Mirror, mirror on the wall, who is the fairest state of them all?
Lest we be misunderstood, the editorial is not about who won the popular vote in 2016: Hillary Clinton did. This is not about who won the presidency in 2016: Donald Trump did. This is not about “what if this” and “what if that,” then the election would have turned out differently.
This editorial is about one thing only: the electoral college, and the unadmitted, and frankly absurd, postulate that underlies the current attempts to do away with it. Emphasize the word current. Various grumblings against the electoral college are as old as the college itself. We focus specifically on the current opposition to it.
It runs like this: Hillary Clinton won the popular vote, yet lost the presidency. This is not right. It is especially not right because in 2000, Al Gore won the popular vote, but lost the presidency. This was not right. Both Clinton and Gore are Democrats. The electoral college, by design or by accident, is currently stacked against Democrats. Therefore, do away with the electoral college. Make the system fair.
A closer look at the 2016 election reveals that, ironically and paradoxically, the attempt to do away with the electoral college actually cements it into place with a vengeance. While the electoral college prejudices the rights of 50 states over voters, the electoral college reform would prejudice the rights of one single state over both the other 49 states and the voters.
True, Hillary Clinton won the popular vote in 2016 fair and square. However, her margin of victory in the popular vote was provided by one single state: California. Nationally, she won the popular vote by a margin of 2,864,974 votes, but her margin of victory in California was roughly 4.2 million votes. Without California, Clinton would have lost the popular vote. Except for California, Trump won the popular vote.
At risk of appearing to repeat ourselves, the attribution of Clinton’s winning margin in the national popular vote to her success in one single state does not mean that Hillary Clinton did not win the popular vote, fair and square. She did. What her California victory margin does mean is that efforts to do away with the electoral college will not necessarily increase the fairness of presidential election results, if the definition of fairness is: representing the popular will of the country. No, the current electoral college reform effort — had it been in place during the 2016 election — would have resulted in a margin of victory that represented the popular will of one single state.
There is a way to put this in pictures. Draw the country. Color the counties that Trump won. Draw the counties that Clinton won. The Trump color represents some 75% of the counties in the USA.
The point is clear: The idea that the abolition of the electoral college will necessarily guarantee a fairer electoral outcome — that is, a fairer representation of the will of the country at large — is fallacious.
Needless to say, the distortion in the margin of popular vote, if stacked against the Democrats in 2016, could be stacked against the Republicans in the future. Similarly, the abolition of the electoral college, if it would have tilted the election toward the Democrats in 2016, could tilt it toward the Republicans in the future. Bottom line: The reliance on the popular vote is not the fairest way for this republic of states to elect a president. The electoral college is the best (though surely not the perfect) way to guarantee that the popular will in the counties across the whole country is represented. Not to mention, the electoral college is the only way to motivate candidates to take the time and money to campaign in the smaller states in the union.
There is another, historically incontrovertible point. Partisan-designed reform inevitably backfires. Sooner or later, the party that stood to gain, ends up losing. Recent case in point: 2013.
Harry Reid, the Democratic US Senate Majority Leader, did away with the longstanding rules for Senate confirmation of federal judicial nominees and executive-office appointments in 2013. This was the so-called “nuclear option.” Reid did away with the 60-vote supermajority. That allowed for the confirmation of three picks by then President Obama to the US Court of Appeals for the District of Columbia circuit.
We can sympathize with the political obstruction that Sen. Reid faced. Federal judicial nominees should be judged on their merits, not by the party of the president who nominates them. But the process should take precedence over problems that the process might entail. Reid did not agree. He changed the four-decade-old rule. He said: “It’s time to get the Senate working again.” The result? Only five years later, Democrat Harry Reid’s “Senate working again” resulted in a Supreme Court with two justices who were nominated by the current Republican president and who are anthema to the Democrats: Gorsuch and Kavanaugh. Why are they on the court? The technical answer is simple: Harry Reid changed the rules. Neither of these Supreme Court nominees faced the 60-vote barrier. And neither was confirmed by 60 or more votes. Thanks to Harry Reid, that was no longer necessary.
So, without commenting on the merits of Gorsuch or Kavanaugh or any other judicial nominee or potential nominee, we do not favor changing the rules and procedures by which this country has operated just because these rules or procedures seem to favor one side or another — if they are changed, at least in part, in order to favor the other side. The best long-term guarantee of fairness is the integrity of the process, whatever short-terms problems and frustrations the process might entail.
Leave the electoral college alone. The problem that reformers may seem to solve today may become the nightmare of these same reformers tomorrow.
Partisan-designed reform not only backfires, it can be an exercise in illogic with, to boot, no awareness thereof. This is exactly what happened when the Colorado legislature voted to assign all of Colorado’s votes to the winner of the popular vote in the next presidential election. Talk about irony! In the name of the sacred ethic of a presidential victory based solely on the popular vote, the Colorado legislature denied a popular vote to the people of Colorado on the issue . . . just another one of the distortions that pop up when you mess with a system that, whatever its oddities and flaws, did give us President Abraham Lincoln, who did not win the popular vote.
Copyright © 2019 by the Intermountain Jewish News
The U.S. Constitution says “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .”
The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”
Historically, major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation’s first election in 1789. However, now, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.
In 1789, only 3 states used the winner-take-all method (awarding all of a state’s electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all method is now currently used by 48 of the 50 states.
In 1789, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state.
In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.
The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes.
The National Popular Vote bill is 67% of the way to guaranteeing the majority of Electoral College votes and the presidency in 2020 to the candidate who receives the most popular votes in the country, by changing state changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.
All voters would be valued equally in presidential elections, no matter where they live.
Lincoln DID win the most national popular votes.
With the National Popular Vote bill, the Electoral College would have elected him.
Because of statewide winner-take-all laws,
2 of the 3 most recent presidents entered office without winning the most national popular votes.
5 of our 45 Presidents have come into office without having won the most popular votes nationwide.
A recent study warns that 1 out of every 3 presidential elections where the popular vote margin is within 3% will feature a mismatch between the popular vote and the electoral college.
There are several scenarios in which a candidate could win the presidency in 2020 with fewer popular votes than their opponents. It could reduce turnout more, as more voters realize their votes do not matter.
Because of the state-by-state winner-take-all electoral votes laws (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in each state) and (not mentioned in the U.S. Constitution, but later enacted by 48 states),a candidate can win the Presidency without winning the most popular votes nationwide. It has occurred in 5 of the nation’s 58 (9%) presidential elections.
The precariousness of the current state-by-state winner-take-all system of awarding electoral votes is highlighted by the fact that a difference of a few thousand voters in one, two, or three states would have elected the second-place candidate in 5 of the 16 presidential elections since World War II. Near misses are now frequently common. There have been 8 consecutive non-landslide presidential elections since 1988.
537 popular votes won Florida and the White House for Bush in 2000 despite Gore’s lead of 537,179 (1,000 times more) popular votes nationwide.
A difference of 60,000 voters in Ohio in 2004 would have defeated President Bush despite his nationwide lead of over 3 million votes.
In 2012, a shift of 214,733 popular votes in four states would have elected Mitt Romney, despite President Obama’s nationwide lead of 4,966,945 votes.
Less than 80,000 votes in 3 states determined the 2016 election, where there was a lead of over 2,8oo,ooo popular votes nationwide.
After the 2012 election, Nate Silver calculated that “Mitt Romney may have had to win the national popular vote by three percentage points on Tuesday to be assured of winning the Electoral College.”
According to Tony Fabrizio, pollster for the Trump campaign, the president’s narrow victory was due to 5 counties in 2 states (not CA or NY).
In Gallup polls since they started asking in 1944 until the 2016 election, only about 20% of the public supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states) (with about 70% opposed and about 10% undecided).
Support for a national popular vote for President has been strong among Republicans, Democrats, and Independent voters, as well as every demographic group in every state surveyed. In the 41 red, blue, and purple states surveyed, overall support has been in the 67-81% range – in rural states, in small states, in Southern and border states, in big states, and in other states polled.
There are several scenarios in which a candidate could win the presidency in 2020 with fewer popular votes than their opponents. It could reduce turnout more, as more voters realize their votes do not matter.
Most Americans don’t ultimately care whether their presidential candidate wins or loses in their state or district. Voters want to know, that no matter where they live, even if they were on the losing side, their vote actually was equally counted and mattered to their candidate. Most Americans think it is wrong that the candidate with the most popular votes can lose. It undermines the legitimacy of the electoral system. We don’t allow this in any other election in our representative republic.
The National Popular Vote bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
Since 2006, the bill has passed 37 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Maine (4), Michigan (16), Nevada (6), North Carolina (15), and Oklahoma (7), and both houses in Delaware (3), and New Mexico (5).
The bill has been enacted by 13 small, medium, and large jurisdictions with 181 electoral votes – 67% of the way to guaranteeing the majority of Electoral College votes and the presidency to the candidate with the most national popular votes.
When enacted by states with 270 electoral votes, it would change state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), in the enacting states, without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.
With the National Popular Vote bill, when every popular vote counts and matters to the candidates equally, successful candidates will find a middle ground of policies appealing to the wide mainstream of America. Instead of playing mostly to local concerns in Ohio and Florida, candidates finally would have to form broader platforms for broad national support. Elections wouldn’t be about winning a handful of battleground states.
Fourteen of the 15 smallest states by population are ignored, like medium and big states where the statewide winner is predictable, because they’re not swing states. Small states are safe states. Only New Hampshire gets significant attention.
n 2012, 24 of the nation’s 27 smallest states received no attention at all from presidential campaigns after the conventions. They were ignored despite their supposed numerical advantage in the Electoral College. In fact, the 8.6 million eligible voters in Ohio received more campaign ads and campaign visits from the major party campaigns than the 42 million eligible voters in those 27 smallest states combined.
The 12 smallest states are totally ignored in presidential elections. These states are not ignored because they are small, but because they are not closely divided “battleground” states.
Now with state-by-state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), presidential elections ignore 12 of the 13 lowest population states (3-4 electoral votes), that are non-competitive in presidential elections. 6 regularly vote Republican (AK, ID, MT, WY, ND, and SD), and 6 regularly vote Democratic (RI, DE, HI, VT, ME, and DC) in presidential elections.
Similarly, the 25 smallest states have been almost equally noncompetitive. They voted Republican or Democratic 12-13 in 2008 and 2012.
Voters in states, of all sizes, that are reliably red or blue don’t matter. Candidates ignore those states and the issues they care about most.
Winning counties, with wildly different population numbers, is not the basis for electoral victory
“The reality is: Given our Electoral College and our current politics, national elections are decided in this country in a few precincts, in a few key swing states,” former DHS Secretary Jeh Johnson
The current secretary of DHS, Kirstjen Nielsen, echoed those comments– 3/21/18
According to Tony Fabrizio, pollster for the Trump campaign, the president’s narrow victory was due to 5 counties in 2 states (not CA or NY).
In 2012, under the current state-by-state winner-take-all system (not mentioned in the U.S. Constitution, but later enacted by 48 states), voters in just 60 counties and DC could have won in states with 270 electoral votes to elect the president in 2012 – even though they represented just 26.3% of voters.
There are 5 million Republicans in California. That is a larger number of Republicans than 47 other states.
Trump got more votes in California than he got in Alabama, Arkansas, Louisiana, Mississippi and West Virginia combined.
None of the votes in California for Trump, helped Trump.
California Democratic votes in 2016 were 6.4% of the total national popular vote.
The vote difference in California wouldn’t have put Clinton over the top in the popular vote total without the additional 61.5 million votes she received in other states.
California cast 10.3% of the total national popular vote.
31.9% Trump, 62.3% Clinton
61% of an equally populous Republican base area of states running from West Virginia to Wyoming (termed “Appalachafornia”) votes were for Trump. He got 4,475,297 more votes than Clinton.
With the National Popular Vote bill in effect, all votes for all candidates in California and Appalachafornia will matter equally.
In 2012, California cast 10.2% of the national popular vote.
About 62% Democratic
California has 10.2% of Electoral College votes.
8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).
With the National Popular Vote bill in effect, all Republican votes in California and Colorado, and every other state will matter.