, the prohibition of compacts was “directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.” Using this standard as a benchmark for constitutionality, it is abundantly clear that the NPVIC is not in violation of the Compact Clause (Chang 214).

3. The primary problem is not the electoral college itself, but rather the methods used by the states to allocate electors

As I explained above, states have the plenary power to decide how to allocate their electors. Currently, all but Maine and Nebraska use the winner-take-all method, which gives the candidate with the most votes all of the states electoral votes irrespective of the margin of victory. This method, Professor Levinson explains, causes candidates to ignore states they are clearly going to win in addition to those they are clearly going to lose. Winner-take-all has thus diluted the importance of mounting a truly nationwide campaign since the “majority of the states are currently ‘safe’ for either major party candidate” (Belenky 1309).

As funds and resources are at a premium, candidates must campaign strategically in order to garner the maximum number of electoral votes at the lowest possible cost. Based on this logic it is obvious that a Republican candidate will shy away from campaigning in California––a blue state––because there is a low probability of seeing a return on that investment. On the other hand, a Democratic candidate will also avoid California because they can confidently rely on winning by a large margin. The Los Angeles Times reported that that in 2012, Obama and Romney received a combined $137.8 million in campaign donations from California but spent a mere $320 on advertising in that state (Skelton). Thus, the solution to this problem is not to replace the electoral college, but rather to change the disease that is plaguing it: winner-take-all.

Works Cited

Arrow, Kenneth J. “A Difficulty in the Concept of Social Welfare.” Journal of Political Economy 58.4 (1950): 328-346. [link]

Belenky, Alex S. “A modified “winner-take-all” rule for awarding state electoral votes in US presidential elections and a game model for its analysis.” Mathematical and Computer Modelling 48.9 (2008): 1308-1325. [link]

Chang, Stanley. “Updating the Electoral College: The National Popular Vote Legislation.” Harv. J. on Legis. 44 (2007): 205-229. [link]

Cooper, Matthew. “How to Fix the Electoral College.” Newsweek. Newsweek, 22 Nov. 2016. Web. 17 Mar. 2017. [link]

Douglas, Joshua A. “Is the Right to Vote Really Fundamental?” Cornell J. of Law and Public Policy 18 (2008): 143-201. [link]

Fla. Stat. § 103.021 [link]

Fuentes-Rohwer, Luis, and Guy-Uriel Charles. “The Electoral College, The Right to Vote, and Our Federalism: A Comment on a Lasting Institution.” Fla. St. UL Rev. 29 (2001): 879-924. [link]

Gelman, Andrew, Nate Silver, and Aaron Edlin. “What is the probability your vote will make a difference?.” Economic Inquiry 50.2 (2012): 321-326. [link]

Grofman, Bernard, and Scott L. Feld. “Thinking about the political impacts of the Electoral College.” Public Choice 123.1 (2005): 1-18. [link]

Hansen, John Mark. “Equal Voice by Half Measures.” Michigan Law Review First Impressions 106.1 (2008): 100-104. [link]

Hayden, Grant M. “Some Implications of Arrow’s Theorem for Voting Rights.” Stanford Law Review (1995): 295-317. [link]

Louisiana Rev. Statutes § 18-1259 [link]

Madison Debates [link]

Maskin, Eric. “Is Majority Rule the Best Election Method?.” Occasional Papers in the School of Social Science 11 (2001): 1-8. [link]

Muller, Derek T. “The Compact Clause and the National Popular Vote Interstate Compact.” Election Law Journal 6.4 (2007): 372-393. [link]

Perrin, Andrew, and Maeve Duggan. “Americans’ Internet Access: 2000-2015.” Pew Research Center 26.6 (2015). [link]

Skelton, George. “Winner-take-all electoral system is a loser for democracy.” The Los Angeles Times. The Los Angeles Times, 21 Jan. 2015. Web. 19 Mar. 2017. [link]

Virginia v. Tennessee, 148 U.S. 503 (1893) [link]

Wildenthal, Bryan H. “Electoral College: A disaster for democracy.” San Diego Union-Tribune. San Diego Union-Tribune, 13 Jan. 2017. Web. 17 Mar. 2017. [link]

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