[EL] An Electoral College Tie?

Thu Dec 15 12:29:17 PST 2011

I think that Richard’s comment actually gets at a key point that undermines much of the case for NPV. There are many arguments for NPV, but the key one is that direct popular vote is either the only or at least the most legitimate way to select the president.  Every poll shows that substantial majorities agree.

Yet oddly enough, nobody really much cares that we routinely elect executives without popular majorities. And despite the fact that many leading proponents of NPV say we should use popular vote because “the president should be chosen by a majority of our citizens” (Birch Bayh, in Kaza et al. Every Vote Equal, at xxii), or because “majority rule [is] a fundamental tenant of our democracy (John Anderson, Kaza et al at xviii) in fact, as Richard points out, NPV doesn’t do what Senator Birch says he wants and what Rep. Anderson says is “fundamental.”

Those of us who understand elections also understand that there are numerous ways to hold elections, and we know that huge numbers of elections are held in both private and public organizations that violate the majority rules concept – or even the plurality rules. Moreover, we know that voting procedures frequently place limits on majority opinion, the most obvious perhaps being super-majority requirements.

I don’t see any reason why having a president who did not receive a national plurality (let alone a national majority) is more inherently  more disturbing than having a House or a Senate whose majority did not receive a majority or even a plurality of votes, or a speaker of the House or Leader of the Senate who was elected by members representing less than a majority or even a plurality.

And there seems to be little reason to believe that the American people are particularly worked up about it either. Richard points out that we routinely elect executives who had more people vote against than for them – sometimes by quite substantial margins. Yet they do not face a crisis of legitimacy.

In my observation, despite what they say when a single, out of context question is posed to them in a poll, people are much more attuned to following what seem to be reasonably fair, agreed upon rules in advance, rather than insisting that only one rule (majority or plurality rule) can ever be fair; majorities quite routinely accede to the desires of minorities; voting systems are quite routinely established to deny majority – let alone plurality – victory. By the same token, people are happy, in many cases, to accept plurality winners – so much so that Messrs. Bayh, Anderson, and others toss around the term “majority” when they appear to mean “plurality” without even thinking much about it.

If we are to believe many NPV supporters, there should have been a national uproar after the 2000 election. Well, to some extent there was – but it was not over the electoral college. At all times very substantial majorities seemed quite content with the knowledge that the Florida winner would claim the presidency. Efforts to abolish or change the electoral college – including NPV – remained the hobby horses of a small number of well-financed good-government groupies, not any kind of mass movement.

In short, we live in a country that is clearly dedicated to popular rule, but within the rule of law, and with popular not always – in fact perhaps surprisingly rarely – defined as majority or even plurality vote at any given moment.

As a result, NPV proponents seem to constantly assuming what they ought to be proving – that NPV actually would result in better governance, or truly is more “fair” – once we define fair, and get beyond the facile proclamations such as those found in the movement’s magnum opus, Every Vote Equal.  Here, I think that the case that has been made for effectively abolishing the electoral college is exceedingly weak, based more on horror stories of improbable counterfactual scenarios and presumed but not particularly probable reactions of the public to those scenarios.

Conversely, those who would defend the Electoral College need not defend the process for choosing a president in the House of Representatives, though I believe it can be defended – rather, they need to defend the Electoral College system as a whole against NPV, because it is the Electoral College that NPV seeks to effectively abolish, not just the House of Representatives contingency. That’s not that hard, if only because NPV supporters have done so little to show that NPV would result in better presidents or better government.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Designated Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Richard Winger
Sent: Thursday, December 15, 2011 2:26 PM
To: law-election at department-lists.uci.edu; MarkScarberry
Subject: Re: [EL] An Electoral College Tie?

I don't believe we should be so frightened of the idea that a winning presidential candidate might have received only 40% of the total popular vote.  45 of the 50 states elect their Governors like that.  Whoever gets the most votes wins, period.  Louisiana, Washington, California and Georgia force a majority vote by having a round with only two candidates on the ballot, and Vermont lets the legislature choose when no one gets a majority for Governor.  In the other 45 states, a winning gubernatorial candidate just needs more votes than anyone else.

The lowest share of the popular vote any winning gubernatorial candidate ever got in the last 170 years was in Washington state in 1912, when the Democratic nominee, Ernest Lister, won with only 30.6% of the popular vote.  In that election, the Republican nominee got 30.4% and the Progressive nominee got 24.4%.

Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147

--- On Thu, 12/15/11, Scarberry, Mark <Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>> wrote:

From: Scarberry, Mark <Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>>
Subject: Re: [EL] An Electoral College Tie?
To: "law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>" <law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>>
Date: Thursday, December 15, 2011, 11:02 AM

In such a case, would we really want the national plurality vote winner (perhaps with 40% of the vote) to become President?

Perhaps if no candidate receives a majority of the electoral vote then, instead of the current system or the national popular vote system, there should be a choice of the President either by a joint session of Congress or by vote of the House (with each member having one vote).

Of course that would require a constitutional amendment, but in my view it would also take a constitutional amendment to move to a popular vote system, at least to one that has a blackout period like the proposed NPVIC.

Mark

Mark S. Scarberry

Pepperdine Univ. School of Law

Malibu, CA 90263

(310)506-4667

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Justin Levitt
Sent: Thursday, December 15, 2011 10:23 AM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] An Electoral College Tie?

It's not just a tie that could send the election to the House of Representatives ... I believe it's any lack of a majority.  If, for example, the Americans Elect candidate wins enough electoral votes to deprive either the Republican nominee or the Democratic nominee of an Electoral College majority, the House decides the election.

Justin

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Justin Levitt

Associate Professor of Law

Loyola Law School | Los Angeles

919 Albany St.

Los Angeles, CA  90015

213-736-7417

justin.levitt at lls.edu</mc/compose?to=justin.levitt at lls.edu>

ssrn.com/author=698321

On 12/15/2011 9:37 AM, Dan Johnson wrote:

I'd love to see opponents of the National Popular Vote mount a robust defense of the House of Representatives in a one-vote-per-state-delegation selecting the President (the result of a not-implausible tie in electoral votes).

Because, after all, that is what they are defending. A tie will eventually occur. Let us hope that the National Popular Vote compact is established and confirmed by the Supreme Court before that mathematical certainty rears its ugly head.

Dan

On Thu, Dec 15, 2011 at 11:24 AM, Rick Hasen <rhasen at law.uci.edu</mc/compose?to=rhasen at law.uci.edu>> wrote:

“An Electoral College Tie?”<http://electionlawblog.org/?p=26579>

Posted on December 15, 2011 9:18 am<http://electionlawblog.org/?p=26579> by Rick Hasen<http://electionlawblog.org/?author=3>

National Journal ponders<http://decoded.nationaljournal.com/2011/12/an-electoral-college-tie.php>.

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Justin Levitt

Associate Professor of Law

Loyola Law School | Los Angeles

919 Albany St.

Los Angeles, CA  90015

213-736-7417

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