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Title: The Electoral College: How Does It Work in Practice? Why Do We Have an Electoral College? How Did It Come To Work the Way It Does? What Can We Do About It?


1
The Electoral CollegeHow Does It Work in
Practice?Why Do We Have an Electoral
College?How Did It Come To Work the Way It
Does?What Can We Do About It?
  • Nicholas R. Miller
  • POLI 325
  • November 26, 2012

2
How the EC Works in Practice
  • Instead of electing a President (and Vice
    President) in a single national election on
    Presidential election day,
  • we have 51 separate state ( DC) elections,
  • in which voters (incorrectly but reasonably
    enough) think they are voting directly for a
    Presidential/Vice Presidential ticket.
  • the plurality winner in each state (except ME and
    NE) wins all of the states electoral votes
    (winner-take-all)
  • which are equal in number to the states total
    representation in Congress,
  • i.e., its House seats 2
  • plus DC has 3 electoral votes, so
  • total EV 538, and
  • these electoral votes are added up to determine
    the winner of the election,
  • with 270 required for election.
  • Thus in practice (at least 95 of the time), the
    EC is merely a vote counting system that
  • takes the popular votes in each state,
  • automatically translates them into nationwide
    electoral votes, and
  • declares a winner on the basis of electoral votes.

3
Implication of the EC in PracticeBattleground/
Swing States
  • The principal strategic implication of the EC in
    practice is that it creates battleground (or
    swing) states, because
  • it matters only which party ticket carries a
    state,
  • and not what the margin of victory or defeat is.
  • Hence states that are expected to be close become
    battlegrounds while other are substantially
    ignored.
  • Today (frequent and relatively accurate) state
    polls make it easier to identify battleground
    states.
  • Until a decade or two ago, there were relatively
    few state (as opposed to national) polls.
  • Contemporary campaign resources (especially TV on
    local channels and cable services) ads can be
    both
  • focused on particular states, and
  • can moved from one state to another,
  • in contrast to
  • party organization rooted in states and
    localities in the 19th century, and
  • national TV advertising (mid- to later-20th
    century).

4
More Esoteric EC Details (cont.)
  • Lurking beneath electoral votes are real people
    called Presidential electors,
  • for whom voters actually vote for on Presidential
    election day,
  • who are actually elected on Presidential election
    day, and
  • who actually cast the electoral votes (about six
    weeks later).

5
More Esoteric EC Details (cont.)
  • Underlying the winner-take-all system is the
    fact that (in almost universal practice)
    Presidential electors are elected not
    individually but on statewide party slates
    (general ticket system).
  • The Constitution gives state legislature the
    power to determine how their states electors are
    selected.
  • A variety of methods other than winner-take-all
    for selecting Presidential electors have been
    used by some states in the past, which could
    often produce split electoral votes from a state.
  • Indeed, at the present time, ME (since 1972) and
    NE (since 1992) do not award electoral votes on a
    winner-take-all basis,
  • but rather on the basis of the Modified District
    Plan.

6
Esoteric Details (cont.)
  • Party nominees may occasionally be deprived of
    electoral votes by faithless electors,
  • who cast electoral votes in a way that
    contradicts their pledge to support their party
    ticket, and
  • in a way that does not reflect popular vote in
    the state
  • and produces a split electoral vote from a state.
  • If no candidate wins 270 electoral votes, either
  • because a third candidate wins some electoral
    votes or
  • because there is a (mathematically possible)
    269-269 tie between two candidates,
  • the election is thrown into the House of
    Representatives (which last happened in 1824),
  • where voting by state delegation (one delegation
    one vote),
  • and the House ballots repeatedly until one
    candidate is supported a majority of state
    delegations.

7
Evaluating the Electoral College
  • Today, as a rough generalization,
  • liberals mostly criticize the Electoral College
    and advocate its replacement by a national
    popular vote,
  • while conservatives mostly oppose a national
    popular vote and defend the existing Electoral
    College.
  • These attitudes were perhaps reinforced by the
    2000 election inversion.
  • However, in the mid-20th century liberals
    mostly defended the existing Electoral College
    system, which they viewed as having features that
  • enhanced the voting power of major constituencies
    of the New Deal,
  • which counterbalanced the rural and conservative
    advantage
  • in the malapportioned House of the that era, and
  • In the malapportioned Senate of every era.
  • Their fondness for the EC may have been slightly
    restored by the 2004, 2008, and 2012 elections.

8
Evaluating the Electoral College (cont.)
  • My own take on the Electoral
  • The original EC was a compromise among diverse
    considerations that was cleverly designed but had
    a fatal flaw that had to be (and was) corrected
    by the 12th Amendment to the Constitution in
    1804.
  • The original EC established a selection system
  • that was designed to operate in a non-partisan
    environment, but
  • did not operate satisfactorily once political
    parties formed to contest Presidential selection.
  • The EC was rapidly transformed into an
    institution quite different from its designers
    had intended.
  • So, even if you like the existing EC, you cant
    really give credit to the wisdom of the framers
    of the Constitution.
  • Likewise, even if you dislike the existing EC,
    you cant really blame the framers.
  • The transformed EC has proved to be a serviceable
    institution but is problematic in a number of
    ways.

9
Problems with the EC in Practice
  • It typically produces a disparity between popular
    and electoral vote proportions, which
  • almost always exaggerates the winners margin,
    for example
  • Popular Vote Electoral Vote
  • 2012 Obama 52 332
  • Romney 48 206
  • But is this really a problem?

10
Problems with the EC in Practice (cont.)
  • It is said to disenfranchise voters in
    non-battleground states.
  • It is based on an apportionment of electoral
    votes that entails a small state advantage with
    respect to the.
  • It (arguably) produces a large state advantage
    resulting from the (almost universal)
    winner-take-all system of casting electoral
    votes.
  • Most important, it produces election inversions
    (or reversals of winners, wrong winners, EC
    misfires, etc.) in which
  • a candidate who wins less than a plurality of the
    popular vote
  • is elected on the basis of electoral votes.
  • Popular Vote Electoral Vote
  • 2000 Bush (R) 47.87 271
  • Gore (D) 48.38 267
  • 1888 Harrison (R) 47.80
    233
  • Cleveland (D) 48.63
    168
  • 1876 Hayes (R) 51
    185
  • Tilden (D) 48 184
  • 1960(?) Kennedy (D) ????
    303
  • Nixon (R) ???? 219

11
Problems with Details of the EC
  • Unpledged or faithless electors might determine
    the outcome of the election.
  • State legislatures can manipulate the manner of
    selecting electors.
  • Colorado Proposition 36 in 2004 (Democratic
    supported initiative)
  • Republican efforts in CA in 2008 and PA in 2012
  • If a state decides to select electors by
    district, the districts may be gerrymandered.
  • A state legislature might decide to appoint
    electors.
  • There is no constitutional right to vote for
    President (or even Presidential electors).
  • The most problematic feature of the Electoral
    College is Contingent Procedure (when an election
    is thrown into the House).
  • We have little understanding of how this would
    work in practice.
  • State equality regardless of population appears
    to be unsupportable (especially today, e.g., CA
    vs. WY)
  • A President would not be selected until about two
    weeks before Inauguration Day (if then).

12
Why Do We Have an Electoral College?
  • The answer goes back to 1787 and the framing of
    the U.S. Constitution.
  • The charge to the Constitutional Convention was
    to revise and strengthen the Articles of
    Confederation.
  • Under the A of C, the only central government
    institution was Congress.
  • Each state legislature appointed its
    Congressional delegates.
  • Each state delegation had one vote.
  • A 9/13 supra-majority was required for
    substantive matters.
  • 13/13 unanimity was required to amend the A of C.
  • Congress had very limited powers in particular,
  • It could not lay and collect taxes, and
  • It could not pass laws that directly exercised
    its powers.
  • In both respects, Congress had to rely on the
    cooperation of state legislatures.
  • There was no national executive or judiciary.

13
Why Do We Have an Electoral College? (cont.)
  • The Constitution
  • expanded the powers of Congress and
  • allowed Congress to exercise its powers by
    passing laws that bound individuals directly, and
  • that would be executed by a national executive
    (President), who also had other independent
    powers, and
  • that would be enforced by a national court
    system.
  • Given the much stronger powers of Congress under
    the Constitution, it was hoped that the executive
    (and judiciary) would check and balance the
    naturally predominant legislature.

14
Designing The Original Electoral College
  • Designing the mode of selecting the President was
    one of the most difficult tasks that confronted
    the framers.
  • Their most famously difficult task was designing
    the scheme of representation for a new national
    legislature.
  • The difficulty in the legislative case lay in the
    fact that most delegates knew exactly what they
    wanted, but different delegates wanted different
    things
  • small-state delegates wanted to preserve the
    principle of state equality, while
  • large-state delegates wanted state representation
    proportional to state population.
  • In contrast, the difficulty in the executive case
    was that most delegates were not at all sure what
    they wanted,
  • though the conflict between small states and big
    states was still relevant.

15
Designing The Original Electoral College
  • The menu of options for Presidential selection
  • Selection by states,
  • but this would be too much like the Article
    Confederation
  • Selection by the Congress,
  • which was the default option found in both VA
    and NJ plans.
  • But many feared it would make the President too
    dependent on and (if eligible for re-election)
    subservient to Congress.
  • How would a bicameral Congress (as provided for
    by the Great Compromise) elect a President?
  • Selection by some kind of popular election,
  • which was advocated primarily on separationist
    grounds, i.e., as a means of making the President
    more independent of Congress, but
  • it presented many practical difficulties.
  • Some kind of mixed system, which might
    distinguish between
  • a first round of selection (nomination) and
  • a second round of selection (election or
    runoff), and
  • might use intermediate electors.

16
Designing The Original EC (cont.)
  • The Electoral College proposal was put together
    by the Committee on Postponed Matters over a
    period of a few days and accepted by the
    Convention (with one modification) within the
    last week or so of the Convention.
  • The perceived advantages of an Electoral College
    of intermediate electors
  • unlike Congress, the EC would perform a single
    task i.e., cast votes for President -- and
    would then disband, so
  • the President would be subservient to neither
    Congress nor the Electoral College and
  • unlike popular election, the EC
  • avoided difficult questions about the extent of
    suffrage, and
  • allowed a compromise between the large vs. small
    states through its fine details, and
  • and public opinion could be informed and refined
    through representation.
  • Since legislative election was the default
    choice, it is more accurate to say the framers
    settled on the EC
  • as an alternative to legislative election, rather
    than
  • as an alternative to popular election.

17
The Original Electoral College Rules
  • Each state is to select a number of electors
    equal in number to its total representation in
    Congress.
  • The legislature of each state is to determine the
    mode of selection of its electors.
  • Each elector is required to cast exactly two
    equal and unranked votes
  • for two different candidates (vs.
    cumulative/approval voting),
  • at least one of whom had to be a resident of
    another state.
  • Once cast, the electoral votes are transmitted to
    Congress, to be counted before a joint session of
    Congress.
  • To be elected President by the EC, a candidate
    must receive
  • votes from a majority of electors and
  • more votes than any other candidate.
  • Given this double vote system, these requirements
    were logically distinct.
  • In particular, more that one candidate could
    receive the required majority.

18
The Original Electoral College (cont.)
  • In the event that
  • no candidate is supported by a majority of
    electors, or
  • two (or more) candidates with the required
    majority are tied,
  • there is to be runoff election the contingent
    procedure in Congress
  • among the top five electoral vote recipients, or
  • between the tied candidates.
  • The Committee proposed that the runoff be in the
    Senate.
  • The Convention considered changing this to the
    House or to Congress as a whole by joint ballot.
  • It ended up changing the locus of the runoff to
    the House, voting one vote per state delegation.
  • Election by the House requires support by a
    majority of state delegations.

19
The Fatal Flaw in the Original Electoral College
  • However, the Committee was concerned that some
    electors might throw away their second votes.
  • It was believed a second office had to be at
    stake to induce electors to take their second
    votes seriously.
  • For this reason (only), the office of Vice
    President was proposed.
  • The Vice Presidency was introduced only for the
    sake of a valuable mode of election which
    required two to be chosen at the same time,
  • which largely explains the awkward and largely
    impotent place this office occupies in the
    overall constitutional scheme.
  • This turned out to be a miscalculation that
    produced a fatal flaw in the original EC,
  • and created what historian Richard McCormick has
    called a hazardous game of Presidential
    selection.

20
The Electoral College An Example
  • THE ORIGINAL ELECTORAL COLLEGE BEFORE THE 12th
    AMENDMENT AND USING THE PROVISIONAL APPORTIONMENT
    OF HOUSE SEATS
  • House Size 65
  • Number of Electors 65 (2 13) 91
  • Number of Electoral Votes 2 91 182
  • Maximum Vote Any Candidate Can Receive 91 (one
    from every elector)
  • Required Majority 46 (one vote from a majority
    of electors)
  • If no one gets 46 votes or if there is a tie
    among those who do
  • Required Vote in House 7
  • In any event, the runner-up becomes Vice
    President
  • Note these numbers were never actually used.

21
Expectations Concerning the Original EC
  • This original Electoral College system was
    designed to operate in an expected (or at least
    hoped for) non-partisan environment.
  • It therefore was expected that
  • typically there would be many potential
    Presidential candidates,
  • who would not declare themselves as such, let
    alone actively campaign for the office, and
  • electors would vote for the two best of these
    candidates
  • on the basis of their character and connections,
  • not party affiliation or policy promises.
  • Therefore, it was also expected that electoral
    votes would be widely scattered and the
    contingent procedure would be used 19 times out
    of 20 (in George Masons estimate), so
  • big states would have the dominant role in
    screening/ nominating candidates (in the EC),
    while
  • small states would have equal role in most
    final/runoff elections (in the House).

22
Expectations Concerning the EC (cont.)
  • However, James Madison (a big-state
    representative and advocate) thought/hoped that
    big state electors would coordinate their
    electoral votes so as to keep the election out of
    the House (where small states would have the
    advantage).
  • It turns ot that Madison, not Mason, was correct
    in his expectation,
  • but not for the reason he gave.
  • It was generally hoped and expected that electors
    would typically be
  • popularly elected
  • from single-member districts, and
  • that they would be well-informed local notables
    who would act as representative trustees of their
    states and districts.

23
The Hazardous Game
  • But there were problems from the very start.
  • From the outset, electors (and those who selected
    them and everyone else) thought of a
    presidential election, not as an occasion to cast
    two votes for two worthy presidential candidates,
    but as an occasion to elect a preferred
    Presidential- Vice Presidential ticket.
  • In the very first election of 1789, it was widely
    agreed that
  • George Washington should be the first President,
    and
  • John Adams should be the first Vice President.
  • So electors were expected to cast one vote for
    Washington and one vote for Adams.
  • But note how this expectation was precarious
  • If just one elector were to cast one vote for
    Adams and one vote for anybody but Washington,
    Adams would be elected President and Washington
    would be relegated to the Vice Presidency.
  • On the other hand, if every elector did in fact
    cast one vote for Washington and one for Adams,
    there would be an electoral vote tie, sending the
    election to the House.

24
Schattschneiders Law
  • More serious problems in 1796 arose when
    Washington retired and the first contested
    Presidential election took place.
  • The framers expectations did not anticipate the
    development of a national two-party system.
  • Schattschneiders Law if you create a large
    popularly elected legislative body,
  • party caucuses will arise in the legislature, and
  • political parties will develop in the electorate.
  • Caucuses and parties are organized attempts to
    win by concentrating votes (through a bloc vote
    in the legislature or nominating process in
    elections) on a few motions or candidates,
  • They arise because ambitious politicians find it
    expedient to conspire with others to win these
    contests.
  • E. E. Schattscheider, Party Government (1942),
    Chapter 3

25
Schattschneiders Theory of Party Formation
  • We start with a pristine legislature that
  • is elective (though perhaps with less than
    universal suffrage) and
  • operates under majority rule.
  • Because it is pristine (i.e., unsullied by
    political organization), its votes tend be
    dispersed.
  • A legislative caucus a subset of members who
    agree to
  • caucus before every vote,
  • agree on a common position, and
  • always cast a bloc (concentrated) vote.
  • Concentrated votes typically beat dispersed
    votes, so
  • the caucus can expect to win given
  • a multi-alternative choice with plurality rule,
    or
  • a binary (e.g., yes/no) choice with majority rule
  • due to the unearned increment in politics.

26
Schattschneiders Theory (cont.)
  • Caucus organization and counter-organization
  • caucus expansion
  • a minimal winning coalition
  • the size principle (Riker)
  • Majority vs. Minority caucus -- options for
    minority
  • break up majority (a heresthetical Riker move)
    or
  • transform the minority caucus into a political
    party (a conspiracy of politicians)
  • that nominates candidates for office (concentrate
    votes).
  • Party counter-organization
  • the socialization of conflict.
  • William H. Riker, The Theory of Political
    Coalitions (1962)
  • William H. Riker, The Art of Political
    Manipulation (1986) heresthetics
  • E. E. Schattschneider, The Semisovereign People
    (1960)

27
Schattschneiders Theory (cont.)
  • Majority vs. minority party -- options for
    minority
  • break up majority (wedge issues) and/or
  • more effectively mobilize (its portion of the)
    electorate and/or
  • expand the electorate
  • examples
  • Jacksonian Revolution
  • 15th Amendment
  • British suffrage
  • apparent exceptions
  • women's suffrage
  • black disenfranchisement in South
  • Party formation and party competition takes
    legislative conflict to the country
  • the simplification of alternatives
  • Democracy is between the parties, not within the
    parties."

28
Duvergers Law
  • Duvergers Law If you have single-winner
    elections, you get (in equilibrium) two political
    parties, i.e.,
  • two rival organized attempts, each trying to
    concentrate votes on a single candidate.
  • Conversely, parliamentary systems using
    proportional representation in large districts
    tend to produce and sustain multi-party systems.
  • In part, Duvergers Law is driven by strategic
    (or tactical) voting by ordinary voters who are
    reluctant to waste their votes by voting for
    third candidates/parties that have no real chance
    of winning the single office at stake.

29
Duvergers Law (cont.)
  • In much greater part, Duvergers Law is driven by
    the strategic calculations of ambitious
    candidates and parties.
  • If a party splits and runs two (more or less
    clone) candidates, they will be spoilers against
    each other and throw the election to the other
    party.
  • This prospect of electoral disaster creates a
    huge incentive for even a highly factionalized
    party to unite behind a single candidate.
  • Conversely, if there are three significant
    candidates or parties are contesting an election,
    there is a huge incentive for two of them to
    make a deal under which one makes a strategic
    withdrawal in favor of the other (in return for
    something).
  • In general, each party in a competitive two-party
    system has a huge incentive to remain united and
    not split into rival factions that run candidates
    in general elections.
  • With respect to the Electoral College system,
    Schattschneiders Law Duvergers Law implies
    that (contrary to the Framers expectations) the
    House contingent procedure will be bypassed at
    least 19 times out of 20.

30
The Hazardous Game 1796
  • Schattschneider Jefferson was blocked in the
    cabinet, therefore he went to the country to
    start a backfire
  • to found the Republican (or Democratic-Republican)
    Party,
  • which nominated a single Presidential/Vice
    Presidential ticket to oppose Hamilton and the
    Federalists, and then
  • nominated party men (not independent and
    thoughtful trustees) as candidates for elector
    positions.
  • The first contested Presidential election
  • Federalists John Adams (MA) Thomas Pickney
    (SC)
  • Republicans Thomas Jefferson (VA) Aaron Burr
    (NY)
  • They were nominated by their respective
    Congressional Caucuses.
  • Each party nominated elector candidates pledged
    to vote their partys candidates.

31
The Hazardous Game1796 (cont.)
  • Intra-Federalist maneuvering
  • Hamilton (continuing to feud with Adams)
    unsuccessfully urged some Southern electors to
    vote for Pickney anybody but Adams
  • However, some New England electors learned about
    this and withheld votes from Pickney.
  • Republican lack of discipline second votes of
    their electors were widely dispersed.
  • The electoral vote outcome was very close
  • Federalists won 71 electors, all of whom voted
    for Adams, giving Adams the required majority of
    70 for election as President.
  • Republicans won 68 electors, all of whom voted
    for Jefferson.
  • But the withholding of second votes from Pickney
    lowered his vote total to 59, dropping him to
    third place behind Jefferson,
  • so the defeated Republican Presidential candidate
    became Vice President,
  • while Burr won only 30 votes.

32
Lessons from the Hazardous Game
  • Electors were expected to be party men,
  • who always voted at their partys call, and
    never thought of thinking for themselves at all
  • i.e., pledged electors.
  • However, Samuel Miles (Fed., PA) violated his
    pledge.
  • An angry Federalist supporter complained What,
    do I chuse Samuel Miles to determine for me
    whether John Adams or Thomas shall be President?
    No! I chuse him to act, not to think.
  • Pledges must extend to second votes.
  • State legislative elections (perhaps coming a
    year or more in advance of Presidential
    elections), become very important for politicians
    with national ambitions, because
  • legislatures chose how to select electors and may
    change the method from election to election and
  • legislatures may choose to appoint the electors
    themselves.

33
Lessons from the Hazardous Game (cont.)
  • A party that controls a state legislature may not
    want to risk a popular election for electors.
  • States using legislative election increased to 10
    in 1800.
  • And if a controlling party is confident it can
    win popular election, the particular mode of
    popular election can be manipulated (e.g., to
    winner-take-all) to short-term party advantage.
  • Jefferson to Monroe (1800) All agree that an
    election by districts would be best if it could
    be general, but while ten states choose either by
    their legislatures or by a general ticket, it is
    folly or worse for the other six not to follow.

34
The Hazardous Game 1800
  • Largely a repeat of 1796
  • same candidates (except one Pickney replaced by
    another) and
  • same battle lines.
  • However, the strategic implications of the EC
    rules were (even) better understood
  • manipulation of elector selection and
  • danger of dispersing second votes.
  • The election of 1800 was as close as 1796 but
    tipped the other way.
  • Republicans won 73 electors vs. 65 for
    Federalists.
  • The Republicans (unlike the Federalists) failed
    to withhold one Vice Presidential electoral
    vote.
  • Jefferson 73
  • Burr 73
  • Adams 65
  • Pickney 64
  • Jay 1

35
The Hazardous Game 1800 (cont.)
  • But the original EC rules did not distinguish
    between Presidential vs. Vice-Presidential
    electoral votes.
  • So the election was thrown into House, under
    the contingent procedure,
  • choosing between the tied candidates Jefferson
    and Burr only.
  • Burr did not chose to withdraw.
  • Note that the single Federalist elector who voted
    for Adams and Jay could have voted for Adams and
    Burr,
  • in which case Burr would have immediately been
    elected President on the basis of electoral votes
    (without a House election) and
  • Jefferson would have remained Vice President.
  • Until 20th Amendment (1933), a newly elected
    Congress did not convene until late in the year
    following Congressional elections,
  • so the 1800 Presidential election was thrown into
    the lame duck House elected in 1798.

36
The Hazardous Game 1800 (cont.)
  • The lame-duck House was still controlled by the
    Federalists (55-50), though Republicans
    controlled the House elected in 1800,
  • but the Federalists did not control a majority of
    state delegations.
  • Republicans controlled 8 state delegations.
  • Federalists controlled 6 state delegations.
  • Two state delegation were equally split.
  • There were 16 state delegations, so 10 votes were
    required for election.
  • Each delegation would decide how to vote by
    majority vote within the delegation.
  • Evidently, all Republican representatives
    supported Jefferson as the intended Presidential
    candidate.
  • Likewise, all Federalist representatives
    supported Burr, in order to deny the presidency
    to more formidable Jefferson.
  • The two internally tied delegations had to
    abstain.
  • For 35 ballots, the House deadlocked Jefferson 8
    and Burr 6 with 2 abstentions.
  • Ultimately, the four Federalists within in the
    tied delegations abstained, resulting in
    Jeffersons election on the 36th ballot.

37
The 12th Amendment
  • After the 1800 fiasco, Congress proposed, and the
    states quickly ratified (in time for 1804
    election), the 12th Amendment to the
    Constitution.
  • Electors now cast separate (single) votes for
    President and Vice President.
  • The required electoral vote majority for
    President (and for Vice President) is a simple
    majority of votes cast ( number of electors),
    which at most one candidate can achieve.
  • If no candidate receives the required simple
    majority for President, the House (still voting
    by state delegations) chooses from among the top
    three vs. top five candidates.
  • If no candidate receives the required majority
    for Vice President, the Senate (voting
    individually) chooses from among the top two
    candidates.
  • Early drafts of the amendment included a
    requirement that electors be popularly elected
    from districts, but this provision was later
    dropped.
  • The 12th Amendment remains the constitutional
    language governing Presidential elections.

38
The Transformation of the Electoral College
  • By the 1830s, the Electoral College, already
    formally modified by the 12th Amendment that
    accommodated a two-party system, had been further
    transformed into the kind of (essentially)
    automatic popular vote counting system that
    exists today.
  • This transformation
  • was driven largely by the development of a
    two-party system, and
  • was brought about without any further
    constitutional amendments or (with one minor
    exception) change in federal law,
  • but rather by changes in state laws and party
    practice.

39
Elements of the Transformation (cont.)
  • In early elections, the mode of selecting
    Presidential electors was regularly manipulated
    by party politicians in each state, on the basis
    of partisan calculations.
  • By 1832, Presidential electors were almost
    universally selected by popular (vs. legislative)
    vote (and by much expanded electorates).
  • South Carolina was the lone hold out.
  • By 1836, the mode of popular election in every
    state was (following Jeffersons strategic
    advice) the general ticket (or party slate),
    rather than election from districts (or by some
    kind of proportional representation).
  • This induced the almost universal
    winner-take-all rule for the casting electoral
    votes at the state level.
  • However, at the present time two small states (ME
    and NE) use the Modified District Plan.

40
Mode of Elector Selection (cont.)
  • Why were state legislatures willing to give up
    the power to select Presidential electors?
  • The intensity of party competition declined after
    1800.
  • Legislative appointment of electors was
    disrupting state legislative elections.
  • cf. the willingness of state legislatures to
    ratify the 17th Amendment (popular election of
    U.S. Senators)
  • Why did election of electors by districts give
    way to election of electors at-large (usually on
    a slate or general ticket)?
  • In general, the advantage of concentrating votes.
  • Partisan strategic considerations,
  • as expressed by Jefferson to Monroe in 1800.
  • More important state strategic considerations.
  • No matter what other states may do, each state
    could enhance its influence in Presidential
    politics by casting electoral votes on a
    winner-take-all basis.
  • There is no equilibrium until all states use
    the winner-take-all method.
  • It turns out that this equilibrium results in a
    new balance of Electoral College voting power
    that is more favorable to the large states, more
    than counterbalancing the small-state advantage
    in apportionment of electoral votes.

41
Bypassing the Contingent Procedure
  • Given a two-party system accommodated by the 12th
    Amendment, it is virtually assured that one or
    other Presidential (and Vice Presidential)
    candidate will receive the required majority of
    electoral votes.
  • Thus Madisons hope to keep the election out of
    the House was realized,
  • not by coordination among the big states, but
  • by coordination (a nominating process) within
    each of two political parties.
  • In this way, the Electoral College system was
    transformed into something in two ways more
    favorable to large states than the Framers
    expected, i.e.,
  • not only do large states gain more power in the
    first (electoral vote) stage (due to
    winner-take-all electoral votes), but also
  • the second (House contingent election stage)
    stage (where small states have equal power) is
    almost always bypassed.

42
Inverse Duvergers Law and the Election of 1824
  • The inverse of Duvergers Law implies that
  • if one of the parties in a two-party system is
    greatly weakened, or is unable or unwilling to
    compete for votes effectively,
  • the dominant party is very likely to break apart,
    because the external threat that otherwise keeps
    its factions together is removed.
  • The election of 1824 (the second and last time an
    election was thrown into the House) is the
    exception that proved the rule that a two-party
    system bypasses the contingent procedure.
  • The Federalist Party had collapsed and the
    Democratic-Republican Party was unchallenged.
  • Consequently there was no longer pressure for
    D-Rs to unite behind a single Presidential-Vice
    Presidential ticket.
  • Four candidates, all nominally belonging to the
    same D-R party, sought the Presidency.
  • Unsurprisingly, no candidate received a majority
    of the electoral votes and the election was
    thrown into the House.

43
The Election 1824 (cont.)
  • The four candidates were
  • John Quincy Adams (Secretary of State)
  • Henry Clay (U.S. Representative and Speaker of
    the House)
  • William Crawford (Secretary of the Treasury)
  • Andrew Jackson (hero of the Battle of New
    Orleans and representative of the common
    man)
  • Presidential election results (first
    round)
  • Electoral Votes
    Popular Votes
  • Jackson 99 41
  • Adams 84 31
  • Crawford 41 11
  • Clay 37 13
  • Others 0
    4
  • Bear in mind that six states still appointed
    electors and that states that used popular
    election varied considerably with respect to the
    extent of franchise.

44
The Election of 1824 (cont.)
  • Clay was the natural compromise candidate,
  • i.e., most everyones second choice, so
  • he probably could have defeated each other
    candidate in a straight fight)
  • But Clay was squeezed out of third place in the
    electoral vote ranking by Crawford.
  • Under the 12th Amendment, the House could chose
    only from among top three candidates.
  • Clay probably would have been elected president
  • if the House could still chose among the top five
    candidates or
  • if Crawford had not been a candidate (i.e., so
    Crawford was a spoiler to Clay).
  • Even if Adams or Jackson had won all the
    electoral votes cast for Crawford, Clay would
    have been among top three candidates.
  • However, if Jackson had won at least 32 of
    Crawfords electoral votes, Jackson would have
    been elected without a House runoff.

45
The Election of 1824 (cont.)
  • New Yorks 36 electoral votes were split among
    all four candidates.
  • If Adams had won Crawfords five electoral votes
    in addition to the 26 he actually won, this
    probably would have caused Adams to lose the
    election, as Clay then would then have placed
    third in electoral votes and probably won the
    House runoff.
  • This provides a historical example of
    monotonicity failure under instant runoff
    elections.
  • Clay had great influence in the House, detested
    Jackson, and endorsed Adams.
  • Adams (just) won on the first ballot (24 state
    delegations)
  • Adams 13
  • Jackson 7
  • Crawford 4
  • Adams subsequently appointed Clay Secretary of
    State.
  • Jackson and his supporters denounced the corrupt
    bargain between Adams and Clay.
  • The Adams vs. Jackson rivalry led to a new party
    system
  • National Republicans (later Whigs) vs. Democrats

46
House Runoff
  • Whenever there is a serious third-party ticket
    (especially one with a geographical base of
    support such that it may win electoral votes),
    the possibility arises that the election may be
    thrown into the House arises.
  • Moreover, since the 23rd Amendment (giving the
    District of Columbia three electoral votes) was
    ratified in 1961, the total number of electoral
    votes has been an even number (538),
  • so a 269-269 electoral vote tie is possible, and
  • an election might be thrown into the House even
    in the absence of a third-party candidate winning
    election votes.
  • Prior to the 1825 House election, the House
    adopted special rules for its conduct.
  • These rules remain in effect and would
    (presumably) by used in any future House election.

47
The EC as a Vote-Counting Mechanism
  • In 1845 Congress established a uniform nationwide
    Presidential election day (i.e., day for
    selecting Presidential electors), namely
  • the Tuesday after the first Monday in November.
  • On Tuesday, November 6, 2012, voters in each
    state went go to the polls and voted for either
    the Democratic or Republican (or possibly some
    other) slate of elector candidates, pledged to
    their partys (Pres. VP) nominees.
  • With popular election of slates of pledged
    electors, American voters may be forgiven for
    thinking they are actually voting directly for a
    Presidential-Vice Presidential ticket.
  • Often only fine print on the ballot indicates
    otherwise
  • and in some states not even that.

48
Vote-Counting Mechanism (cont.)
  • In each state (including ME and NE), the elector
    slate receiving the most votes was elected.
  • The electors will meet in their state capitals in
    mid-December and cast their electoral votes as
    pledged.
  • Electoral vote tallies will be transmitted from
    each state capital to Congress and will be
    counted before a joint session on January 6,
    2009.
  • The President of the Senate Vice President
    Biden will announce the votes for President and
    Vice President and proclaim the winners to be the
    President-elect and Vice President-elect.
  • So everything was determined on election night in
    November, and the remaining steps are merely
    ceremonial T
  • TV prognosticators could
  • report the popular vote winner in each state,
  • add up the corresponding electoral votes, and
  • declare a President-elect.

49
What Can We Do About It?
  • State legislatures can change mode of appointment
    of electors, e.g.,
  • CO Proposition 36 in 2004,
  • CA in 2008 and PA 2012.
  • But individually they have disincentive to depart
    from winner-take-all.
  • And such changes do not address either the
    election inversion or contingent procedure
    problem
  • indeed, they would might make contingent
    procedure more likely.
  • And they would create greater departures from
    national uniformity.
  • Congress can do almost nothing by legislation.
  • The constitutional amendment process can make any
    change but requires broad consensus.
  • Proposals such as those in 1940s and 1950s to
    modify EC are now rarely discussed.

50
Direct Popular Vote
  • By constitutional amendment, the Electoral
    College could be abolished and replaced by a
    national election for President (and Vice
    President),
  • with or without an runoff (instant or
    otherwise), and
  • perhaps (if a runoff is used) using a 40 (rather
    than 50) quota for election in the first round.
  • Such a national popular vote might/should entail
    national administration of Presidential (and
    Congressional?) elections, including
  • nationally uniform voter qualifications,
  • national voter registration (and voter ID
    requirements, if any),
  • nationally uniform ballot types and voting
    technology,
  • nationally uniform rules for ballot access
    (listing of candidates), etc.
  • Such a proposal passed the House in 1969 but
    failed in the Senate.

51
The National Popular Vote Plan
  • This is a clever but (in my view) flawed proposal
    to (in effect) enact a direct national popular
    election for President
  • without using a constitutional amendment.
  • It rests on two provisions in the Constitution
  • state legislatures have sole power over how their
    Presidential electors are selected, and
  • with the consent of Congress, states may enter
    into interstate compacts.
  • NPVP proposes that states collectively
    controlling at least 270 electoral votes enter
    into an interstate compact
  • that would commit them to select Presidential
    electors who would cast their electoral votes,
  • not for the candidate who carries their state,
    but
  • for the national popular vote winner.
  • States with 132 electoral votes have currently
    endorsed the compact.

52
National Popular Vote Plan (cont.)
  • Since national popular vote winner means
    plurality winner,
  • NPVP would also preclude the House contingent
    procedure (barring a national popular vote tie).
  • However, NPVP does not (and cannot) address the
    problems entailed by direct popular vote
    previously identified in particular,
  • runoff or related provisions and
  • national rules for and administration of
    Presidential elections.
  • Fundamental problem There is no officially
    certified national popular vote winner.
  • The NPVP takes account of the possibility of
    national popular vote tie, in which case
    electoral votes would be cast in the normal
    manner.
  • But realistically, if the national popular vote
    were very close (let alone tied), a national
    recount would be expected.
  • How could a state not in the compact be required
    to participate in a recount?

53
Problems with the NPVP
  • Would the compact hold, especially in the event
    of an extremely close/disputed (with respect to
    the national popular vote) election?
  • In every election, some states in the compact
    would be required to cast electoral votes for the
    candidate that lost the popular vote in that
    state.
  • In some (close) elections, such electoral votes
    would be decisive.
  • In particular, would the compact hold in the
    event that there would otherwise be an election
    inversion (the very event the NPVP is designed to
    preclude)?
  • In sum, I foresee many unforeseen difficulties
    with NPVP.

54
The American Party Systems
  • Historical party systems separated by realigning
    elections or periods
  • Framers' Non-Partisan System (1789-1792)
  • First Party System (1796-1816)
  • Democratic-Republicans vs.
    Federalists
  • (agrarian/labor)
    (commercial/financial)
  • (mostly South West)
    (Northeast especially N.E.)
  • Congressional Caucus nominating system
  • Era of Good Feelings and One-Party Factionalism
    (1820-1824)
  • collapse of Federalist Party
  • collapse of Congressional Caucus

55
American Party Systems (cont.)
  • Second Party System (1828-1852)
  • Democrats vs.
    Whigs (Nat. Reps. Anti-Masonic)
  • (agrarian and lower-class)
    (commercial and upper-class)
  • largely non-sectional
  • rise of mass parties and campaigns
  • origins of party organization based on patronage
  • greatly increased franchise and turnout
  • creation national nominating convention
  • extensive third party activity
  • Civil War Disruption (1856-64)
  • Democrats vs.
    Republicans (N. Whigs Free Soil)
  • (pro-South)
    (North)

56
American Party Systems (cont.)
  • Third Party System (1868-1892)
  • Democrats vs.
    Republicans
  • (agrarian labor immigrants)
    (commercial/industrial)
  • (South plus some North)
    (most of North)
  • very close and high-turnout elections from 1874
    onward
  • frequent divided government
  • after 1876, consolidation of Solid South
  • rise of political machines based on patronage
  • highpoint of party-dominant nominating politics
  • introduction of Australian ballot
  • agrarian protest third party movements

57
American Party Systems (cont.)
  • Fourth Party System (1896-1928)
  • Democrats ( Populists) vs.
    Republicans
  • agrarian plus immigrants)
    (commercial/industrial)
  • (South plus some West and some cities)
    (Northeast Midwest)
  • maximal sectionalism
  • black disenfranchisement in the Jim Crow South
  • rise of Progressive political reforms
  • voter registration, primaries, initiative and
    referendum, etc.
  • decline of voting turnout
  • rise of mixed system of nomination (with
    Presidential primaries)
  • political machines begin to decline

58
American Party Systems (cont.)
  • Fifth (New Deal) Party System (1932-1968)
  • Democrats vs.
    Republicans
  • (labor/ethnic/urban plus South) (business
    prof. outside of South)
  • class based politics (outside of South)
  • New Deal vs. anti-New Deal
  • increased turnout
  • civil rights movement and cracks in the old
    Solid Democratic South
  • conflict between new reformers and old bosses
  • origins of mass media campaigns, etc.

59
American Party Systems (cont.)
  • Sixth Party System (1972-2000?)
  • Democrats vs.
    Republicans
  • (liberals)
    (conservatives)
  • (pro-New Deal remnant)
    (anti-New Deal remnant)
  • (great majority of non-whites)
    (majority of whites)
  • largely non-sectional but low turnout
  • rise of social/cultural issues
  • rise of candidate-oriented Pres. nominating
    politics
  • migration of white Southerners from Dem gt Rep
  • rise of candidate-centered politics and media
    campaigns
  • era of divided government (Rep. Presidents vs.
    Dem. House)

60
American Party Systems (cont.)
  • Seventh Party System (2000? - ???)
  • Democrats vs.
    Republicans
  • (blue states)
    (red states)
  • coastal America
    middle America
  • secular America
    religious America
  • (great majority of non-whites)
    (majority of whites)
  • increased turnout
  • dominance of social/cultural issues
  • solidification of solid Republican South
    (Cong. Pres.)
  • strengthened party identification in electorate
  • greatly strengthen party unity in Congress
  • extremely close Presidential and Congressional
    elections
  • resumption of unified government?
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