The American System for Choosing Presidents

Informed Choice, or Poorly Designed Lottery? The American System forChoosing Presidents March 13, 2008 Michael Munger Duke University

Outline • 1. Original conception • 2. Problem of democracy: incoherence • 3. Electoral college • 4. Conventions • 5. Progressive reforms and the development of the primary system • 6. Superdelegates and fear of democracy

1. Original Conception • The Founders, particularly James Madison, believed that 9 of 10 Presidential elections would be settled in the House of Representatives. • The Electoral College was really just steam control, a way of involving the states, and even the population. • But if there were 5, or 6, 0r 15 candidates, no way to get a majority of electors • Problems: • 1. Duverger’s Law • 2. Political Parties, almost immediately

1. Original Conception • The function of the College of Electors in choosing the president can be likened to that in the Roman Catholic Church of the College of Cardinals selecting the Pope. The original idea was for the most knowledgeable and informed individuals from each State to select the president based solely on merit and without regard to State of origin or political party. • The structure of the Electoral College can be traced to the Centurial Assembly system of the Roman Republic. Under that system, the adult male citizens of Rome were divided, according to their wealth, into groups of 100 (called Centuries). Each group of 100 was entitled to cast only one vote either in favor or against proposals submitted to them by the Roman Senate. In the Electoral College system, the States serve as the Centurial groups (though they are not, of course, based on wealth), and the number of votes per State is determined by the size of each State's Congressional delegation. Still, the two systems are similar in design and share many of the same advantages and disadvantages.

2. Problem of Democracy: Coherence The Founders’ View, The Classical View…. "Democracy is precisely the constitution out of which tyranny comes; from extreme liberty, it seems, comes a slavery most complete and most cruel...When a democratic city gets worthless butlers presiding over its wine, and has drunk too deep of liberty's heady draught, then, I think, if the rulers are not very obliging and won't provide plenty of liberty, it calls them blackguards and oligarchs and chastises them...and any who obey the rulers they trample in the dust as willing slaves and not worth a jot." Plato, THE REPUBLIC, Book IV, 560A-564A

What is “The” Right Thing? • There may not be any one right thing to do. It depends. • It is the nature of collective choices that they are unitary: One defense budget, one standard for pollution, and so on. • Asking “What Will We Do?” begs the question. The real question is… Why Do You Think There is a ‘We’? Any voting system faces a problem: the way of choosing... may determine what is chosen!

Coherence and Legitimacy Can a group of people who disagree come to a consensus? Why would believe that “consensus” is any more than an imperfect choice? Are such choices, of necessity, arbitrary or imposed? Do the choices of majorities tell us anything about “the right thing to do” in the face of disagreement? Is there such a thing as “the majority,” which we just have to discover through voting or some political process? I want…you want…what do we want?

Problem of the U.S. in Iraq

Democratic Choices: War in Iraq You’ve got to help me out here…play along! Preferences and beliefs, on the little card. REALLY! Accept the premise, and act like those are your preferences. Three choices: No war: N Aggressive war: W Police/political means: P

Choices: War in Iraq One possibility: isolationist variant of Powell doctrine N > W > P We should not get involved. But, if we do, we should go in with overwhelming force. Worst thing is to expose our troops/workers in a limited police action, depend on the U.N.

Choices: War in Iraq Another possibility: Rummy World W > P > N Iraq/Saddam is an imminent threat, will develop WMD. If not war, then must vigorously pursue sanctions Worst thing is to do nothing, relax sanctions and let Iraq become nuclear power

Choices: War in Iraq Final possibility: Prudent Dove P > N > W Let sanctions and inspections do their work, because Iraq is a potential danger to its neighbors and the world We have no good claim to just war, so next best is to do nothing Worst thing is to use war against a nation that has made no overt attack on the U.S.

Choices: War in Iraq So…we have disagreement • Prudent dove wants to use P, police action • Rummy wants war • Isolationists would prefer to stay far away from foreign entanglements, so do nothing.

Choices: War in Iraq Let’s use “democracy,” the pure kind where the people make the choice directly. First, let’s decide whether to use force, or do nothing…. Vote P vs. W to decide which activity is better, and then vote that against N. That way, we are comparing the best “do something” against “do nothing.”

Choices: War in Iraq Consider what just happened. Simply by changing the order in which we consider the alternatives, I could generate as the “winner” any one of the three alternatives. Choosing the agenda, then, is tantamount to choosing the outcome. Is this just a conjurer’s trick, or does it tell us something about democracy?

Choices: War in Iraq If there are three (or more) alternatives, and there is disagreement, then democracy may be radically indeterminate. More simply, there is no correct answer to the question, “What do the people want?” In fact, some majority opposes every alternative.

Choices: War in Iraq Here is the problem: I/P Rummy Prud Dove N W P Best W P N Middle P N W Worst Majority preferences: W > P > N > W Endless, infinite cycling over alternatives. Not a tie, but a literal perpetual motion machine

But this is nonsense: meetings end That is what should terrify you: meetings end, and things get decided. The point is that we are rarely presented with three or more alternatives. We usually are presented with two. How are those two chosen? The “Munger Revolution”: coalitions form, charismatic people take power. Not the will of the people, but the force of will of some demogogue or tyrant If the rules matter to this extent, that means that procedures, not preferences, determine outcomes. And elites control procedures….

Democracy works fine…. So long as everyone agrees But if there is disagreement, and at least three alternatives, then a majority opposes every available choice. So, democracy fails us when we need it most! Since some choice has to be made, we are left with an outcome that is either • Imposed (tyranny) • Arbitrary (random or procedure-driven) In either case, “democratic choice” is chimerical Dictatorship with the trappings of democracy

The worst of all worlds Democracy without constitutional liberalism… 1. Rule of law, protections of property and liberty 2. Limits on scope of issues within the jurisdiction of collective choice… Democracy without these is the most terrifying kind of tyranny you can imagine. Americans, and the West, are confused about “good government.” The key is constitutional liberalism, not democracy.

In our example, Iso-Powell was the culprit… Utility Prudent Dove Rummy Iso-Powell N P W Intensity of War Effort

Summarize problem of coherence • If there are three or more voters • If there are three or more choices (candidates, bills, etcs) • If there is disagreement THEN Possibility of democratic breakdown, and revolution Voting institutions can “solve” this, by limiting choices to only two. But: WHICH TWO? Choosing the two is like being a dictator.

3. Electoral College

3. Electoral College • The “electoral college” is actually an entirely separate legislature, elected once every four years. • Never actually meet, but they do pass one important piece of legislation: Elect a President • Popular vote actually does NOT elect the President. • Popular vote elects district and state “electors.” • Electors are chosen by parties • For first 100 years, more in some states, names of candidates did not appear on the ballot. Names of the electors appeared on the ballot.

5 Arguments for the Electoral College • The Electoral College, in recognizing a role for states in the selection of the president, reminds us of their importance in our federal system. • The Electoral College encourages more person-to-person campaigning by candidates, as they spend time in both the big cities and smaller cities in battleground states. • In close, contested elections, recounts will usually be confined to a state or two, rather than an across-the-country recount that might be required if we had direct election of the president. • The Electoral College, with its typical winner-take-all allocation of votes, often turns a small percentage margin of victory into one that appears much larger, thus making the victory seem more conclusive and adding to the winner's perceived legitimacy. • It's fun on election nights to watch states light up in different colors on television network maps of the U. S.

5 Arguments against the Electoral College, or for Direct Popular Vote • When the winner of the Electoral College is not the one who received the most votes of the people, the new president faces legitimacy questions. • Most Americans believe that the person who receives the most votes should become president. Direct election is seen as more consistent with democratic principles than is the Electoral College system. • The Electoral College gives disproportionate weight to the votes of citizens of small states. For example, a vote by a resident of Wyoming counts about four times more--electorally--than a vote by a California resident. • If presidents were elected by direct popular vote, they would wage a campaign and advertise all across the nation, rather than (as they do in the Electoral College system) concentrating almost all of their time and effort in a handful of battleground states. The Electoral College system encourages candidates to pander to the interests of voters in a few closely contested states. • The Electoral College system, especially in a close election, is subject to the mischief that might be caused by disloyal--or even bribed--electors.

Electoral College: Three Main Features…. • indirectness • overrepresentation of small states • winner-takes-all selection of state Electors

Origins of the Electoral College • The system for choosing presidents and vice presidents in the United States is widely derided, but not widely understood. The Electoral College was a triumph of institutional design, at least in terms of the problems of the 1780s. • It is important to recognize that the US chief executive was to be chosen from 13 geographically distinct states of varying sizes. There were no communication networks, or even transportation systems, that could have allowed anything like modern political campaigns.

Origins of the Electoral College • Perhaps even more important, it was believed that campaigns themselves were unseemly, and political parties were downright reprehensible. Madison’s concern in Federalist No. 10 had been with the evils of “faction”, but one might have substituted “party” and done little damage to Madison’s central point. • The system the framers of the US Constitution came up with was a compromise, an attempt to steer between the Scylla of popular opinion and the Charybdis of organized interests in the state legislatures or in the federal Congress. • The idea of a separate “College of Electors”, chosen in the states, by the citizens, but with each state controlling the means and process of selection of their own Electors, was finally settled upon by a committee of the Constitutional Convention, and accepted by the entire Convention in the final draft.

Indirectness Citizens of states don’t really vote for one of the tickets that have been campaigning during the months leading up to Election Day. Instead, each vote goes toward electing an Elector, or a person selected by the state party apparatus to represent the party in the Electoral College in the event that the party wins the vote. Importantly, the vote is truly indirect; it is perfectly possible for electors, who are already in most cases faceless (because their identities are secret), also to be faithless, voting for a different candidate from that party, or even for a candidate from another party. This is a fundamentally republican (small “r”) feature of the Electoral College--citizens are selecting electors who will represent their interests, not choosing presidential candidates directly. Most ballots now obscure the fact that votes are for electors, not candidates, but this was not always the case. For a century (or longer in some states) after the 12th Amendment in 1804 modified the Electoral College to its current format, the actual names of electors were listed on ballots. This led to some strange results. In addition to the problem of faithless electors, some states formally split their Electoral College delegations, most recently in West Virginia in 1916, which elected seven Republican electors and one Democrat

Overrepresent Small States • Each citizen in a “small” state casts a vote that counts more than a citizen in a large state. The reason is that power in the Electoral College is apportioned according to an affine transformation of population. Roughly speaking, the equation for determining a state’s Electoral College votes is Electoral College Votes = 2 + (State Population/600,000) But…this is only an average! Some states with small populations get many more votes, proportionately.

Overrepresent Small States Consider the two states of Wyoming and California as an extreme example. Wyoming has a population of about 500,000, so gets 2 + (500,000/600,000) = 3 Electoral College votes. (rounding) California has a population of 35.5 m, and if equation (1) were perfectly accurate would have 60 votes. But because so many other states are smaller than the 600,000 quota determined by House membership, the relationship is only approximate: California's actual Electoral College allocation is 55 votes. What this means is that the ratio of California to Wyoming Electoral College votes is 55/3 = 18.33

Overrepresent Small States But the California-Wyoming population ratio is 35.5/0.5 = 71. The conclusion is inescapable: each vote cast in Wyoming “counts” nearly 4 times as much (71/18.33 = 3.88) as any one vote in California. True, California is still the great prize of the Electoral College, representing 10% of the total electoral vote for the presidency. California counts much less under the Electoral College than it would under a pure “one person, one vote” scheme.

Winner Take All: Big States DO matter! The key feature of the Electoral College, in terms of most current efforts at reform, is its winner- takes-all aspect. The reason that Florida was so important in 2000 was that all 25 of the state’s electoral votes hinged on the few hundred ballots whose “chads” were in question. If Florida’s electoral vote were proportional, instead of winner takes all, the split would have been 12 for Bush, 12 for Gore, and one electoral vote in contest. But it would not have mattered much, because Gore would have had 278 electoral votes overall, and Bush would have had 258 votes. The awarding of the last remaining Florida Electoral College vote would have been of no consequence, as 12 of the 25 Florida votes would have put Gore over the required 270 electoral vote majority.

Winner Take All The impact, and value, of the winner-takes-all provision is hard to analyze. On one hand, in close races (such as Florida in 2000, or Ohio, Pennsylvania, or New Mexico in 2004), the value of each vote is magnified, possibly spurring higher turnout. On the other hand, in electorally “secure” states such as Texas, North Carolina, California, Massachusetts, or New York, there is little question what the outcome will be, and so turnout may be attenuated.

Winner Take All--Reforms There have been a variety of attempts to change the winner-takes-all provision recently. This may be because this is the only aspect of the Electoral College system that requires no constitutional changes at the federal level. Since states are fully in charge of how they choose electors, they can also decide if they want to diverge from the winner-takes-all norm. California has recently considered legislation that would implement a proportional system; Colorado recently rejected a proposed state constitutional amendment (Amendment #36), which would have made that state’s Electoral Vote allocation proportional; and several other states have decided to study the issue. Maine and Nebraska have moved to a proportional system, awarding the two electoral votes associated with their US Senate delegations “at large”, and then dividing the remaining Electoral College votes according to which presidential candidate wins the popular vote in each congressional district. This latter approach is, frankly, a terrible idea. Congressional districts are so gerrymandered in the United States that House races in well over 90% of these districts are not competitive.

Winner Take All--Reforms Example: In California, the vote totals are always in the 55%–44%, or 53%–45%, range. If California went to a proportional system, that would mean that, in a typical election, 30 Electoral College votes would go to the winning presidential candidate and 25 votes would go to the loser. But this is an election, so only net votes matter. What that means is that California transforms itself from the 800-pound gorilla of the Electoral College, with 55 votes, to a 5-net-vote (30–25) weakling. A different proposal would be to change the allocation of Electoral College votes for entire nation, but that would require a constitutional amendment. And the net effects are hard to estimate, either for voter participation or for the perceived legitimacy of elections. On the plus side, it would be practically impossible for the popular vote and the Electoral College vote to differ. On the downside, it would be possible to win the election with large majorities in just a few large states, since both candidates would pick up at least some votes from every states, rather than being shut out.

Overall The point is this: for all its flaws, and complexities, the Electoral College withstands scrutiny remarkably well. Its amended form, dating from the 19th century, answers a number of needs of the 21st century far better than any alternative system that has been proposed. The reason is that the Electoral College is explicitly designed to require a winning candidate to appeal to large geographic areas, rather than just to voters in the population centers. The criticisms of the institutions of the EC, based on an assumption that there is a mystical “will of the people” that can be divined through elections, are misguided. There is no better system for controlling political excesses, and forcing presidential candidates to represent the entire nation, than that created out of the original wisdom and compromises of the early 19th century

4. Conventions In the early 19th century, members of Congress met in party caucuses to select a nominee. Conflicts between interests of Eastern Congressional class and citizens in newer Western states led to the hotly contested 1824 election, where factions of Democratic-Republican Party rejected the caucus nominee, William H. Crawford of Georgia, & backed John Quincy Adams, Henry Clay, and Andrew Jackson instead. In 1831 the Anti-Masonic Party convened in Baltimore, Maryland to select a single presidential candidate agreeable to the whole party leadership in the 1832 presidential election. Conventions were often heated affairs, playing a vital role in deciding who would be the nominee. The process remained far from democratic or transparent, however. The party convention was a scene of intrigue among political bosses, who appointed and otherwise controlled nearly all of the delegates. Winning a nomination involved intensive negotiations and multiple votes; the 1924 Democratic National Convention required a record 103 ballots to nominate John W. Davis. The term dark horse candidate was coined at the 1920 Republican National Convention, at which little-known Ohio Senator Warren G. Harding emerged as the candidate.

4. Conventions A few, mostly Western states adopted primary elections in the late 19th century and during the Progressive Era, but widespread adoption came after election of 1968. The Vietnam War energized a large number of supporters of anti-war Senator Eugene McCarthy of Minnesota, but they had no say in the matter. Vice President Hubert Humphrey—associated with the unpopular administration of Lyndon B. Johnson—did not compete in a single primary, yet controlled enough delegates to secure the Democratic nomination. This proved one of several factors behind rioting which broke out at the convention in Chicago. Media images of the event—angry mobs facing down police, later called a “police riot”—damaged the image of the Democratic Party, which appointed a commission headed by George McGovern to select a new, less controversial method of choosing nominees. The commission settled on the primary election, adopted by the Democratic National Committee in 1968. The Republicans adopted the primary as their preferred method in 1972. Henceforth, candidates would be given convention delegates based on their performance in primaries, and these delegates were bound to vote for their candidate. (Repubs are winner-take-all, and few superdelegates)

4. Conventions • A brokered conventionrefers to a situation in United States politics in which there are not enough delegates obtained during the presidential primary and caucus process for a single candidate to obtain a majority in the first round of voting of the presidential nominating convention. • Once the first ballot has been held, and no candidate has a majority of delegate votes, the convention is then considered brokered, and the nomination is decided through political horse-trading and further ballots. Anyone could win, anyone could be nominated. • Problem in 2008: Florida and Michigan have 366 delegates, nearly 10 % of total, right now awarded to no one. Winner needs majority of total (2024.5 out of 4048), counting Florida and Michigan in the 4048. Excellent possibility of brokered convention, if FL and MI are not awarded. • (Right now: Obama 1,611 (207), Clinton 1,480 (237) )

4. Conventions • Before the era of presidential primaries, conventions were routinely brokered. Adlai Stevenson in 1952 for the Democratic Party and Thomas Dewey in 1948 for the Republican Party were the last two candidates selected through a brokered convention, although the Democratic Party's 1968 convention might have been brokered had it not been for the assassination of Robert F. Kennedy. The last brokered convention to yield a nominee that went on to win the general election was the Democratic convention in 1932 that nominated Franklin Roosevelt. • Since then, there have been many years when brokered conventions were projected but did not come to pass. In 1988, a brokered convention was predicted for the Democrats since several candidates won the Super Tuesday primaries that year.[5]

4. Conventions Brokered conventions today • Several factors encourage a clear and timely decision in the primary process. First, candidates tend to get momentum as they go through the process because of the bandwagon effect. Thus, one or two candidates will be portrayed by the media to voters as the front runner(s) as a result of their placement in the first primaries and caucuses, and as also-ran candidates drop out, their supporters will tend to vote for the leaders. • Secondly, political parties wish to avoid the negative publicity from a brokered convention as well as to maximize the amount of time the nominee has to campaign for the presidency itself (there are barely two months between the major parties' conventions and Election Day). Also, the candidate nominated from the brokered convention will be seen as weak and must climb additional hurdles in a relatively short time to gain election. • Especially on account of the desire to foster party unity in the months leading up to Election Day, it is considered possible if not probable that any "brokering" that may be required for a future presidential convention will actually take place in the weeks and months leading up to the convention, once it becomes clear that no candidate will likely secure a majority of delegates without an agreement with one or more rivals. Such an agreement would likely commit the front runner to make some form of concession(s) in return, such as selecting the former rival as his/her vice presidential nominee.

5. Progressive Reforms • The Progressive Movement was an effort to cure many of the ills of American society that had developed during the great spurt of industrial growth in the last quarter of the 19th century. The frontier had been tamed, great cities and businesses developed, and an overseas empire established, but not all citizens shared in the new wealth, prestige, and optimism.

5. Progressive Reforms • Many progressives hoped to make government in the U.S. more responsive to the direct voice of the American people by instituting the following institutional reforms: Initiative A procedure whereby ordinary citizens could propose laws for consideration by their state legislatures or by the voters directly. Direct primary A procedure whereby political party nominations for public office were made directly by a vote of rank-and-file members of the party rather than by party bosses. Direct election of U.S. Senators A procedure to allow the citizens in each state to directly elect their Senators. Previously, Senators were chosen by the state legislatures. Direct election of Senators was achieved with the addition of the Seventeenth Amendment to the U.S. Constitution (1913). Referendum A procedure whereby citizens could vote directly to rescind a law which was passed by the legislature. Recall A procedure by which a public official could be removed from office by a direct vote of the citizens. Secret ballot A procedure by which citizens could keep their votes secret. Previously, voting was a public act witnessed by others. The voting records of individual citizens were recorded and made public. Many progressives argued that public voting allowed for voter intimidation. An employer, for instance, might require his employees to vote for certain candidates on pain of losing their jobs. Women's suffrage Granting to women the right to vote. Women's suffrage was achieved with the addition of the Nineteenth Amendment to the U.S. Constitution (1920). The progressives achieved their greatest and most enduring successes in the effort to make governments more democratic.

5. Progressive Reforms • Progressivism was imbued with strong political overtones and rejected the church as the driving force for change. Specific goals included: • The desire to remove corruption and undue influence from government through the taming of bosses and political machines; • the effort to include more people more directly in the political process; • the conviction that government must play a role to solve social problems and establish fairness in economic matters.

5. Progressive Reforms • Our current primary system is a result of “Progressive Reforms” • Long, expensive, exhausting • Random properties, spatially Republicans Democrats Center for General Election

6. Superdelegates! Revolt against Progressivism • "Superdelegate" is an informal term for some of the delegates to the Democratic National Convention, the presidential nominating convention of the United States Democratic Party. • Unlike most convention delegates, superdelegates are not selected based on party primaries and caucuses in each U.S. state. Instead, superdelegates are seated automatically, based solely on their status as current or former elected officeholders and party officials. They are free to support any candidate for the nomination. • The Democratic Party rules do not use the term "superdelegate". The formal designation (in Rule 9.A) is "unpledged party leader and elected official delegates" ("PLEO"). In addition to these unpledged PLEO delegates, the state parties choose other unpledged delegates (Rule 9.B) and pledged PLEO delegates (Rule 9.C).

6. Superdelegates! • The Republican Party also seats some party officials as delegates without regard to primary or caucus results, but the term "superdelegate" is most commonly applied only in the Democratic Party. • At the 2008 Democratic National Convention the superdelegates will make up approximately one-fifth of the total number of delegates. The closeness of the race between the leading contenders, Hillary Rodham Clinton and Barack Obama, has increased the chance that the superdelegates will play a decisive role in selecting the nominee, a prospect that has caused unease among some Democratic Party leaders.

6. Superdelegates: History • After the 1968 Democratic National Convention, the Democratic Party made changes in its delegate selection process, based on the work of the McGovern-Fraser Commission. The purpose of the changes was to make the composition of the convention less subject to control by party leaders and more responsive to the votes cast during the campaign for the nomination. • But some Democrats believed that these changes had unduly diminished the role of party leaders and elected officials, weakening the Democratic tickets of George McGovern and Jimmy Carter. In 1982, a commission chaired by former North Carolina Governor Jim Hunt created superdelegates. Under the original Hunt plan, superdelegates were 30% of all delegates, but when it was finally implemented in 1984, they were 14%. The number has steadily increased, and today they are approximately 20%.

The American System for Choosing Presidents