Electing Our President

“Hillary Clinton won the popular vote in 2016 so she should be the president.” This has been a constant refrain since the election, and factually the total of the votes for electors pledged to her was more than the total of the votes for electors pledged to Donald Trump. However, she did not receive a majority of those votes, and a substantial number of people voted for the Libertarian and Independent candidates and for the Green Party candidate. Had those votes decided the election and if we had a first past the post rule, she would have won as a minority president with a clear though small majority having voted against her.

In 1992, I remember Democrats applauding the electoral college for delivering a clear majority for Bill Clinton over George H.W. Bush. Clinton received only 43% of the total vote for electors but won because Ross Perot split the opposition. A majority of the country did not favor Clinton, but because of first pass the post voting and the electoral college he won decisively.

There is also the issue of the electorate. With our current system, the outcome in most states is apparent long before election day, and this suppresses turnout because your vote does not really matter. In 2016, this was especially true in California. Who would have voted if the election were decided by the popular vote? Interesting question and unknowable, but it is likely the totals would have been different. Maybe even the outcome.

Elizabeth Warren says to make every vote count. There is an easier way to accomplish that: allocate electoral votes proportionately by state based on the popular vote. This would accomplish nearly everything that going to a popular vote would do with much less collateral damage to our federal system. Every vote would potentially matter. Candidates would have to pay attention to more states than Florida and Ohio. Republicans would have to campaign in New York and California, and Democrats in Georgia and Texas. Interestingly, Florida and Ohio get far less attention because they are really only one vote.

However, it does not resolve the election any easier. In 2016, 28 of the 538 electoral votes would have gone to the minority candidates. Hillary Clinton would have had a few more electoral votes that Donald Trump but not a majority. The election would have been decided by those 28 electors if they were faithless and changed their minds. If they did not, the election would have fallen to the House on a one state, one vote basis so Donald Trump presumably would have become president.

What allowed Trump to win and Clinton to lose was not the electoral college but the winner takes all rule for allocating electors. That is why his margin was 78,000 votes: the number of votes that had to change for him to lose Michigan, Pennsylvania and Wisconsin. Not many but more than the 503 votes in Florida that elected George W. Bush in 2000. (And no, Al Gore did not win. The major newspapers paid for a full recount that found that Bush won very narrowly. The only way he could have won was through a partial recount of only those counties that voted for him. It was this partial recount that was blocked by the U.S. SUpreme Court.)

The same issue applies to legislative districts. I don’t understand the Democratic fascination with gerrymandering. Every impartial study I have read has found the net impact to be five or fewer seats in the U.S. House of Representatives. The issue is electing people by single member districts. There was a swing of 7 million votes between 2016 and 2018 in terms of total votes for Republican and Democratic candidates and the Democrats gained control. However, less than 50,000 changed votes in the most marginal districts would have given control to the Republicans. 50,000.

Several of the lawsuits that have been filed about gerrymandering are really about single member districts, most notably Wisconsin. To meet the demands of the plaintiff every district in the state would have had to include some sliver of Milwaukee and the state would have been divided like pie slices coming out of there. The courts have no conceivable claim to order that we leave single member districts so the claim is gerrymandering. It is nonsense.

The issues are political. The country is center-right by a small margin, and the Democrats are moving to left from center left. In addition, Democratic voters are more geographically concentrated that Republican voters. Democrats want structural change not because of a deep interest in civics but because they think it enhances their chances for power. The reverse is true for Republicans. This is a faux debate over principle hiding a substantive debate over power.

However, there are real questions here for the country to decide. What is the right way to elect our officials? There are many solutions all with multiple implications. Popular vote or proportional electoral vote make every vote count in some sense, but which states matter most changes a lot. Do we serve the country better with a focus on large, competitive states as opposed to large, less-competitive states?

Secondly, who wins? English tradition for better or worse is first past the post which works fine in a clear, two party systems. Governments in the U.K. claim landslide victories with less than 40% of the vote. What is the floor? Should a winning candidate have a floor percentage before there is a runoff? 50% as in France? 40% as in some other countries?

Germany has a race by state by party. They elect half the legislature by single member districts, but they don’t matter much. The division of seats is done by proportional representation by party and the members elected by district basically go to the top of the list for their party. This is really what the Wisconsin lawsuit was asking for.

There is this idea of bypassing the Constitution and moving to a popular vote system by Interstate Compact. States would voluntarily agree to allocate their electoral votes based on some national popular vote total. This is ingenious. However, it is fraught with issues. What happens if a state withdraws? How do you handle a recount? How do you make every state recount the votes? How are disputes resolved? Compacts are not constitutional amendments.

Which states do we want as the focus in Presidential elections? How do you feel about encouraging minority parties? How much support should a winning candidate have to win? — — These are the questions to answer. Once they are answered, we can design the electoral system we want.