Since the 2016 election, people have demanded that we abolish the electoral college in favor of a national popular vote. I said the same thing in the wake of Trump’s victory, but I realize I was saying that out of sour grapes. That the candidates I happened to oppose in 2000 and 2016 (Bush and Trump) lost the popular vote but won the election is no reason to trash the voting system. What if the shoe were on the other foot?
The fact is that the electoral system is a very good one, but flawed since the days of Andrew Jackson. This is what Edward Foley argues in his timely new book, Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College. Not only is this book timely during the 2020 primaries, it sheds added light in my ongoing president series.
The electoral college as we know it was set down in law in 1803 during the presidency of Thomas Jefferson, which is why Foley calls it the Jeffersonian system. It reflects, rightly, that the United States is a federal republic, made up of individual states each requiring a distinct voice in elections. America is not a single monolithic “democracy” to be ruled by an overall popular vote. If it were, then presidential candidates would never bother appealing to smaller states with low populations. Candidates would seek votes from those living in big cities on the east and west coasts, along the Mississippi and Ohio Rivers, and along the Great Lakes. If you don’t live in those areas, your views would hardly matter; effectively, you wouldn’t be part of the constituency.
Not only that, a national popular vote carries the danger of mob rule — like the reign of tyranny during the French revolution, or the Brexit vote, when 51% or 52% of the people imposed their will on 49% or 48%. The American founders wanted more than just a simple majority rule; they wanted a compound form of majority rule, or a “majority of the majorities”. Since Jefferson’s presidency in 1803, the goal of the electoral college has been based on this principle of compound majority rule — not a majority of the national popular vote, but a majority of the electoral votes compiled from states in which the victor also achieved a majority of the statewide popular vote.
That system works like a gem in two-party elections, where the winner by necessity obtains a compound majority of the vote. But ever since Andrew Jackson’s presidency in 1828, plurality “winner-take-all” elections became the dominant method of the states, and that’s how it remains to this day. Meaning, even if a candidate doesn’t receive a majority (more than 50%) of the popular vote in the state, as long as he or she receives a plurality (which can be less than 50% as long as it’s more than any other candidate), that candidate takes all of the state’s electoral votes. This makes it possible for a third-party or independent candidate to rob another candidate of a true Jeffersonian victory.
The Six Election Failures, and Their Consequences
In his book, Foley discusses the “Jeffersonian failures”, that is, six cases in which the winning president (a) would have (or might have) lost the election if he had been up against a single opponent, and (b) failed to achieve a majority of the electoral votes by accumulating votes in states in which he also achieved a majority of the (statewide) popular vote. They are the elections of 1844 (James Polk), 1884 (Grover Cleveland), 1912 (Woodrow Wilson), 1992 (Bill Clinton), 2000 (George W. Bush), and 2016 (Donald Trump).
In the recent two cases, everyone fixates on the fact that Bush and Trump lost the national popular vote. But that’s irrelevant. There have been other presidents who lost the national popular vote: John Quincy Adams in 1824, Rutherford Hayes in 1876, and Benjamin Harrison in 1888. But their victories were still achieved by the compound-majority standard. They won the presidency on pure terms. (And for that matter, Adams and Hayes were far better than those they were running against, Andrew Jackson and Samuel Tilden, respectively.) The victories of Bush and Trump, by contrast, failed the standard, not because they lost the national popular vote (which again is irrelevant), but because they didn’t achieve the majority of majorities.
I’ll go through all six, and spell out the drastic consequences (except in one case) of these undeserved presidential victories. The presidents in green would have definitely lost in a heads-up contest; the blue cases are unclear.
- James Polk (1844). His rival was Henry Clay (Whig). The presence of James Birney (Abolitionist) on the ballot caused Clay to lose, since most Birney voters would have supported Clay over Polk. Clay wasn’t the abolitionist Birney was, but he was far less pro-slavery than Polk. Without Birney in the mix, Clay would have been the clear Jeffersonian winner; he would have achieved a compound majority of majorities.
— Electoral votes: Of the 138 minimum required electoral votes, Polk got 170, but only 129 came from states in which he won the popular vote.
— Consequence: Polk was the king of manifest destiny (the term was coined on his watch), and thanks to him, the country was put on a clear path to the Civil War. Polk recklessly courted war with two countries at once (Mexico and Britain) for what he perceived as a God-given right (seizing territory in the southwest and northwest), and for waging war on the weaker nation, the Mexican War, which the American citizens and Congressmen opposed and thought immoral. The end result was a preordained Civil War, as southerners wanted all the new territories acquired in the Mexican War to include slavery, while northerners wanted to prohibit further extension of slavery. Under the Missouri Compromise of 1820 both sides had been kept happy, but the new land in the southwest changed all that. Had Henry Clay become president as he should have, America’s history would have unfolded much differently.
- Grover Cleveland (1884). His rival was James Blain (Republican). The presence of two minor-party candidates — Benjamin Butler (Greenback) and John St. John (Prohibitionist) — on the ballot caused Blain to lose, since most everyone who supported these candidates would have voted for Blaine over Cleveland.
— Electoral votes: Of the 201 minimum required electoral votes, Cleveland got 219, but only 153 came from states in which he won the popular vote.
— Consequence: His accidental victory paved the way to a second term, and during both of his terms (1885-1889; 1893-1897) Cleveland set the country back and then some. He believed his primary mandate was to veto anything that came across his desk; he vetoed literally hundreds of bills more than any other presidents in history (save FDR). He supported the segregation of blacks and refused to enforce their voting rights. Thanks to him, the Indians got shafted and lost 67% of their land holdings. He lobbied Congress to ban Chinese people from reentering the U.S. if they left. He believed that women had no place in politics and condemned the suffrage movement. He sent federal troops to break up a union strike being conducted by workers forced to live like slaves in “Pullman towns”. He refused to sign pension bills for disabled Civil War veterans. He refused to lift a finger to aid those suffering from drought and natural disaster. Basically, as the Progressive Era was under way in the 1890s, Cleveland shat on minorities, women, the lower classes, the disabled, and anyone in need of help.
- Woodrow Wilson (1912). His rivals were William Taft (Republican) and Ted Roosevelt (the Bull Moose), the latter of whom was running again for a second term, but as an ex-Republican third-party candidate. That decision gave Wilson a thoroughly undeserved slam-dunk victory, since both Roosevelt and Taft divided what otherwise would have been clear majority victories for either one of them. Roosevelt wasn’t as fiscally conservative as Taft, but he was still far more conservative than the populist Democrat Wilson. Those who voted for Roosevelt overwhelmingly preferred Taft over Wilson, just as most who voted for Taft favored Roosevelt over Wilson.
— Electoral votes: Of the 266 minimum required electoral votes, Wilson got a whopping 435, but only 126 came from states in which he won the popular vote. With almost 3/4 of his electoral votes from states where he could not obtain a popular majority, Wilson was a serious Jeffersonian failure.
— Consequence: There is no U.S. president who has had a more catastrophic impact on the country, or indeed the entire world, than Woodrow Wilson. World War I could have easily ended in 1916, and probably would have, but it kept going because Wilson decided to bring America into it in 1917. He entered the war as part of his wider agenda to “sell” American values abroad, enlarge markets overseas, and leave a mark on global affairs. He succeeded in that aim with a vengeance. Not only did he lead America into a pointless slaughter and perpetuate it, the way he did so later caused the largest war in world history (World War II) and the longest war in American history (the Cold War). Lenin, Stalin, and Hitler were all monsters born of Wilson’s policies. At home Wilson violated civil liberties more than any other president. He used the post office and Justice Department to suppress free speech, and ordered the War Department to censor all telegraph and telephone traffic. He fined and imprisoned thousands of citizens for criticizing the war. He was a virulent white supremacist who put whites in jobs that his Republican predecessors had given to blacks, and he encouraged some of his cabinet members to re-institute racial segregation in federal agencies. Racial violence escalated during his administration, along with lynchings, anti-black race riots, and the birth of the second Ku Klux Klan. On top of all this, he created the Federal Reserve, which contributed to the Great Depression and future recessions with a massive centralized easy-money supply. It’s no exaggeration to say that Woodrow Wilson torpedoed the 20th-century and beyond. That he should have never been president to begin with is sobering.
- Bill Clinton (1992). His rival was George H.W. Bush (Republican). The presence of Ross Perot (Independent) on the ballot may have caused the Elder Bush to lose, though this isn’t clear. Some analysts say that Perot actually pulled more votes away from Clinton than Bush.
— Electoral votes: Of the 270 minimum required electoral votes, Clinton got 370, but only 9 — yes, 9 — came from states in which he won the popular vote (6 from his home state of Arkansas, and 3 from Washington D.C.). That’s 98% of his electoral votes from states where he could not obtain a popular majority. By this yardstick, Clinton’s election was the worst Jeffersonian failure in U.S. history.
— Consequence: This is the only case of the six where the consequence of a failed Jeffersonian victory was actually (IMO) for the better. Clinton wasn’t a great president overall, but he was an improvement on the Elder Bush. His economic and fiscal policies were outstanding. He slashed federal spending and turned a huge deficit from the Reagan and Bush eras into surplus. If this trend of budget surpluses had continued, all national debt would have been liquidated by 2013. (The Younger Bush and Obama would kill this streak with nation-building wars and fiscally toxic bailout/stimulus packages.) Thanks to Clinton, we got the prosperity of the ’90s. His accidental victory turned out plenty of good.
- George W. Bush (2000). His rival was Al Gore (Democrat). The presence of Ralph Nader (New Party) on the ballot certainly caused Gore to lose, since most Nader supporters viewed Gore as preferable to Bush. Gore would have been a pure Jeffersonian winner, no question.
— Electoral votes: Of the 270 minimum required electoral votes, Bush got a bare 271, and only 217 came from states in which he won the popular vote.
— Consequence: Like Woodrow Wilson, the Younger Bush left disaster in his wake, on America and the world. He was responsible for the 9/11 attacks, because he could have prevented them. He was responsible for ISIS, because he deposed the lesser evil of Saddam Hussein. He was responsible for peddling a rosy view of Islam, which impedes an understanding of the motivations of jihadists — the religious ideology that drives groups like al-Qaeda and ISIS. He was responsible for the deaths of over 4000 American soldiers and 100,000 indigenous peoples in Iraq. His gross fiscal policies caused the Great Recession, and he chose to “heal” the recession by making the whole thing worse with bank bailouts. He believed himself to be above the law and disdained Congressional checks on his authority. Like Abraham Lincoln (and no other president), he claimed the right to “disappear” citizens without the need for an arrest warrant, list of charges, trial, or access to a lawyer. Also like Lincoln, he suspended the writ of Habeas Corpus, which is a citizen’s right to challenge detention. Most notoriously, he created CIA detention centers overseas, and the Guantanamo prison in Cuba, where he and his vice president sanctioned the use of torture. If Nader had not been on the 2000 ballot, Al Gore would have obtained a pure Jeffersonian victory, and today’s political climate might be unrecognizable, maybe even an idyllic paradise compared to what has been left in the wake of the Bush-Obama-Trump fiascos.
- Donald Trump (2016). His rival was Hillary Clinton (Democrat). The presence of both Gary Johnson (Libertarian) and Jill Stein (Green) on the ballot may have caused Hillary to lose, but it’s hard to say. Many Johnson supporters, at least, viewed Trump as the lesser of two evils and would have voted for him anyway.
— Electoral votes: Of the 270 minimum required electoral votes, Trump got 304, but only 197 came from states in which he won the popular vote.
— Consequence: The outcomes of Trump’s leadership are still unfolding and not a pretty sight. How bad he ends up remains to be seen, but he’s quite similar to Andrew Jackson. Like Jackson, Trump came as a savior to the disaffected, an outsider to politics and unstable, appealing to the masses who were furious at an elitist government doing nothing for them. His demagoguery calls to mind the usurpers of Rome who led their republics to ruin in the name of saving them.
The most catastrophic of these election failures were those of Wilson and Bush. Cleveland was garden-variety bad, and Bill Clinton was actually for the better. Clinton and Trump may have owed their election victory to a third-party candidate, though it’s not clear. The other four — Polk, Cleveland, Wilson, and Bush — unquestionably got into the White House by third-party accident.
And once again, lest the point be misunderstood, the national popular vote is not the issue. As Foley says,
“The point is not that Hillary Clinton won more popular votes nationwide than Donald Trump. For one thing, Hillary Clinton had only a national plurality (48.18%), not a majority, of the popular vote. Trump might have been able to win a national runoff against Clinton. It depends on what the Johnson and Stein voters would have done in a national runoff. Instead, the key point is that Hillary Clinton might have been the majority-preferred candidate in enough states for an electoral college majority.” (p 116)
Foley also expresses concern that half of the above six failures (1992, 2000, 2016) have come in the last quarter century:
“One reaches the alarming conclusion that the last quarter century has been the most problematic period in the history of the Jeffersonian Electoral College. It is not clear that the Jeffersonian system identified the correct winner, from its own perspective, in 1992. It is absolutely clear that the system misidentified the correct Jeffersonian winner in 2000. In 2016, it is again unclear whether the system was correct or incorrect, according to its own principles. This record of three fumbles in the space of seven elections is cause for great consternation… The Jeffersonian system, as it currently operates with its Jacksonian appendage of plurality winner-take-all, cannot adequately handle multi-candidate races.” (pp 116-118)
The recent flurry of fumbles probably owes to the ascendance of tribal politics. More and more independent and third-party candidates have been trying to offer alternatives to what has been a dismal status quo since the ’90s, and an outright failure of Republicans and Democrats in the new millennium. Foley is right in any case. The problem was never with the Jeffersonian model. The seeds of the problem were planted in 1828, when the Jeffersonian insistence on majority winners transformed into a Jacksonian willingness to accept (statewide) plurality results.
If there’s any way to fix the electoral system, it has to made on the state level. A federal level remedy would mean a constitutional amendment, and that’s never in a million years going to happen. Foley proposes that individual states require that a candidate must receive a majority (not plurality) of that state’s popular vote in order to receive all the electoral votes, and then implement a system to determine how that can be achieved. Anything short of that, he says, results in an electoral college majority that is meaningless, because it relies on a series of plurality “winner-take-all” outcomes at the state level.
The solution is not to prevent third-party and independent candidates from getting on the ballot, because that would violate the Fourteenth Amendment. The Constitution requires states to give minor parties and independent candidates a fair chance that they are better alternatives to either of the major party candidates, and that is indeed as it should be. The solution is to have runoffs, whether a two-round system (which New Hampshire adopted in 1792) or an instant runoff procedure (which Maine adopted). Under the first system, any and all parties would participate in the first round of voting and have an equal chance of making it to the second round, in which the two candidates who got the most votes would compete heads-up for a majority victory. Under the instant runoff system — often called rank-choice voting — voters would rank all the candidates according to their order of preference, but without obligation; the voter could vote for as few (even only one) candidate if he or she chose. The instant runoff system effectively holds the two rounds of voting at the same time.
The two-round and instant runoff systems are probably the most straightforward methods, but there are other ways of ensuring majority winners besides. States would have the leeway to decide what works best for them. It’s a realistic goal, unlike trying to modify the Twelfth Amendment. I agree entirely with Foley’s proposal. Andrew Jackson corrupted a fine system. It’s time to uncorrupt it.