Hard to Argue With Vagueness

In Iowa’s Gazette, one John Hendrickson has an editorial on the importance of preserving the Electoral College, as opposed to electing the president by popular vote. So let’s see what his reasons are.

He starts out with a few paragraphs that use words like “attack”, “elimination”, “undermine” to create a vague feeling that something bad will happen if the Electoral College is eliminated, without actually making anything that could be considered an argument.

He eventually gets to

When the Founding Fathers met in Philadelphia in 1787, our Constitution created a republican form of governance that limited the powers of the federal government. In Federalist Paper 45 James Madison wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The 10th Amendment further solidified what Madison wrote in Federalist 45. Historian Allen Guelzo correctly points out that the “Constitution never set out to create a streamlined national government.”

Hearkening back to the founding of the nation is very much on-brand. The revolutionary period is seen by many as a golden age, when a perfect constitution leapt, Athena-like, from the founders’ collective brow. Even a cursory glance at American history will belie this simplistic story, or even the first ten amendments: a bunch of states wouldn’t join the union unless the constitution were first amended.

Beyond that, Hendrickson still isn’t making much of an argument: he implies that the National Popular Vote movement somehow wants to give to the federal government powers that were properly given to the states, but doesn’t spell out what these powers are, or how they would be taken away. If the National Popular Vote Interstate Compact passes, elections will still be conducted by the states, the same way as before. In fact, the compact relies on the fact that each state can conduct elections however it wants to, including taking into account the way other states vote, if it wants to.

Hendrickson continues:

The American Founders did not wish the states to have a diminished role under the Constitution. The late constitutional scholar James McClellan wrote that the “entire Constitution is actually honeycombed with provisions designed to protect the residual sovereignty and interests of the states and to give them influence in the decision-making process at the national level.”

This certainly includes the Electoral College. In considering the election of the executive, the Founders rejected outright a direct, national election. In designing the Electoral College, the Founders wanted to ensure that the selection of the executive was independent of Congress and included the states; the Electoral College was designed to protect the interests of the states and the people.

Again, there’s lots of handwaving, but very little by way of actual argument. “[T]he Founders rejected outright a direct, national election.” Well, yes; the Electoral College was a compromise toget states like Virginia to join the union: Virginia hada lot of slaves, but comparatively few voters, and the Electoral College gave itmore influence in presidential elections than it would otherwise have.

But the mere fact that the founders set things up a certain way is no reason to keep them that way. Back in 1789, different states might as well have been different countries. Today, you can easily send money from a bank in Maryland to order something from a company in Connecticut (whose headquarters are in Delaware), and have it shipped from Georgia. Heck, Oklahoma currently has the same population as the entire country did in 1789. Times are different. If we’re going to quote the founders, how about Thomas Jefferson?

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

Hendrickson also writes, “the Founders wanted to ensure that the selection of the executive was independent of Congress and included the states”. Again, this is just vague threats. He doesn’t say how Congress would be involved in presidential elections, or how states would be excluded; he just throws that out as a vague threat.

Americans need to understand the importance of federalism to our constitutional republic. Federalism is as essential as separation of powers and checks and balances, allowing the states to maintain a level of sovereignty from the federal government. The Electoral College is the final “Rock of Gibraltar defense of federalism. “Federalism is in the bones of our nation and abolishing the Electoral College would point toward doing away with the entire federal system,” argues Guelzo.

Here, Hendrickson seems to be making some kind of slippery-slope argument, that electing the president by popular vote will somehow erode the separation of powers and, I don’t know, lead to autocratic rule or something. I’d like to avoid autocratic rule, and I’d be interested in how Hendrickson thinks this slow erosion might happen, if it weren’t for the fact that our Capitol was attacked a year and a half ago by a mob trying to undermine democracy and install an autocrat.

If the Electoral College was eliminated, Iowa would be ignored by presidential candidates and the voices of Iowans would be drowned out as elections would be decided by large urban centers.

Finally, we get to an actual pair of arguments. They’re stupid, but they’re still arguments: 1) if it weren’t for the Electoral College, candidates would ignore Iowa and Iowans’ concerns, and 2) the outcome of the election would be decided solely by big cities.

I’ve dispensed with (2) elsewhere. As for (1), the reason political campaigns pay attention to Iowa isn’t the Electoral College; it’s the fact that it has the first presidential caucuses. So there’s symbolism in winning the Iowa caucuses. It gives the winning candidates a morale boost. Beyond that, once the candidates are finally chosen, no one gives a shit. Iowa is a red state, one of those that the networks call on election night as soon as they’re legally allowed to. The Democrats write it off, and Republicans take it for granted. Getting rid of the Electoral College might actually help with that.

The fact that supporters of the Electoral College feel the need to write this sort of column is telling. If they had any solid arguments, they’d trot them out. Instead, we get this wishy-washy appeal to tradition and fear of change.

Cato Institute argues against NPVIC

The Cato Institute has an article arguing against the NPVIC. What I find interesting is that they use arguments that I haven’t seen a million times elsewhere:

Direct election of Electors: they argue that one reason the 1960 election was so close is that in Alabama, voters explicitly elected Electors, not presidential candidates. And that several of the chosen Electors were not pledged to any candidate. Under these circumstances, there’s no such thing as Alabama’s popular vote for president.

In this case, of course, the Secretary of State of each NPVIC state would, I presume, count the votes of people who voted for a pledged Elector as a vote for the candidate the Elector is pledged to vote for, and votes for unpledged Electors as “none of the above”: not votes for any presidential candidate in particular, so they don’t add to anyone’s tally.

Of course, while this sort of thing is both legal and in line with how I imagine the Founders imagined elections should be run, I can’t imagine any state adopting such a system any time in the foreseeable future: too many people are too used to the idea of voting for a presidential candidate to step away from that.

The Compact’s language simply assumes the existence of a traditional popular vote total in each state but it provides no details on how that is to be ascertained.

This is true. On one hand, yes, this seems like a flaw, since it provides little or no guidance in ambiguous or problematic cases. On the other hand, it gives a lot of power to states, the “laboratories of democracy”, which can come up with their own solutions.

Other shenanigans. North Dakota has already introduced a bill to publish a rough vote count, but withhold the precise vote totals until after the Compact states have to come up with a national vote winner. Yes, this is a clear jab at the NPVIC.Again, it seems the sensible approach for a Compact Secretary of State would be to take the minimum values of the rough counts and add those counts to each candidate’s totals.

In this particular case, North Dakota doesn’t have enough voters to make a difference in any but the tightest elections, but things could be different if a state like Texas or Florida tried to pull this. Of course, if Secretaries of State adopt the strategy I suggested above, that means that Texas or Florida would be reducing its vote counts (and its influence in the election) just to thumb its nose at a plan it doesn’t like. Which is not to say it couldn’t happen.

More generally, it seems likely that state legislatures will play silly games to try to undermine the NPVIC by blurring the vote count, making the Compact difficult to enforce, or otherwise. This could lead to some chaotic elections as states scramble to figure out how to come up with a popular vote when not all states are cooperating. In the long term, though, if the NPVIC passes, I suspect that people will quickly become enamored of directly voting for president, and won’t want to turn back the clock, not even to own the party they dislike.

Ranked Choice Voting. Maine apparently already used ranked-choice voting in presidential elections, and this does seem to present a special challenge.

I don’t think this is worth worrying about, though, since Maine already has to pick electors, which means they have to have a way of coming up with a final vote. I haven’t looked into this, but after some number of elimination rounds, some candidate gets N votes, where N is greater than 50%, and gets some number of Electoral Vote pledges. Maine also has a split system where not all of its Electors vote the same way, but however it’s decided, it has to boil down to “N votes > M votes”. So just add up the Ns to get Maine’s contribution to the national popular vote.

Cato’s objection, however, is a bit different: whoever wins the final round might actually end up with more votes than any of the first-choice candidates. So that creates an incentive for a candidate to not try too hard in Maine, and actually try to come out #3 or #4, rather than #1.

IMHO this seems fantastic. I seriously doubt that anyone can campaign with that kind of laser-precise skill. Candidates already have a hard enough time trying to be #1. I don’t know how you’d even manage to try to be #3 without seriously risking losing the election altogether.

But beyond that, ranked-choice voting is designed so that the candidates who come out ahead after several rounds are the compromise candidates that no one is especially excited about, but that everyone can live with. I would expect to see people like Bernie Sanders, Lyndon Larouche, Ralph Nader, Donald Trump — candidates that people feel very strongly about — to be at the top of ballots, and people like Joe Biden and Mitt Romney further down, under “I’ll settle for this person” rather than “I really want this person to be president.” So to the extent that Cato’s argument is true, it would seem that ranked-choice voting would tend to boost consensus or compromise candidates in Maine. And that’s fine.

Inconsistent results. The worst-case scenario envisioned by the Cato article is one in which different member states can’t agree on who won the popular vote, and allocate their Electors in an inconsistent manner. Once the dust settles, and the national popular vote is agreed on, it might be that the national popular vote winner didn’t get the presidency. I agree that that would be bad, but it also seems that the odds of this happening seem to be lower than one in nine, which means it’s already an improvement over the current system.

On the Filibuster

The usual argument for the filibuster is that it prevents the majority from simply steamrolling its agenda: if every piece of legislation only needed a simple majority to pass, then in the current Senate, 51 Democrats (including VP Harris) can, if they’re united, do anything they want, and ignore the 50 Republicans. Clearly, that’s not ideal. There should to be a mechanism to prevent that, at least in important cases.

At the same time, Americans elect Senators to actually get stuff done. If Americans elect 59 Senators from party A, and 41 from party B, it’s because they want to advance party A’s agenda, and have it completely thwarted by party B is also not ideal.

But that’s what we have now: Senators don’t need to do a talking filibuster like Jimmy Stewart in Mr. Smith Goes to Washington. All they need to do is send email announcing their intention to filibuster a bill, and that bill effectively requires a 60-vote supermajority to pass. The Constitution reserves supermajority requirements for extreme situation, because the founders realized the need to balance fairness with getting stuff done; there’s a reason they switched from the Articles of Confederation to the federal constitution.

If, as is often claimed, the purpose of the filibuster is to promote compromise, then a better way to reform the Senate rules might be to guarantee the minority party(ies) certain rights, like being able to propose amendments, or introduce some legislation that the majority party doesn’t even want to consider. I’m open to the idea that it might be a good idea to preserve the talking filibuster, for those cases where one or a handful of Senators feel so strongly about an issue that they’re willing to pay a personal cost to block it. But blocking legislation shouldn’t be routine.

Ending the Tyranny of Biannual Time Changes

Like most people, I hate changing the clocks twice a year, to say nothing of having to get up an hour early for Daylight Saving Time. So naturally my ears perked up when I heard about Senate bill 623, which would make Daylight Saving Time permanent. We’re still switching to DST tomorrow, but if this passes, we won’t switch again this fall. Or next spring.

The bill was introduced by Marco Rubio (R-FL), and I can’ tell you how weird it feels to be on his side, but so far, I can’t see anything wrong with the bill. Well, there’s the fact that the text of the bill is not yet available. And the title is “A bill to make daylight saving time permanent, and for other purposes.” Without the text, we won’t know what those “other purposes” might be.

On the other hand, the bill has several Democratic cosponsors, so maybe I’m worried over nothing.

Meanwhile, IndyStar reminds us that Rubio and others have introduced this or similar bills in the past, and they have yet to pass. But still, call your senators and tell them you support this bill and doing away with changing clocks all the time.

“The Filibuster Should Be Painful”

Joe Manchin appeared on Fox News Sunday and said he supports the filibuster, but it should come at a cost:

“The filibuster should be painful, it really should be painful and we’ve made it more comfortable over the years,” he said on “Fox News Sunday.” “Maybe it has to be more painful.”

“If you want to make it a little bit more painful, make him stand there and talk,” Manchin said. “I’m willing to look at any way we can, but I’m not willing to take away the involvement of the minority.”

Which echoes something I’ve been thinking for some time.

Yes, the filibuster is a hack. But what it does is give the minority — sometimes a minority of one — the power to block legislation. And yes, some legislation, even legislation with majority support, is bad and needs to be blocked. I’m aware that this paragraph would sound a lot better if it weren’t for the fact that the second most famous filibuster (after James Stewart’s) is Strom Thurmond’s filibuster of the Civil Rights Act. But let’s posit for the sake of argument that some legislation is bad and ought to be stopped.

The talking filibuster does that. But at some point in the 1960s, the Senate started switching to the “procedural filibuster”. In contrast to the stay-up-all-night-talking-without-a-bathroom-break, or “talking” filibuster, the procedural one basically means role-playing one: one Senator announces their intention to filibuster, the others roll for WIS take a vote on whether to make the first Senator shut up, and then either stop debate as if the clock had been run out, or tell the Senator‘s character to put a sock in it and take a vote on the original bill.

The problem with this is that it’s too easy: any contrarian dickbag can derail the Senate with no cost to themselves. That’s like having the emergency brake on a train accessible to toddlers, with no fines or repercussions for misusing it: unless you live in a community of saints, that train would never go anywhere. And so it is with the Senate these days. So returning to the talking filibuster would help ensure that legislation is blocked only when the minority feels very strongly about it; strongly enough to stay up all night talking without a break.

At the same time, as I said, it’s a hack. In particular, the talking filibuster would tend to favor younger, healthier senators. Perhaps a different solution could be worked out, like maybe Senators are given one filibuster coupon at the beginning of each session, and once it’s used up, it’s gone. Or maybe they can get one super-vote that’s worth ten regular votes, but then they forfeit the next ten votes. These are just off the top of my head, and I’m sure they can be abused as well. But I would like to stop letting every dumbass reactionary block legislation, so things can actually move forward.

Graph listing the US presidential elections from 1904 to 2020
When Your Debate Opponents Argue Your Point

While researching arguments for and against the National Popular Vote, I ran across the site Keep Our 50 States, which tries to argue for keeping the Electoral College, and, um, it doesn’t do a very good job of it.

For instance, the “The Issue” page shows this Mike Lester cartoon:

I’m not sure what this is supposed to convey. That California’s 55 Electoral Votes are neatly balanced by… New York’s 29? Is it because they’re both reliably-Democratic states? So shouldn’t Texas be in there as well? Or are it and Florida lumped in with the “flyover states”? This is very confusing.

Speaking of confusing graphics, the same page has this chart:

Graph listing the US presidential elections from 1904 to 2020

At first blush, this appears to be the worst argument ever devised for the Electoral College. Saying “the Electoral College is fair because it elects equal numbers of Republicans and Democrats” is like saying “this judge is fair because he convicts half of the defendants who come before him, and acquits half”. You can’t know whether the judge is fair until you know how many of his defendants are actually guilty (maybe 90% are, and he lets a lot of guilty people go free; or maybe only 10% are, and he wrongly convicts a lot of people who come before him. Likewise, we can’t judge whether the Electoral College is fair until we know what the outcome of an election is “supposed” to be.

And, of course, that goes to the heart of the matter. In a democracy, we’re used to the winner of the popular vote winning the election. That’s how it works for governors, senators, mayors, and pretty much every post except president. So the argument above is remarkably wrong.

But beyond that, what amazes me is this: the person who designed the graphic had one job: fit thirty data points into three columns. But apparently this Einstein divided 30 by 10, somehow got 9, and then tried to shoehorn the remaining three entries on the sides.

I’m open to debate, and I don’t mind having my mind changed. But please, try to do better than this.

Republicans Voting Against Their Interests Again

Law & Crime is reporting that the North Dakota Senate has passed SB 2271, which would block the release of presidential vote totals in the state until after the Electoral College votes.

It’s ironic that Republicans, who were crying for election transparency in the 2020 election, are pushing this kind of anti-transparency bill. But it makes sense:

Law & Crime says that “The bill is designed to prevent implementation of the national popular vote compact – a multi-state agreement aimed at circumventing the Electoral College.” and other sites, including right-leaning ones, agree.

It’s also ironic because North Dakota is a “safe” state: Democrats know they can’t win it in a presidential election, and Republicans know they can’t lose it, so neither party bothers campaigning there. The Electoral College actually harms Republicans in North Dakota by encouraging campaigns to ignore their state-specific issues. If North Dakotans want the same thing as Floridians or Pennsylvanians, great. If not, they’re out of luck.

But this seems to be another case of Republicans acting against their interests purely to Own the Libs.

National Public Vote: Close Elections

One of the nightmare scenarios sometimes brought up when arguing for the Electoral College and against the popular vote is, what happens in case of a really close election? There would have to be a nationwide recount. Think Florida 2000, times 50.

For instance, take the 1960 election, where Kennedy beat Nixon by 0.17% of the popular vote. He won by 84 Electoral Votes, a comfortable margin, but this seems to be the sort of thing that the close-race argument seeks to address.

For one thing, it seems to me that if the race is that close, that’s exactly when you want to count votes carefully, to make sure that the right person is put in the White House (assuming that the National Popular Vote Interstate Compact passes).

But another argument is more pragmatic: elections are run at the state level, not the federal level, which means that the election would have to be contested in fifty separate jurisdictions. Fifty judges would have to be convinced that the case even has merit.

Furthermore, the vote might be close on the national level, but probably won’t be on the state or county level. See the county map of results for the oh-so-close election of 1960:

Map of results of the 1960 US presidential election, by county. Map by www.nhgis.org and Wikimedia Commons user Tilden76.

Let’s say a suit is brought in a state that isn’t a member of the Compact, where the vote isn’t close. Say, Utah. It’s easy to imagine a judge saying that the vote in Utah is clear enough; there’s no need to conduct a recount, because it’s clear which way Utah’s Electors will vote.

Given that each campaign has only a limited amount of money to pay for lawsuits, they’ll have to prioritize those suits that’ll give them the most bang for the buck. That suggests that the suits will have to be concentrated in states where the count is close (think Florida in 2000), or which are members of the Compact, or where for one reason or other, the suing campaign thinks it can win a significant number of votes. I think that means that small states are relatively immune from this, simply because barring significant shenanigans, there just aren’t a lot of votes to be gained in a state with a low population. That means that recounts are more likely in more populous states like California, Texas, New York, and, yes, Florida.

Remember that what matters is the total national vote: if, say, the Republican candidate’s campaign sues in California, its goal is not to flip the state blue; just to pick up votes. If it argues that 300,000 ballots were discarded improperly, and once they’re reinstated, it turns out that 100,000 of them were for the Democratic candidate and 200,000 for the Republican one, that doesn’t change the fact that a large majority of Californians voted Democratic. But it does mean that the Democrats pick up 100,000 votes while Republicans pickup 200,000, so Republicans win. You can do the same thing in North Dakota or Delaware, but the numbers will be smaller, so the same amount of effort yields smaller rewards.

So yeah, in the case of a close election, there would be a bigger recount than just one state as in 2000, but it probably wouldn’t involve all fifty states. But that’s probably what ought to happen anyway, in a close election.

Popular Vote: Majority Rule Is Disenfranchisement

Here’s a rather breathless letter to the editor of the Brattleboro (VT) Reformer, promising dire consequences if we start electing presidents the same way we elect governors, senators, mayors, and school board members:

The Los Angeles Times editorial (Feb. 17 in the Reformer) would like to disenfranchise more than half our nation by ending the electoral college, validating only “mob rule” elections dominated by metropolitan area voters and perhaps a portion of their rural allies. Vermont’s legislature endorsed the “National Popular Vote Interstate Compact” which would effectively disenfranchise a sizable portion of Vermont voters, as actually happened prior to that in the 2016 election when our three electors all voted for one popular candidate, even though the Vermont voters were divided 2 to 1. So one third of our voters were ignored entirely.

Dave Garrecht, Guilford, VT

Mr. Garrecht seems confused with worry. For one thing:

disfranchise [ dis-fran-chahyz ]:
verb (used with object), dis·fran·chised, dis·fran·chis·ing.
1. to deprive (a person) of a right of citizenship, as of the right to vote


No one is talking about taking away anyone’s right to vote. What he’s upset about is not getting his way, as he demonstrates in the rest of the sentence:

as actually happened prior to that in the 2016 election when our three electors all voted for one popular candidate, even though the Vermont voters were divided 2 to 1. So one third of our voters were ignored entirely.

No, no one ignored anyone. It’s just that the minority lost. That’s how it works in a democracy. Get used to it.

He mentions “mob rule”, as do a lot of other people, so that’s worth addressing. Wikipedia’s definition seems as good as any I’ve seen:

Ochlocracy […] or mob rule is the rule of government by mob or a mass of people, or, the intimidation of legitimate authorities. As a pejorative for majoritarianism, it is akin to the Latin phrase mobile vulgus, meaning “the fickle crowd”, from which the English term “mob” originally was derived in the 1680s.

Now, no one is condoning, or even suggesting, intimidating anyone. So really, the biggest fear worth addressing is that the majority might vote to take away the rights of the minority, as in the old quotation about how “Democracy is two wolves and a lamb voting on what to eat for lunch.” It’s worth reading the context, in Marvin Simkin’s article in the Los Angeles Times:

Democracy is not freedom. Democracy is two wolves and a lamb voting on what to eat for lunch. Freedom comes from the recognition of certain rights which may not be taken, not even by a 99% vote. Those rights are spelled out in the Bill of Rights and in our California Constitution. Voters and politicians alike would do well to take a look at the rights we each hold, which must never be chipped away by the whim of the majority.

This problem has been recognized for a long time, and that’s why the first ten amendments to the US Constitution spell out a list of rights that can’t be taken away by a simple vote. And nobody’s trying to take that away here.

In short, Mr. Garrecht is upset over nothing. No one’s taking away anyone’s vote. If anything, the popular vote would make more people’s vote significant. And really, if you’re supporting an unfair system for fear of what other people might do to you if their vote counts the same as yours, what does that say about you?

Counting Every Vote Will Nullify Your Vote

An editorial at Fredericksburg.com warns of dire consequences if the National Popular Vote Interstate Compact passes:

The House of Delegates voted to have the Old Dominion join the National Popular Vote Interstate Compact, an agreement that would force Virginia’s 13 electors to vote for the candidate chosen by the national popular vote.

Joining this compact would have nullified Virginia’s voice in this most important of all elections, enabled the tyranny of the majority, and upended a system that has worked well for 233 years.

This is an argument I’ve seen elsewhere; particularly the “nullify” part of it. As I see it, it’s just seizing on the more eyebrow-raising part of the NPVIC–the idea that a state’s Electoral Votes will sometimes be given to a candidate who didn’t win that state’s popular vote–and presenting it as though it were a new idea.

The word “nullified” makes it sound as though Virginia’s voters would be deprived of their chance to participate in the election. In fact, if this situation were to arise, it would simply mean that the majority of Virginia’s voters would have lost the election, something that has happened any number of times.

In fact, a popular vote would achieve the reverse of what the author fears. Let’s say that the Compact passes, with states totaling 270 Electoral Votes signing on, but Virginia holds out and doesn’t sign on.

In the next election, the winning strategy changes: instead of looking at states as blocks and assuming that California will vote Democratic and Texas will vote Republican, candidates will have to appeal to broad swaths of people: suddenly the Republicans in California and the Democrats in Texas are worth reaching out to. And so are the voters in Virginia, be they Democrat, Republican, third-party, or independent. Unlike the present system, every one of those votes will move the dial a little bit to the left or to the right.

So far from nullifying anyone’s vote, the popular vote would make everyone’s vote count.