The United States
Presidential Election Process:
Undemocratic?
The Bill of Rights Institute
Chicago, IL
October 2, 2008
Artemus Ward
Department of Political Science
Northern Illinois University
aeward@niu.edu
http://polisci.niu.edu/polisci/faculty/ward
Introduction
• The Electoral College system had led to presidents who
do not win the popular vote.
• The state-by-state electoral process that America uses to
select its president has led to a situation where only
about a dozen states are relevant.
• Voter turnout is irrelevant, except in the small number of
states that matter.
• Issues and resources are skewed to “battleground”
states.
• The process for resolving an election where no
candidate reaches a majority of electoral votes is even
more undemocratic than the electoral college.
The People’s Choice
• Is the President of the United States “the
people’s choice?”
• In 1960, Richard Nixon received
34,108,147 votes to John F. Kennedy’s
34,049,976.
• In 2000, Al Gore received 50,999,897
votes to George W. Bush’s 50,456,002.
• Of Course Kennedy and Bush won in the
electoral college but consider this, Nixon’s
votes constituted only 49.3% of the total
votes cast and Gore’s only 48.3%.
• Nixon won the presidency in 1968 with
43.4% of the popular vote.
• Bill Clinton won in 1992 with only 43% of
the total votes.
• Woodrow Wilson won in 1912 with 41.9%.
• Abraham Lincoln won in 1860 with 39.8%
of the popular vote—the all-time winner in
the “least popular successful candidates”
sweepstakes.
The Electoral College
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Presidential candidates and their campaign
managers are not trying to win the popular vote.
Instead, they attempt to put together a coalition of
states that will provide a majority of the electoral
votes.
With 538 votes possible, it takes 270 to win.
Main (4) and Nebraska (5) award their votes based
on winning congressional districts and two for
winning the statewide vote.
48 states and DC (3) have a winner-take-all system:
whichever candidate gets the most votes in the state
gets all of its electoral votes.
This system creates the phenomenon of
“battleground” states, which are those viewed as
close to evenly split between the two parties, i.e.
each party has a chance to win that state.
Other “predictable” states—an increasing majority of
them, roughly 2/3—are simply written off because
their preferences are utterly predictable.
In terms of candidate visits and campaign
resources—particularly advertising—the vast majority
of the population is ignored. For example, in the 2004
presidential campaign 99% of all advertising
expenditures occurred in only 17 states with Florida
and Ohio accounting for half. Add only three more—
Iowa, Pennsylvania, and Wisconsin—and total rises
to nearly ¾ of all advertising expenditures.
2008 electoral votes with predictable Republican “red” states, Democratic “blue” states, and grey
“battleground” states. For an interactive map: http://www.270towin.com/
Implications of a State-by-State Campaign
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A truly national election would increase turnout inasmuch as there would be more incentive
for everyone to vote, in both (and other) parties. And, with increased turnout, we might get
different winners than those that now win elections.
Campaign issues would change. Because of the misfortune that most of America’s largest
cities are in non-battleground states, almost no presidential candidate in years has made a
truly serious speech about the plight of these cities. Democrats can take the states
containing New York, Chicago, Philadelphia, Boston, and Los Angeles for granted, while
Republicans in turn have almost no incentive to devote themselves to consideration of
their plight. So issues such as prescription drugs for the elderly, support for Israel, and
opposition to Cuba are magnified due to a preoccupation with the battleground state of
Florida.
Low-population states are advantaged while high-population states are disadvantaged.
Why? Because each state gets two electoral votes regardless of population. Wyoming,
with only 0.2% of the national population, has three times that weight in the Electoral
College. California, on the other hand, with 12.2% of the national population, controls only
10.2% of the Electoral College votes. Consider the 2000 election. Al Gore won New
Mexico (and 5 electoral votes) while losing Wyoming, Alaska, and North Dakota (nine
electoral votes). Yet New Mexico has a larger population than those three states
combined!
“First Past the Post”
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Not only does the Electoral College system produce “winners” who fail to gain a
majority of the popular vote, it also produces “winners” who do not even gain a
majority of state popular votes.
The so-called “first past the post” system means that a candidate only receive
more votes than any other candidate to be awarded all the electoral votes in that
state.
Therefore, in a three-way race, a candidate with 33.4% of the statewide vote
could gain all the electoral votes even though her competitors each won 33.3%
of the vote. In an evenly divided four-way race, one would only need about
25.3% of the popular vote, and so on…
Many countries have solved this dilemma by going to a runoff system that would
assure that the winner indeed had received demonstrable majority support.
Who Are the Electors?
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Though there may be party and state rules
that “bind” electors to cast their ballots for
the candidate with the most votes in that
state, the Constitution appears to provide no
bar to electors who wish to vote their
conscience, rather than the party line.
Indeed, a number of recent electors have
case their votes for candidates other than
the one they were “pledged” to support.
For example, in 1976 one of the Washington
state Republican electors pledged to Gerald
Ford actually cast his vote for Ronald
Reagan. Had only 5,559 voters in Ohio and
3,687 voters in Hawaii voted for Ford instead
of Carter, with the one electoral vote “switch”
from Ford to Reagan, For would have
finished with 269 electoral votes to Carter’s
268 and Reagan’s 1. The House would have
decided the election.
In 1988, one of the electors pledged to
Democrat Michael Dukakis cast his vote for
Dukakis’ running mate Lloyd Bentsen.
Resolving Deadlocks in the House:
One State-One Vote
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If no candidate receives 270 electoral votes, the
House will decided among the top three candidates
with each state casting a single vote.
How should state delegations decide to cast their
single vote?
What if, in a very close state, representatives from
districts that voted for X even though the state at
large voted for Y decided to honor the preferences
of their constituents—who, after all, will be casting
judgment on them in the next election—instead of
remaining loyal to their political party?
The opportunities for mischief are great. One can
easily imagine the kinds of promises that would be
made to potential switchers, given the stakes of the
decision.
Consider the election of 1824. John Quincy Adams,
who had received both fewer popular votes and
fewer electoral votes than did his principle
adversary, Andrew Jackson, nonetheless prevailed.
The reason is that Henry Clay, who had come in
fourth and therefore was not among the top three
candidates who were available to the House for
consideration, threw his support to Adams and, as
a consequence, became secretary of state.
Photograph of John Quincy Adams. 1848.
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Why No
Change?
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National public opinion has long supported the abolition of the
entire Electoral College, yet nothing changes.
Why? Two reasons: 1) The zeal of small states to protect their
power within the system and 2) opposition from minorities who
believe their power will be diluted.
In 1969, the House voted 338-70 for a constitutional amendment
establishing national direct election by popular vote.
But in the Senate, southern and small state conservatives aligned
to filibuster the proposal because they believed that reform would
destroy the special influence the electoral college gives their
constituencies.
Ten years later, the Senate fell fifteen votes short of the necessary
2/3 when Democrats from New York, New Jersey, and Maryland
led the opposition after black and Jewish organizations claimed
that their supposed pivotal power in big swing states would be
threatened.
Even if congress were to pass such an amendment, consider the
difficulty of obtaining ratification by ¾ of the states. It only takes 13
states to keep an amendment from being enacted. There are 14
states that reap dramatic benefit from the senatorial bonus:
Alaska, Delaware, Hawaii, Maine, Montana, Nebraska, New
Hampshire, New Mexico, North Dakota, Rhode Island, South
Dakota, Vermont, West Virginia, and Wyoming. And this list does
not include the additional 14 states whose percentage of the
electoral vote is higher than their percentage of the national
population. What incentive do these states have to ratify a
constitutional amendment?
Perhaps the biggest lesson from Bush v. Gore (2000) is that the
current presidential election system will almost certainly remain in
tact. The American people’s apathy toward and acceptance of that
result demonstrates how difficult it would be to obtain a public
groundswell for change.
The Impermeable Article V?
• “The Congress, whenever two
thirds of both Houses shall deem it
necessary, shall propose
Amendments to this Constitution,
or, on the Application of the
Legislatures of two thirds of the
several States, shall call a
Convention for proposing
Amendments, which, in either Case,
shall be valid to all Intents and
Purposes, as Part of this
Constitution, when ratified by the
Legislatures of three fourths of the
several States, or by Conventions in
three fourths thereof, as the one or
the other Mode of Ratification may
be proposed by the Congress; …
[although] no State, without its
Consent, shall be deprived of its
equal Suffrage in the Senate.”
Alternatives to a Constitutional Amendment
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Article II, section 1 empowers each state to “appoint” its presidential electors in “such Manner as
the Legislature thereof may direct.” Article I, section 10 authorizes Congress to consent to “any
agreement or compact” by one state with another.
Large states could compact with one another to appoint electors who will be directed to cast
their votes for the person who wins the greatest number of votes in the overall national election.
The compact would not come into effect until enough states (which could be as few as the 11
largest states) to constitute a majority of the electoral votes had agreed to the compact. Upon
Congress agreeing to the compact, the United States would in effect move to a popularly elected
presidency.
Congress could call for a new constitutional convention after 2/3 of the states petition Congress
for such a move. The convention’s new constitution would only take effect if ratified in a national
referendum.
In the end, it is the American people that will determine whether such proposals are possible.
The advent of new technologies, particularly the internet, have made it possible for relatively
easy collective action. As a result, electronic petitions and websites have been launched to
change the presidential election process. Will these work?
Further Reading
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http://www.270towin.com/
Edwards, George. 2005. Why the Electoral College is Bad for America. New Haven,
CT: Yale University Press.
Eskridge, William N., Jr. and Sanford Levinson. 1998. Constitutional Stupidities,
Constitutional Tragedies. New York, NY: New York University Press.
Levinson, Sanford. 2006. Our Undemocratic Constitution: Where the Constitution
Goes Wrong (and How We The People Can Correct It). New York, NY: Oxford
University Press.
Levinson, Sanford, ed. 1995. Responding to Imperfection: The Theory and Practice
of Constitutional Amendment. Princeton, NJ: Princeton University Press.