There’s nothing good about the electoral college

The electoral college is being discussed because Hillary Clinton received at least 2.5 million (still counting) more votes from the American people than Donald Trump, but Trump will be president because he won a majority of the electoral college votes. In 2000, Al Gore received over 500,000 more votes from the American people than George Bush, but Bush became president because he won a majority of the electoral college votes. Thus, two of the last three presidents have been initially elected by winning the electoral college even though their opponents received many more votes from the American people. Under the electoral college, it is perfectly possible for a candidate to win a single state by just a few thousand votes and become president even though his or her opponent won millions more votes nationwide. This is not a sensible system for electing a dogcatcher much less a president who must be the president of all the people of the United States. It never has been and it should be abolished.

The amount of misinformation and pure mythology surrounding the electoral college is staggering. This is probably because with very few exceptions the winner of the popular vote has always won the electoral college vote too, so we haven't paid any attention to what the electoral college actually does. For nearly 120 years, from 1884 until 2000, the winner of the popular vote never lost the electoral college. But suddenly it has happened twice in sixteen years, and by an increasingly large margin of votes. Our national experience with the popular vote winner losing the electoral college has now become like Iowa's experience with hundred year floods - it's happening more often, and it's getting worse.

First, let's get the partisan nonsense out of the way. Some Republicans are chortling that it is only Democrats who are complaining about the electoral college because it was their candidate who lost the electoral vote while winning the popular vote. But this charge cuts both ways with equal force. Republicans can equally validly be said to be defending the electoral college because it is the reason their candidate won. Partisanship is irrelevant to any serious discussion of whether the electoral college or national popular vote should determine the presidency. Neither the electoral college nor national popular vote favor either of the major parties. Both parties have won plenty of presidential elections in all of which the winner won both the popular and the electoral vote. It's very important to be clear headed about this. Neither party has a better chance than the other under either system. We don't even know how the popular vote would have come out in the 2016 election without the electoral college because the candidates would have campaigned differently.

Now to the mythology. The most obvious and pervasive myth is the assertion that the delegates to the Constitutional Convention had good reasons for creating the electoral college, and that those reasons still exist. In fact, they had no good reasons, and the poor reasons they did have don't exist any more. One reason for the electoral college was concern that a national popular vote election with national candidates simply wasn't feasible. There were at least two parts to this concern. First, a fair national popular vote election of the president would have required national voter eligibility standards. Voter eligibility was left by the Constitution to the states, and varied widely. In Pennsylvania, there were no property qualifications and all free adult males could vote, including free blacks. Throughout the south, of course, only white males could vote. Popular election of the president would have required the states to agree on uniform national voter eligibility standards. Second, the delegates were also concerned about how voters in Georgia could become adequately informed about candidates from Massachusetts and vice versa. This was at least a plausible concern in 1787, when information traveled at the speed of horse, but it is not a reason to retain the electoral college in 2016 when information travels at the speed of light. As it turned out, the founders were wrong about this even in their own time. By the early 1800s, political parties were printing hundreds of thousands of copies of biographies and speeches of their candidates, and distributing them throughout the states, at little cost and often for free. Truly national campaigns and candidates were already a fact of life by the time of Andrew Jackson.

A second reason - arguably the major reason - for the electoral college was slavery. The southern states were not going to agree to a new Constitution that put slavery at any risk from the national government. The presidential electoral system was part of a bribe to the slave states to ratify the Constitution. To determine how many representatives a state would get in the House of Representatives, the delegates decided to let the states count two-thirds of their slaves as people. Without this rule, the more populous northern states could have controlled both congress and the presidency. The 'two-thirds” rule gave the southern states, which had millions of slaves, more representatives in the House than they would have had based on their free populations. The electoral college incorporated the 'two-thirds” rule into the system for electing the president (and vice president) because each state got a number of electors equal to the number of its representatives in the house plus its two senators. Thus, because of its slaves, Virginia got six more representatives and six more electors than Pennsylvania, even though the two states had similar free populations. From the slave states' point of view, this worked swimmingly. For thirty-two of the first thirty-six years of the presidency, a slave owning Virginian was President. (Cf. 'America's Constitution: A Biography” by Professor Amar of Yale Law School.) This wasn't because all the smart men lived in Virginia. It was because the Constitutional Convention had knowingly given the southern states effective control of both the legislative and executive branches of the national government, for at least the early decades of the new republic, in order to persuade them to ratify the Constitution. This reason for the electoral college doesn't exist any more either.

The electoral college doesn't benefit small states.

Another myth about the electoral college was prominently featured in a recent Gazette story. This is the myth that the electoral college benefits small states by giving them a voice they wouldn't otherwise have. The theory behind this myth is that since small states have fewer residents per electoral vote - that is, they are represented in the electoral college disproportionately to their populations - they are more valuable to presidential candidates than they would be under national popular vote, and candidates will be more likely to campaign in them. The truth, ironically, is exactly the opposite. The correct mathematical analysis of the value to a presidential candidate of winning a state has nothing to do with how many state residents there are per electoral vote. It's much simpler than that: states with more electoral votes are more valuable than states with fewer electoral votes. A state with ten electoral votes is worth more than a state with seven, and a state with seven is worth more than a state with three. Period. Candidates are not more likely to campaign in small states because of the electoral college, and there is clear empirical proof of this.

Let's look at the campaign of 2016. For this analysis, a 'campaign event” is defined as a public event at which any one of the four major presidential and vice presidential candidates appeared in a state to solicit the state's voters. (Data is from FairVote; a table and map showing the data is at nationalpopularvote.com.) In this election, there were 399 campaign events meeting this definition between the conventions and Nov. 7. The small state benefit argument states that more campaign events are held in small states because of their disproportionate electoral college clout, than would occur under national popular vote. But this is not true. In Wyoming, the smallest state, the electoral college makes a Wyoming resident's vote (based on eligible voters) worth 2.38 Iowan's votes, and 3.04 Californian's votes. According to the small state benefit argument, Wyoming should get disproportionately more campaign events than Iowa or California. But Wyoming got none. Wyoming, six other states and the District of Columbia share the distinction of being equally small in population, with 3 electoral votes each. Collectively, they have the largest electoral college influence, in proportion to their populations, of all the states, so according to the small state benefit myth they should get a disproportionate number of events compared to larger states. The total number of campaign events held in all seven of these states and the District of Columbia was zero. Even as a group, with all their disproportionate weight in the electoral college, they couldn't attract a single campaign event.

Let's move up a notch to states with four electoral votes. Hawaii, Idaho, and Rhode Island each got zero campaign events. New Hampshire and Maine on the other hand, which also have four electoral votes, got twenty-one events and three events, respectively. Iowa, Mississippi, Arkansas, and Kansas all have six electoral votes, but Iowa got twenty-one events, Arkansas and Kansas got none, and Mississippi got one. Oregon, Oklahoma and Connecticut each have seven electoral votes, but Oregon and Oklahoma got no events, and Connecticut got one. Altogether, two-thirds of the 399 campaign events (273) took place in only six states, none of them small: Florida, North Carolina, Pennsylvania, Ohio, Virginia, and Michigan. Ninety-four percent of the campaign events (375 out of 399) took place in just twelve states, leaving only 24 events for the other 38 states. Twenty-four of the states and the District of Columbia got a total of zero campaign events - half the states were not visited even once for a campaign event by any of the four major party candidates for president and vice president. Most of the small states were in this group of course: 17 of the 26 smallest states got zero events. Twenty-three of the twenty-six smallest states got a total of eleven events between them. There could not be stronger proof that the small state benefit argument is false.

Instead of conferring any benefit at all on small states, what the electoral college actually does - and all that it does - is create a small group of Frankenstein monsters which we have come to know as 'battleground” or 'swing” states, and their opposite, 'safe” states. In a nutshell, the electoral college causes presidential candidates to campaign in swing states and ignore safe states. A state's size makes no difference to whether it is a swing state. California and Texas got one campaign event each and New York got none. What makes a swing state, of course, is that the state's voters appear to be so closely divided that expending a great deal of effort there might win the state with its bundle of electoral votes. These states suck all of the candidates' time, attention and money to themselves at the expense of all the other states, large or small. This makes perfect logical and mathematical sense - which is why it happens. If you held a contest for the most idiotic Rube Goldberg electoral system you could think up, the electoral college would be a 20 to 1 favorite.

What would happen, in contrast, under national popular vote? The same thing that happens in all fifty states in statewide popular vote elections of Senators, governors and other state officials. Senator Grassley is proud of visiting all 99 counties, as he should be - and as he should because it is in his self-interest as a statewide popular vote candidate. Every vote in every county no matter how small, and no matter how hostile or friendly to him, could help him win. Five hundred more votes in Adams County are worth just as much as five hundred more votes in Polk County and could put him over the top. Two hundred more votes in each of the twenty smallest counties could do the trick. Under statewide popular vote there are no swing counties, no battleground counties, no safe counties. There is a clear incentive to campaign in every county, no matter how small. Even if you knew you would lose a small county's total vote, getting five hundred more votes there by showing up could give you the statewide win.

Under national popular vote, presidential candidates would campaign as Senator Grassley does. Abolishing the electoral college would abolish battleground and safe states, or, if you prefer, would make every state a battleground state. It would create an incentive for candidates to campaign throughout the country, in all the states, including small ones, because any votes from anywhere would count. Not under the electoral college. Under the electoral college, there is no reason to visit a small state just to get more popular votes if they won't be enough to win the state. Small states, like small counties, would be better served by national popular vote because a candidate would have a reason to visit them - to extract any more possible votes since those votes would count whether the candidate won or lost the state.

This year, Iowa was a swing state because it voted for Barack Obama in 2008 and 2012, but elected Joni Ernst to the Senate in 2014. That is why Iowa got 21 campaign events this year, not because it is a small state with a disproportionate number of electors. But Iowa now has only one Democratic congressman, two Republican senators, a fully Republican statehouse, and it voted for Trump. In the next election, Iowa is less likely to be considered a swing state. If it is not a swing state, it will suffer the same fate that all the safe states, large or small, suffered this year - it will be ignored.

The final myth about the electoral college is that the only way to change its pernicious effects is to amend the Constitution. This should be done of course, but the electoral college can be effectively abolished, and battleground and swing states right along with it, by the states themselves without a constitutional amendment. Under the Constitution, the states are free to direct their own electors to vote however the states choose. All of the states except Nebraska and Maine currently direct all their electors to vote for the winner of the statewide popular vote. But the states are free to direct their electors to vote for the winner of the nationwide popular vote instead, and the states can effectively abolish the electoral college by doing so.

This is the goal of the National Popular Vote Interstate Compact. States which adopt the Compact direct their electors to vote for the winner of the national popular vote. The Compact will go into effect only when it has been adopted by states with a majority of the electoral college votes, 270 or more. Ten states - California, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New York, Rhode Island, Vermont and Washington, as well as the District of Columbia - have enacted the Compact into law. Together they have 165 electoral votes. If states with 105 more electoral votes enact the Compact, the electoral college will be effectively abolished. Twelve more states with 96 electoral votes have passed the Compact in one house of their legislatures. Iowa should adopt the Compact too. More information on the Compact can be found at nationalpopularvote.com.

There is neither a historical argument, a fairness argument, or a small state benefit argument for the electoral college. This year the votes of over 2 million Americans, more than one out of every one hundred who voted, will be thrown away, even though those voters undeniably have the same moral right as every other American to have their vote count. They should have the same legal right too. This would not only be fairer to them, but to all of us because we could be them. It would be better for small states, large states and the country. Every American who took the time to go vote deserved to have their vote count. This is stolen from all of us by the electoral college. James Madison himself, who was a slave owning Virginian, said at the Constitutional Convention that in his opinion the best body for selecting the new President was 'the people at large.” Compared to the electoral college, this would have been disadvantageous to his own state, but he also said he was willing to make the sacrifice for the general good of the country. Every other American election is determined by popular vote of the eligible voters in the relevant state, district, or city. We have over two hundred years of experience with American democracy. Now is the time to bring that democracy to the election of the President of the United States. As the Pledge of Allegiance says, we are one Nation under God, indivisible, with liberty and justice for all - not just for a few thousand voters in a swing state.

' Richard Hileman is a lifelong Iowan and a retired partner at the Cedar Rapids Law Firm, Simmons, Perrine, Moyer and Bergman.