Tuesday, November 13, 2012

Posner's Wrong about the Electoral College

Richard Posner has written a defense of the Electoral College, which is one of the several elements of our national Constitution which I don't like. I read his defense of the EC last night, and wasn't persuaded. I didn't intend to write anything in response, but then my friend Michael Austin proposed it as a matter for debate on his Arguing as Friends blog. I wrote this lengthy response there...and since I'd written, I figured, why not include it here? So here you go everyone: why famed lawyer and intellectual Richard Posner is all wrong in his defense of the Electoral College:

1) Posner claims that because of the winner-take-all distribution of electoral college votes in nearly all of the states, we have mathematically clearer counts of the winner in an election than would be the case in a national popular vote. I would respond: true, but irrelevant. Any accepted count of votes, electoral or popular, is “clear” exactly to the extent to which people accept the math supporting said count. Would a national popular vote result in less acceptance, more demands for recounts and litigation? Probably–for the first election cycle, at least. But would it continue? Or would judges be forced to establish precedents for counting votes, states be forced to upgrade their voting technology and training, parties be forced to adjust their campaign strategies to minimize such close and legally costly outcomes? I think the latter is far more likely, and thus a new understanding of what makes for “certainty of outcome” would emerge relatively quickly.

2) Posner says the Electoral College forces successful presidential candidates to have transregional appeal. The two-fold flaw with this claim is a) it depends upon a rather limited and historically exclusive definition of what consists of “regional” (does the fact that Obama won the large urban areas on both the East and West coasts make him “transregional”? does the fact that Romney won the South but lost Florida, or won the Intermountain West but lost Colorado, mean that he didn’t actually have “regional” appeal?), and b) it runs against the bedrock (and Supreme Court articulated) standard for a representative democracy that what needs to be counted are the votes of citizens (“one person, one vote”), not where those citizens come from.

3) Posner argues that because the math of the Electoral College forces candidates to spend a lot of time in certain swing states to try to win their votes, the result is that citizens in those states which are likely to decide the election receive enough attention and information from the candidates that they become highly informed voters, and we want the decision for the presidency to rest in the hands of highly informed people. But this tautological. One could just as easily say that, with a national popular vote, the candidates would spend a lot of time and money trying to communicate with people in major media markets, with the result that the people in those media markets would be highly informed, and that’s a good thing, because major media markets serve large population centers, and of course we want the election to be in the hands of those population centers where there are lots of highly informed voters. His claim proves nothing.

4) Posner's weakest claim is that the Electoral College fixes some of the undemocratic consequences of the Senate by forcing presidential candidates to often spend lots of time in big states, giving them a level of electoral consequence which better fits the number of citizens who live within them. Well, yes, all that is true…but it would be even more true if you simply had a national popular vote, and allowed the millions of voters in those large states to make their votes matter directly (as is presently not the case with the millions of Republican voters in California or New York, or the millions of Democratic voters in Texas).

5) Posner's final argument is that, since the Electoral College makes clear majorities very likely, it eliminates the need for run-off elections. But the bug in this claim of his is actually a feature: why not have run-off elections for our chief executive? (They have them in France, after all.) He needs to make an argument for his position besides asserting how it supposedly would make our system irredeemably more complicated.

As a final note, Posner adds that the electoral college doesn’t discourage voters from “express[ing their] political preference.” I’m not sure what study he makes use of to support this claim; the simple fact that many people turn out to vote for losing candidates in safe states doesn’t mean that there aren’t any voters who would like to believe that their “single vote may decide an election.” Ultimately, people vote (as I well know!) for all sorts of different reasons, strategic and expressive alike. A national popular vote would allow all of those motivations to have their place, rather than being marginalized or magnified simply depending on where one lives.

One last thing: obviously, my disagreement with Posner here really begins with the simple fact that we very likely hold to fundamentally different theories of government, and presumably our different justifications for those theories differ greatly as well. Basically, I think it’s best to live in societies that are democratic in whatever areas of governance which can plausibly be conducted democratically, whereas he obviously doesn’t see democracy as nearly as normative as I do. So I don't expect to convince anyone who is by nature suspicious of democracy. But at the very least, I'd like people to come up with better arguments in defense of the Electoral College than these superficially smart but actually quite weak ones here.

4 comments:

Jacob T. Levy said...

I think the EC is a pretty pure test of whether one is Burkean/Oakeshottian. Ultimately it violates the most reasonable understanding of democratic suffrage; ultimately it doesn't matter that much, and the expected value of the leadership one will get in the future is probably unaffected. (It's important not to overinterpret the particular disaster that was 2000-- the fact that Gore won the popular vote then doesn't mean that he would have won it if the whole election had been run under NPV rules, and in expected-value terms the likelihood of a catastrophic president isn't plausibly affected by this choice of decision rules.) The distributive consequences are ultimately unclear and messy; swing states aren't all of a kind in demographic terms, the medium-sized states that are the most disadvantaged by the EC aren't all of a kind in demographic terms, etc. I think he case for change is straightforwardly: one person one vote. And the case against is straightforwardly: one doesn't change big longstanding institutions for the sake of a principle if there's no strong consequentialist justification running alongside the principled argument.

Carl Bankston said...

I think we are unlikely to be rid of the EC any time soon. Many are critical of it. Few actually favor it. But it has the force of inertia. The critics are not sufficiently opposed to change this long-standing practice.

It does seem to me important to recognize, though, that the EC does not function as originally intended. We do not choose experienced and knowledgeable electors who then make up their minds on who will be president. Instead, we vote for sets of electors who, with rare exceptions, do not make independent decisons. This means that there is a kind of popular vote under the EC, but a popular vote that is simplified to party blocs (in all states but 2). That does maintain the stability of the 2 party system. By the same token, though, it does limit choices and prevents any real chances for 3rd parties.

In the end, unless opposition to the EC becomes much more intense than it is, we are unlikely to find out if eliminating it would break down the 2 party system and, if so, if a more flexible and democratic system would be better.

toto said...

The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

Every vote, everywhere, would be politically relevant and equal in presidential elections. No more distorting and divisive red and blue state maps. There would no longer be a handful of 'battleground' states where voters and policies are more important than those of the voters in 80% of the states that now are just 'spectators' and ignored after the conventions.

When the bill is enacted by states with a majority of the electoral votes– enough electoral votes to elect a President (270 of 538), all the electoral votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states and DC.

The presidential election system that we have today was not designed, anticipated, or favored by the Founding Fathers but, instead, is the product of decades of evolutionary change precipitated by the emergence of political parties and enactment by 48 states of winner-take-all laws, not mentioned, much less endorsed, in the Constitution.

The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for President. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

In Gallup polls since 1944, only about 20% of the public has 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 (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in recent closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%. Americans believe that the candidate who receives the most votes should win.

The bill has passed 31 state legislative chambers in 21 states. The bill has been enacted by 9 jurisdictions with 132 electoral votes - 49% of the 270 necessary to go into effect.

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RES said...

Posners is wrong about electrol college. Good post