Legal Beagle by Graeme Edgeler


You always wanted a compact

As the US election moves up a gear – with the selection of running mates (Obama – Good Choice!) and the Democratic and Republican nominating conventions at which the presumptive nominees will become the actual nominees are about to kick off – I thought it time to look at how the actual vote will go, and the prospects of it changing any time soon.

After the panoply of different systems that marked the nominating season – which seems so long ago – it’s nice to have a single system. Kind of.

And the system is remarkable simple. If either Barrack Obama, or John McCain gets over half the votes, he will win.

Of course, only 538 people get to vote.

It will sound complicated, but try to explain to someone exactly how we elect our head of government – under first past the post or MMP – it’s not as easy as you think. You start with, well, they’re appointed, not elected, and by the time you’ve gotten to they’re chosen by some unknown process by the parliamentary members of the largest party that – alone or in concert with other parties – has support from the majority of members of the House of Representatives who were themselves elected by the people, after being selected by some process by the wider membership of the parties to contest those elections, just about anyone would be hopelessly lost…

But back to those 538 electors. It’s those people who will be chosen in November, and it’s a majority of their number that a successful candidate needs. Of course, they’re not being elected because they’re people steeped in wisdom who’ll be able to apply great judgment to determine who should be president – they’re all promising to vote for someone in advance.

Different states get a different number of electoral college votes – from as little as three in each of the seven smallest states (and thanks to the twenty-third amendment to the US Constitution, the District of Columbia) to 55 for California. The number of votes is calculated by adding the number of representatives the state is entitled to in the House of Representatives (which is proportionate to the US population) and the number of senators it is entitled to (always two). Washington DC – not a state and thus not entitled to a representative or any senators – is the only non-state that gets electors (thus not all US Citizens – for example those in Puerto Rico, or American Samoa – get to vote in federal elections – and DC gets as many as it would if it were a state, but not more than the smallest state gets (i.e. three, but its population isn’t big enough that it would get more anyway).

How are these people selected? Well, technically, it’s up to each state to decide how it appoints its electors. Through the early history of the United States, this wasn’t done through a statewide popular vote – state legislatures would meet and decide which people should be appointed to the electoral college. But now, each state puts it to a vote, and in the vast majority – all but Maine and Nebraska – it’s winner take all on a simple plurality – the person with the most votes in a state, gets their whole slate of electors. When Barack Obama gets more votes than anyone else in California 55 people picked by the Democratic Party will all get to vote for him.

It doesn’t matter whether he gets a majority of Californian support, or if he gets two votes and everyone else just votes for themselves and gets one, it’s a first past the post system where the winner takes all (as winners tend to do under first past the post). In Maine (two congressional districts and thus four electoral votes) and Nebraska (with three districts and five votes), the plurality winner in each congressional district gets one elector, and the winner of the state overall gets an extra two. I would say that these states were thus more proportional, but it’s never made a difference – the leading candidate state-wide has always won the race in each congressional district too.

So a collection of individual first past the post races effectively decides the US Presidential election. As we can see – and as Al Gore can attest – the nation-wide popular vote is irrelevant. It doesn't matter that electors pledged to support Al Gore in 2000 were backed by more voters than the electors pledged to George Bush were – he had more electors. And the fact George Bush won an actual majority in 2004 wouldn't have helped him if Ohio had flipped (which would have given Kerry an electoral college majority).

You may have noted that I've been talking about an electoral college majority. While the state-by-state races only need a plurality – getting the most votes is enough – in the electoral college it's a majority that is needed. If no-one gets a majority (because, miraculously, some third party won a state or two and the votes split three ways, or there just happens to be a 269-269 tie) then the House of Representatives gets to elect the President (each state, no matter how many representatives it has, getting one vote), and the Senate chuses the Vice President (which, if you think about it, is how we choose our Prime Minister).

And you will also have noted that the system gives greater weight to the votes of smaller states (California has nearly 70 times the population of Wyoming, but gets a little over 18 times its number of electoral votes). It’s not as disproportionate as the Senate – each state gets two senators, irrespective of its population – but it’s this over-emphasis on small states that means that this system – designed for a new country in the late 18th Century – is unlikely to change.

The US system for conducting presidential elections is set in the Constitution, and it’s a pretty difficult beast to change – since its inception it has only been amended 27 times (and ten of those were in one go near the beginning). To change the Constitution, two-thirds of the Senate, and two-thirds of the House of Representatives first have to agree, and then three-quarters of the states have to come in behind too (different states have different mechanisms for approving amendments – some would hold a state referendum, in others (most?) the state legislature would make the call). So it seems pretty unlikely the required supermajority to abolish the electoral college is going to come about.

That's not the only way for change to occur, however. I pointed out that it's up to individual states to decide how they determine their electors. In 2004, the voters of Nevada voted down a referendum that would have meant the state would divvy up its electors based on the proportions of the vote each candidate got. A proportionate system – whether based on state-wide vote, or following the Maine-Nebraska district-by-district method – is fraught. It might result in a more proportionate selection of electors, but we have to remember that – unlike a legislature (or a Parliament), the presidency cannot be proportional – it's a job that gets done by one person. Following the 2005 election, we didn't get a situation where Helen Clark got 41% of the Prime Ministership and Don Brash 39%.

For a number of reasons, proportionate state-wide allocation of electoral college votes just isn’t a good idea. The individual states that opted to do it would be acting against their own interests (a state worth 25 electoral votes in a tight race would become a state worth one vote – does the Republican get 13, and the Democrat 12, or the other way ‘round?), and wouldn't be worth campaigning in (or making promises to...). And because third party candidates would far more easily be able to earn some electors, the chance that no candidate would get the required majority could see election after election kicked to the House and Senate. It is that prospect – that some future election is decided by the Congress, rather than the people through their electoral college that is the only likely catalyst for a constitutional change – with the only serious alternative being a nationwide winner-take-all (not necessarily first past the post) popular vote.

A congressionally-determined presidential election has happened, but it seems pretty unlikely to happen now. But here is the really fun bit. States set their own rules and processes for divvying up their electoral college votes, and something called the national popular vote interstate compact has been proposed. Under the compact – essentially an agreement between state governments – federal laws and the constitution would not change, and states would keep their electors as at present who would vote as at present, but each state party to the agreement would promise to give all its electors to the winner of the national popular vote, even if he or she lost that state. The agreement would come into force once states whose electoral college strength exceeded half the 538 electors (i.e. enough to secure an electoral college victory and the presidency). Four states – Maryland, New Jersey, Illinois and Hawaii – a little under 20% of the 270 electoral votes needed – have already passed the required legislation, and it is pending in others.

I'm not a great critic of the electoral college – sure it's an anachronism, but I think it is a legitimate way for a country (particularly a federation) to choose its head of Government – the national compact is just a really clever idea...

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