THE U.S. ELECTORAL COLLEGE: ORIGINS AND TRANSFORMATION, VARIANTS AND PROBLEMS

1. THE U.S. ELECTORAL COLLEGE: ORIGINS AND TRANSFORMATION, VARIANTS AND PROBLEMS Nicholas R. Miller UMBC LSE/VPP Talk May 6, 2008 http://userpages.umbc.edu/~nmiller/ELECTCOL.html

2. Overview of Talk • Outline the original design of, and expectations for, the Electoral College • Describe the rapid transformation of the Electoral College into the popular vote-counting mechanism that exists today • Identify criticisms of the Electoral College • Identify Variants of, and Alternatives to, the Electoral College • Analyze the EC and variants with respect to (i) voting power and (ii) election reversals. • The last is based on ongoing and incomplete research.

3. Evaluations of the Electoral College • The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. . . . I venture somewhat further, and hesitate not to affirm that if the manner of it be not perfect, it is at least excellent. (Publius [AlexanderHamilton], Federalist 68): • Many subsequent evaluations (and the many proposed constitutional amendments) suggest a less favorable assessment of “the mode of appointment of the Chief Magistrate,” which has been variously viewed as: • part of a generally elitist and anti-democratic constitution; or • a last-minute jerry-built compromise; or • a well designed compromise among diverse considerations, or possibly • the embodiment of well-thought selection criteria.

4. Evaluations of the EC (cont.) • My own take on the Electoral College: • The original EC was a compromise among diverse considerations that was cleverly designed but had a fatal flaw that had be (and was) corrected by constitutional amendment. • The EC was rapidly transformed into an institution quite different from its designers had intended. • So, even if you like the existing EC, you can’t really give credit to “the wisdom of the framers [of the Constitution].” • Likewise, even if you dislike the existing EC, you can’t really blame the framers. • The transformed EC has proved to be a serviceable institution but is problematic in a number of ways.

5. Origins of the Electoral College • The original “Electoral College” [the term is not used in the Constitution] was a compromise between two modes of election of the President: • legislative election, which (it was feared) would make the President subservient to Congress, and • national popular election, which presented formidable practical difficulties at the time and reopened the conflict between large vs. small states. • The perceived advantages of the Electoral College: • unlike Congress, the EC would perform a single task – i.e., cast votes for President -- and would then disband; and • unlike popular election, the relative power of large vs. small states could be compromised in the fine details of the EC (and public opinion could be refined).

6. The Original Electoral College Rules • Each state selects a number of “electors” equal in number to its total (House + Senate) representation in Congress (H + 2). • The legislature of each state determines the mode of selection of the electors from its state, the most likely alternatives being • election by the legislature itself, • popular election from districts, and • popular election on a state-wide “general ticket” [the almost universal practice for the last 175 years]. • Electors were originally required to • cast two votes for two different candidates, • at least one of whom had to be a resident of another state. • To be elected by the Electoral College, a candidate was required to receive • votes from a majority of electors and • more votes than any other candidate. • Given the double vote system, these requirements are logically distinct.

7. The Original Electoral College (cont.) • If no candidate met both requirements, the election would be “thrown into the House [of Representatives].” • The House would choose • between the two (or more) tied candidates, in the event both (or all) received votes from a majority of electors, or • among the top five candidates, in the event no candidate received votes from a majority of electors. • Voting in the House is by state delegation, with each delegation casting one vote. • Balloting continues until some candidate is supported by a majority of state delegations. • In any event, the runner-up Presidential candidate would became Vice President.

8. Expectations Concerning the Original EC • This original Electoral College system was designed to operate in a non-partisan environment. • It therefore was expected that • typically there would be many potential Presidential candidates, and • electors would choose among these candidates on the basis of their character and connections, not party affiliation or policy promises. • Therefore, it was also expected that the “House contingent procedure” would be needed “19 times out of 20,” 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 elections (in the House). • It was generally hoped and expected that electors would typically be • popularly elected • from single-member districts (like most state legislators, delegates to the state ratifying conventions, members of the House of Commons, and as was expected also for members of the new U.S. House); and • that they would be well-informed local notables who would act as representative trustees of their states and districts.

9. Duverger’s Law and Crackup of the Original Electoral College • These expectations did not anticipate the development of a national two-party system. • Duverger’s Law: Given politically ambitious candidates, single-winner elections produce (in equilibrium) two-candidate contests [by virtue of the “wasted vote” argument, etc.] and sustain a two-party system. • Given the development of a two-party [Federalist vs. Republican] system, the combination of the double-vote and runner-up-is-VP provisions of the original Electoral College turned out to be a fatal flaw. • In 1796 the Presidential candidate (Jefferson) of the losing (Republican) party became Vice President. • In 1800 an electoral vote tie between the two (Presidential and Vice Presidential) candidates of the winning (Republican) party was broken by a House of Representatives controlled by the losing (Federalist) party.

10. 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. • This remains the constitutional language governing Presidential elections.

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

12. Elements of the Transformation • The way the rival parties first contested a Presidential election was to secure the selection of electors expected to cast electoral votes for their Presidential and Vice Presidential candidate. • Beginning even with the first contested Presidential election in 1796, elector candidates were therefore almost invariably “party men,” pledged (and faithful) to the (Presidential and Vice Presidential) nominees of their party. • Put otherwise, electors became party delegates rather that trustees of their states or districts [cf. regular delegates vs. superdelegates] • Pledged electors were almost universal as early as 1796. • Notably, Samuel Miles (Fed., PA) violated his pledge and voted for Jefferson rather than Adams. • An angry Federalist supporter complained: “What, do I choose Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I choose him to act, not to think.” • Once pledged and faithful electors have been selected, the prospective electoral vote for Presidential candidates is also known.

13. 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. • Madison 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 [so the dominant party wins all of a state’s electoral votes], it is folly or worse for the other six not to follow.” • By 1832, Presidential electors were almost universally selected by popular (vs. legislative) vote (and by much expanded electorates). • By 1836, the mode of popular election in every state is (following Madison’s strategic advice above) 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.”

14. Elements of the Transformation (cont.) • Moreover, the two-party system bypasses the House contingent procedure at least “19 times out of 20.” • On this point, the election of 1824 (the second and last time an election was thrown into the House) was the “exception that proved the rule”. • 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 (for the second and last time). • However, 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 than 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 an electoral vote tie (269-269) is possible, and • an election might be thrown into the House even in the absence of a third-party candidate winning election votes.

15. The EC as a Vote-Counting Mechanism • In 1845 Congress established a uniform nationwide Presidential election day (i.e., day for selecting Presidential electors) • On November 4, 2008, voters in each state will go to the polls and vote for either the Democratic or Republican (or possibly other) slate of elector candidates, who are pledged to their party’s (Pres. + VP) nominees. • With popular election of pledged electors, American voters may be forgiven for thinking they are actually voting directly for Presidential candidates (often there is little on the ballot to suggest otherwise). • In each state, the elector slate receiving the most votes wins. • 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 are counted before a joint session on January 5, 2009. • The President of the Senate [Vice President Cheney] will announces the vote and proclaimed that ??? is the President-elect. • So in (almost invariable) practice, everything will be determined on election night in November, and the remaining steps are merely ceremonial; that is, TV prognosticators can • report the popular vote winner in each state, • add up the corresponding electoral votes, and • declare a President-elect.

16. (Alleged) Problems with the EC as a Vote-Counting Mechanism • The Voting Power Problem. Does the EC [or EU] give voters in different states [member nations] unequal voting power? • If so, the EC [EU] violates the criterion of “One Person, One Vote” (OPOV). • Which voters are favored and which disfavored and by how much? • The Election Reversal Problem. The candidate who wins the most popular votes nationwide may fail to be elected. • The election 2000 provides an example (provided we take the official popular vote in FL at face value). • The Partisan Bias Problem. Does the EC as a vote counting system favor one party over the other (at the present time or in times past)? • This is closely connected with the Election Reversal Problem. • The Battleground States Problem. The Electoral College focuses the Presidential election contest on a few “battleground states,” which get very disproportionate attention from the candidates and parties. • This is loosely connected with the Voting Power Problem. • Other Problems -- mere vote-counting may fail. • What if electors violate their pledges? • The House contingent procedure. • Americans have “no constitutional right to vote for President.”

17. EC Variants: The Apportionment of Electoral Votes • Keep the winner-take all practice [in 2000, Bush 271, Gore 267; in 2004, Bush 286, Kerry, 252] but use a different formula to apportioning electoral votes among states (All require a constitutional amendment.) • Apportion electoral votes [in whole numbers] on basis of House seats only] [Bush 211, Gore 225; Bush 224, Kerry 212] • Apportion electoral votes [fractionally] precisely proportional to population [Bush 268.96092, Gore 269.03908; Bush 275.67188, Kerry 262.32812] Translated outcomes take account of Duverger’s “mechanical effects” only (vs. “psychological/strategic effects”)

18. EC Variants: The Apportionment of Electoral Votes (cont.) • Apportion electoral votes [fractionally] to be precisely proportional to population but then add back the “constant two” [Bush 277.968, Gore 260.032; Bush 285.407, Kerry 252.593] • Apportion electoral votes equally among the states [in the manner of the House contingent procedure] [Bush 30, Gore 21; Bush 31, Kerry 20] • National Bonus Plan: 538 electoral votes are apportioned and cast as at present but an additional bloc of electoral votes [e.g., 100] are awarded on a winner-take-all basis to the national popular vote winner. [Bush 271, Gore 367; Bush 386, Kerry 252]

19. EC Variants: The Casting of Electoral Votes • Apportion electoral votes as at present but use something other than winner-take-all for casting state electoral votes. (Some can be adopted on a state-by-state basis.) All are likely to produce splits in state electoral votes. • Pure District Plan: select electors from single-member districts (as originally expected), so each electoral vote is cast for the district winner. • Modified District Plan: select the two “Senate electors” statewide and the “House electors” by district [probably CDs -- present NE and ME practice]. [Bush 289, Gore 249; I don’t have good data for 2004]

20. EC Variants: The Casting of Electoral Votes (cont.) • Pure Proportional Plan: electoral votes are cast [fractionally] in precise proportion to state popular vote. [Bush 259.2868, Gore 258.3364, Nader 14.8100, Buchanan 2.4563, Other 3.1105; Bush 277.857, Kerry 260.143 (excluding minor candidates)] (implies doing away with electors as individuals) • Whole Number Proportional Plan [e.g., Colorado Prop. 36]: electoral votes are cast in whole numbers on the basis of some (PR-style) apportionment formula applied to each state’s popular vote. [Bush 263, Gore 269, Nader 6, or Bush 269, Gore 269; Bush 280, Kerry 258]

21. The Popular Vote Alternative to the EC • Elect the President and Vice President on the basis the popular vote of the nation as a whole. • Requires national election administration, voter qualifications and registration, ballot access rules, etc.? • Runoff requirement? With what threshold? • Supplementary vote [like London mayor], IRV etc.? • To bypass the constitutional amendment process, adopt the National Popular Vote Plan, • to be effected by interstate compact (which requires the consent of Congress but not a constitutional amendment). • The states in the compact pledge to cast their electoral votes for the national popular vote winner. • Problems: • There is no official “national popular vote winner.” • The Plan largely ignores general popular vote problems noted above. • Would the compact hold in an election like 2000 (i.e., in which there would be an election reversal if the EC operated in the normal manner)?

22. Voting Power • A measure of individual voting power allows us to resolve the following questions: • How much (if any) does individual voting power under the existing EC vary from state to state? • In so far as it does vary, are voters in large or small states favored? • How would voting power change under various proposed (and other) alternatives to the existing Electoral College?

23. Voting Power (cont.) • With respect to the second question, directly contra-dictory claims are commonly made. • “The Electoral College . . . gives greater voting power to voters in states with less than average population and less to those with greater than average population.” (Gary Parish, The Electoral College: Source of Inequality and Social Injustice in America) • “According to a frequently published argument . . . , there is an intrinsic large-state advantage in Presidential elections.” (Howard Margolis, “The Banzhaf Fallacy”) • Partly because the Electoral College is viewed by some as favoring small states and by others as favoring large states, it is commonly asserted that a constitutional amending modifying or abolishing the Electoral College can never by ratified by the required 38 states. • Hence the National Popular Vote Plan (to use an interstate compact to bypass the constitutional amendment process).

24. Voting Power (cont.) • First, we need to define and distinguish between • voting weight and • voting power. • With respect to the Electoral College, we need to bear in mind the distinctions already made between • how electoral votes are apportioned among the states (which determines voting weight), and • how electoral votes are cast within states (which, in conjunction with voting weight, determines voting power).

25. The Apportionment of Electoral Votes • The apportionment of electoral votes (voting weights) produces a systematic and substantial small-state advantage in the apportionment of electoral votes relative to the apportionment population. • This is the basis of the argument that the Electoral College advantages voters in smaller (rural, more conservative, etc.) states. • The magnitude of this small-state apportionment advantage is not fixed in the Constitution. • It varies (inversely) with the size of the House (relative to the Senate), which is determined by Congress. • If the House had been sufficiently larger than 435, Gore would have won the 2000 election (even while losing Florida).

26. The Small-State Apportionment Advantage

27. Another View of the Small-State Advantage

28. The Casting of Electoral Votes • Remember that state choice of the general ticket for electing electors produces the winner-take-all practice that produces the weighted voting game noted at the outset. • Many have believed that this practice produces a large-state advantage in voting power that counteracts (in some degree) the small-state advantage in apportion-ment. • This is the basis for the argument that the Electoral College gives disproportionate voting power to voters in larger (urban, ethnically diverse, etc.) states.

29. A Priori Voting Power • An appropriate voting power measure can evaluate the voting power of each state in the Electoral College weighted voting game with 51 voters. • In addition, there is a large-number unweighted majority voting game within each state that determines how that state will vote in the Electoral College. • So the overall Presidential election is a two-tier voting game. • The measurement and interpretation of a priori voting power has been a major focus of the LSE program on Voting Power and Procedures. • Though VPP research has focused primarily on voting power with respect to the EU Council of Ministers (and other EU institutions). • Measures of a priori voting power applied to the Electoral College (or the EU) take account only of the its formal rules plus the population of each state and the mathematical formula used to apportion House seats among the states, • but not demographics, historic voting patterns, ideology, polling results, election forecasts, etc.

30. Felsenthal and Machover, The Measurement of Voting Power • In their book, Dan Felsenthal and Moshé Machover (both members of the VPP Board of Directors) present the most conclusive study of voting power measures. • They conclude that the so-called Absolute Banzhaf Measure is the appropriate measure for evaluating power in typical voting situations, including the Electoral College. • They further show that this measure has the following a probabilistic interpretation: • A voter’s absolute Banzhaf voting power is the voter’s a prioriprobability of casting a decisive vote, i.e., one that determines the outcome of an election (e.g., by breaking what otherwise would be a tie). • In this context, “a priori probability” means, in effect, probability given that all voters vote randomly (i.e., vote for either candidate as if they independently flip fair coins), so that every point in the “Bernoulli space” (every combination of voters) is equally likely to occur. • Such hypothetical two-candidate elections may be called Bernoulli elections.

31. Calculating Power Index Values • There are mathematical formulas and algorithms can calculate or estimate voting power values. • Various website make these algorithms readily available. • One of the best of these is the website created by Dennis Leech (University of Warwick and another VPP Board member): Computer Algorithms for Voting Power Analysis, http://www.warwick.ac.uk/~ecaae/ which was used in making most of the calculations that follow.

32. Share of Voting Power by Share of Electoral Votes

33. Share of Voting Power by Share of Population

34. State Voting Power in the Existing EC (cont.) • It is evident from these charts that • only California’s share of voting power substantially deviates from (and exceeds) its share of electoral votes; • the very modest large-state advantage in voting power (relative to voting weight) is not sufficient to balance out the small-state advantage in apportionment; indeed, • even California’s distinctive advantage in terms of voting power (relative to voting weight) is not sufficient to give it voting power proportional to its population. • California’s absolute Banzhaf power is .475 . • Remember what this means: if all other states cast their electoral votes by independently flipping coins, almost half of the time they would split their 483 votes sufficiently equally that California’s bloc of 55 votes would be “decisive” and determine the winner.

35. The 125 Million Two-Tier Voting Game • But as previously noted, a U.S. Presidential election really is a two-tier voting system, in which the casting of electoral votes is determined by a simple majority voting games within each state. • In such a two-tier system, individuala priori voting power is the probability of “double decisiveness,” i.e., • that a voter casts a decisive vote within his or her state (i.e., that there is tie among the other voters in the state), and • that his or her state casts a decisive bloc of electoral votes (i.e., that neither candidate wins 270 electoral votes from the other states). • Put otherwise, individual voting power in the two-tier system is equal to • individual voting power in the unweighted (but large number) majority voting game within the state times • the state’s voting power in the 51-state weighted voting game.

36. The Two-Tier Voting Game (cont.) • Probability theory and the properties of Banzhaf measure tell us that the individualvoting power in the first tier (within state) voting game is inversely proportional (to excellent approximation once n~> 25) to the square root of the number of voters in the state. • We previously saw that a state’s voting power in the second tier voting game is approximately proportional to its electoral vote (and therefore, apart from the small- state apportionment advantage, roughly proportional to its population). • Putting these two considerations together, it follows that individual a priori voting power in the two-tier system • increases with the population of the voter’s state, and • is approximately proportional to the square root of the number of voters in the voter’s state.

37. Individual Voting Power Under the Existing EC • The following chart shows how individual voting power under the existing Electoral College varies by state population. • It also shows: • mean individual voting power nationwide, and • individual voting power under direct popular vote (calculated in the same manner as individual voting power within a state). • This is necessarily uniform over the nation. • Note that it is substantially greater than mean individual voting power under the Electoral College. • Indeed, it is greater than individual voting power in every state except California. • By the criterion of a priori voting power, only voters in California would be hurt if the existing Electoral College were replaced by a direct popular vote. Methodological note: in most of the following charts, individual voting power is scaled so that the voters in the least favored state have a value of 1.000, so • numerical values are not comparable from chart to chart, and • the scaled value of individual voting power under direct popular vote changes from chart to chart.

38. Individual Voting Power Under the Existing EC

39. “House Electoral Votes” Only

40. Electoral Votes Precisely Proportional to Population

41. EVs Precisely Proportional to Population, plus Two

42. Electoral Votes Apportioned Equally Among States

43. Individual Voting Power under Alternative Rules for Casting Electoral Votes • Calculations for the Pure District Plan, Pure Proportional Plan, and the Whole-Number Proportional Plan are straightforward. • Under the Modified District Plan (or National Bonus Plan), each voter casts a single vote that counts two ways: • within the district (or state) and • at-large (i.e., within the state or nation). • Calculating individual voting power in such systems is far from straightforward. • I am in the process of working out approximations based on very large samples of Bernoulli elections.

44. Pure District System

45. Modified District System (Approximate)

46. A Unilateral Move From Winner-Take-All to the (Pure) District System • In the mid-1990s, the Florida state legislature seriously considered switching to the Modified District Plan. • The effect of such a switch on the individual voting power is shown in the following chart. • However, I assume a switch to the Pure District Plan, because it is much easier to calculate. • Madison’s earlier strategic advice is powerfully confirmed, • though the voting-power consideration is logically distinct from the party-advantage consideration Madison had in mind, • But the latter is also illustrated: considering “mechanical” effects only, if Florida had made the switch, Gore would have been elected President (regardless of the statewide vote in Florida). • Even if a district system is universally agreed to be socially superior (as Madison considered it), states will not voluntary choose to move that direction. • States are faced with a “Prisoners’ Dilemma.”

48. (Pure) Pure Proportional System

49. The Whole-Number Proportional Plan • This plan divides a state’s electoral votes between (or among) the candidates in a way that is as close to proportional to the candidates’ state popular vote shares as possible, given that the apportionment must be in whole numbers. • Unlike the (Pure) Proportional Plan, whole-number proportionality allows for the retention of electors. • Accordingly, it is the only proportional plan that can be implemented at the state level (as Colorado Prop. 36 proposed). • Colorado Proposition 36 used a distinctly ad hoc apportionment formula. • But, in the event there are just two candidates (as in Bernoulli elections), all apportionment formulas work in the same straightforward way: • multiply each candidate’s share of the popular vote by the state’s number of electoral votes and then round off in the normal manner. • The following chart shows that this plan produces a truly bizarre distribution of voting power.

50. Whole-Number Proportional Plan Similar calculations and chart were produced, independently and earlier, by Claus Beisbart and Luc Bovens, “A Power Analysis of the Amend-ment 36 in Colorado,” University of Konstanz, May 2005, and Public Choice, March 2008.