Thursday, April 24, 2008

Rules of the Game

DC attorney James Thunder takes a look at the primary and election process at The American Spectator, and not surprisingly finds both a bit lacking, given all the screaming in certain quarters about 'counting every vote' and the arguments about the popular vote versus the Electoral college. He asks many questions, some of which I will highlight:

"Is it democratic not to have secret ballots when voters meet (in caucus)?

Is it democratic to require voters to remain for several hours, to allow fellow voters to encourage others to change their votes, and to hold the voting open?

Is it democratic to hold both a primary and a caucus on the same day in succession?

Is it democratic to allow people who are not registered members of a party to vote in that party's nomination process? Is it democratic to allow people who are registered members of one party to vote in another's?

Is it democratic for a state party to allocate delegates between territorial districts within a state based on what the electorates in those districts, consisting of a different sets of voters, did in earlier election cycles?

Is it democratic to apportion the delegates of a state by territorial districts, making it possible for a candidate to win a majority the state-wide popular vote but not obtain a majority of the delegates?

Is it democratic to have 20% of the total number of delegates to be designated as such ex officio ("superdelegates") when they were elected to their offices in a prior election cycle and they were not elected for the purposes of voting in a national convention?

Is it democratic to hold a primary or caucus but not have it result in the selection of pledged delegates -- a process that awaits a later state convention?

If any of these is democratic, is it democratic to have all of them in the same election cycle among citizens of the same country?"

Of course, with all these issues and the others he raises (including the fact many states hold their votes over several days) it appears that the Electoral College may not be so 'undemocratic' after all. As he points out, there has never been an national popular vote election for President - the rules of the game are that the winner of the majority in the Electoral College wins the election. If there is no candidate winning the majority, then the House votes from among the top three finishers, with each state having one vote. While you can compile the results of the count from votes cast in each state, it is irrelevant. As Thunder puts it:

"To make an argument based on a supposed national popular vote is counterfactual. No voter has ever voted, and no candidate has ever campaigned, in the context of a national popular vote for president. There has been no contest for the national popular vote and, therefore, there have been no winners and no losers of such a contest. It is speculative, it is theoretical, as to what the results would be if voters and candidates had participated in such a campaign. We do not know, and we never can know, what the vote totals in non-battleground states would have been if there had been a contest for the national popular vote. The popular vote in an individual state is meaningful -- since it determines how the state electors will vote. The popular vote in the individual states, when aggregated on the national scale, however, is meaningless."

There are a number of proposals to modify the current system, but none have been implemented to date. There have been past modifications, such as the change in the early to mid 1800's whereby each state selected its electors to the college based on a winner take all system based on the popular vote results from each state. (Previously, state legislatures had a role in selecting electors in many states) Nebraska and Maine have altered this arrangement to a degree by selecting electors based on the vote results from each Congressional District, with the total state popular vote deciding the two electors each state receives in the college (based on each state's Senate seats).

One proposal that has been much bandied about is for each state to agree to pledge its electors to the winner of the national popular vote, (and there is considerable support for this by citizens in Colorado and Maryland) but this could not possibly be enacted until some indeterminate point in the future after the 2008 campaign and would probably not pass Constitutional muster in any event.


Anonymous said...

In response to your unsupported concluding opinion that the National Popular Vote bill “would probably not pass Constitutional muster.” According to

"What Does the U.S. Constitution Say About Presidential Elections?

The method of selecting the President and Vice President of the United States is not set forth in detail in the U.S. Constitution. The Constitution is silent about many of the most politically important features of presidential elections, notably including the question of "who votes for presidential electors" and "how are votes counted for presidential electors."

The Founding Fathers left these (and many other) politically important aspects of presidential elections for the states to decide.

. . . At various times in [various] states, voters elected presidential electors from congressional districts or from multi-member regional districts. Various indirect methods have been used, including a miniature state-level electoral college in Tennessee to choose the state's members of the national Electoral College. Today, the voters in Maine and Nebraska elect presidential electors by congressional district. In 2004, Colorado voters considered (and rejected) a ballot initiative that would have divided Colorado's nine electoral votes on a proportional basis.

The Constitution provides, "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."

The U.S. Supreme Court has characterized state power concerning the manner of appointing presidential electors as "supreme," "plenary," and exclusive.

. . .[T]here was no consensus among the Founding Fathers in favor of two of the most politically salient features of present-day presidential elections -- namely voting by the people and the statewide winner-take-all rule. These features are not mandated by the U.S. Constitution. These features were not implemented by amending the U.S. Constitution. Instead, these now-familiar features came into existence because the states used the flexibility that the Founders built into the Constitution to make these features part of our political landscape. These features are strictly a matter of state law. The now-prevailing statewide winner-take-all rule may be changed, at any time, by the states -- merely by passage of a state law. "

Kalthalior said...

While it is hardly an unbiased source you utilize here, you do make at least one point correctly -
that being it is up to the state to select their electors. Whether or not selecting those electors on the basis of the 'national' popular vote would be Constitutional is pretty murky. It would, at the very least, violate the spirit of the legal framework surrounding the current Electoral College, as well as most likely violate the Equal Protection clause. Given the current makeup of the Court, it is extremely unlikely such a proposal would gather a majority decision when (inevitably) it is challenged. Why any state would shoot itself in the foot and take the vote from the hands of its own citizenry is another matter entirely.