Two Cheers For the Electoral College

George Soros is funding an effort to undermine the Electoral College. The idea is to enter into a compact with other states in which each state agrees to require their electors to vote for the candidate who has won the national popular vote. The compact would not become effective until states comprising a majority of electoral votes have agreed.

The effort has resulted in the introduction of AB 751 in the Wisconsin legislature.

The proposal may well be unconstitutional under the Compact Clause. It is almost certainly motivated by partisan concerns. It isn't simply that Democrats tend to be more geographically concentrated. That can actually help if Democratic voters are packed in the right states. Thus, while Bush lost the popular election and won the electoral vote in '00, Kerry almost did the same thing in '04.

Rather, the back story is population trends that will move electoral votes to Republican states. For the first time in who can remember, California will not pick up a seat and the Midwest and Northeast continue to lose population to the south and southwest.

Republicans should not be too sanguine. Large influxes of people into a state can change its political composition. When I was a kid, California was a fairly Republican state. But there is, nevertheless, reason to suspect that the Electoral map is going to get tougher for Democrats.

On the merits, the preferability of a national popular vote is not obvious. In yesterday's Milwaukee Journal Sentinel, Rep. Kelda Helen Roys makes an argument that seems wrong.

Furthermore, every vote is not equal in presidential elections. Al Gore won five electoral votes by carrying New Mexico by 365 popular votes in 2000, whereas George W. Bush won five electoral votes by carrying Utah by 312,043 popular votes - an 855-to-1 disparity in the value of a vote between two similarly populated states.

It's not obvious to me that the fact that one state is close and another is not alters the "value" of a vote. The Electoral College does result in some disproportion in the weighting of a vote but it's not because some states are competitive and others are not. It's because each state gets two Senators regardless of population (and to, a lesser extent, the fact that some very small population states get one representative.)

But the fact that one vote has a "better" (albeit still infinitesimal) chance of deciding an election does not mean that it "counts more." Thus, in the example she cites, a vote in Utah had precisely the same Electoral weight as one in New Mexico.

A better complaint (and one that Rep. Roys also makes)is that the Electoral College forces candidates to give disproportionate attention to competitive states. To the extent that the policy preferences of these competitive states don't match the aggregate policy preferences of the nation, one can argue that this effect constitutes a "distortion" of the campaign.

That is a weakness of the Electoral College. But it is also its strength.

The Electoral College forces candidates to pay attention to states that they otherwise might not. But there may be a certain genius to that. Forcing candidates into battleground states requires the candidates to engage each other before an electorate that is truly up for grabs and to do so by engaging - at least to some degree - in retail politics - much as the Iowa caucuses and New Hampshire primary do in the nomination process.

If you see a campaign as a dialogue in which candidates must engage the voters as opposed to a ratification of preexisting interests, there may be some value in this. A campaign resulting in a national popular vote would look very different than our current campaigns. It would be even more media intensive and, I suspect, more ideologically polarized.

Part of your attitude toward the electoral college will depend on how important you think state and geographic interests are. At the time of the founding, it mattered a great deal. While the electoral college does not guarantee broad geographical support, it tends to force candidates to take into account the interests and preferences of parts of the country that it might otherwise be rational to ignore. It can enhance the influence of minorities who, while they may be insignificant nationally, are important in a critical state.

If you don't buy that, then there are other "reforms" that might interest you such as allocation of Senate seats by population. Perhaps you may even want to consider abandon of single member districts elected by the Westminster method of "first past the post" in favor of multi-member districts with proportional representations. To extend Rep. Roys' reasoning, her district is heavily Democratic and not competitive. In fact, it was probably intentionally drawn to be that way.

Borrowing from her concept of the "value" of a vote, there is a sense in that her constituents have less impact on the composition of the assembly - and, therefore, which laws get passed and which do not - than a voter in a competitive district. If the national - or statewide - policy and will is what matters, then I ought to be far more interested in whether the Republicans or Democrats hold Congress or the State legislature than I am in the identity of "my" legislator.

To be sure there are differences between an election for President and one for a legislator who, by certain theories of representation, is supposed to represent the geographic interests of her constituents. My only point is that the matter is far more complicated than reification of the national popular vote and that we ought to be reluctant to take a position on whose ox we think will be gored.

Cross posted at Marquette University Law School Faculty Blog