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Elector faithlessness is the least of the college's problems
Jun 11 2020
LaRue is former deputy director of the Eisenhower Institute and of the American Society of International Law. This piece is adapted from his article for a forthcoming issue of the University of Idaho Law Review.
<p>Listening last month, as Supreme Court proceedings were broadcast live for the first time, was a treat. In the "faithless electors" case, however, the novelty contrasted with the likelihood that the court's decision this month won't change much about how we select the president.</p><p>Whether states can punish electors for changing their pledged votes is a minor issue in the plethora of Electoral College problems. </p><p>The court is addressing it because lower courts rendered contradictory verdicts for cases from Colorado and Washington. Yes, the original idea of the Founders is that the electors would act as a sort of board of trustees in choosing the president. But practice quickly evolved toward the current system, voters selecting electors. And we now have more than 200 years worth of experience with their service as our delegates, instead of trustees.</p><p><p style="text-align: center;"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Even if the court decides electors can change their votes without consequence, that would not unleash the warned-of chaos of rogue electors conspiring or being bribed to change their votes — and with them the election's outcome. </p><p>Faithless electors are already rare and inconsequential. Of more than 23,000 votes cast since 1804, fewer than 100 can be considered faithless. Some peg the number at just 16. They will become even more rare, regardless of the court's decision or any state attempts to tighten laws binding them to vote the will of the electorate. Each political party will simply undertake deeper vetting to ensure its electors support its nominee.</p><p>The Electoral College's insidious erosion of democracy in each election and its capacity to cause dramatic chaos should concern us more. </p><p>Every four years it violates political equality by weighing each vote differently, based only on the state in which a citizen lives. Then, 10 percent of the time it delivers a misfire election, in which the winner of the most popular votes loses the election. This has occurred in five of the 49 elections since 1824, when the popular vote was first recorded.</p><p>Perhaps most damningly, the Electoral College disincentivizes voting. Too many states — red and blue, populous or not — are considered "safe" for one of the parties, which depresses turnout. Republicans and Democrats alike in such states too often can think "My vote actually won't make a difference" and stay home. In 2012, turnout in non-swing states was 11 percent below that in the battleground states. That only a handful are perceived to matter was demonstrated when Democrats Hillary Clinton and Tim Kaine campaigned in just 14 states four years ago.</p><p>Finally, the Electoral College was not the result of Founders' wisdom — but of their desire to finish and go home. It was a poorly conceived, last-minute transactional compromise. Its initial format failed outright after just four elections, and it has remained a thorn in democracy's side since being slightly tweaked with the 12th Amendment in 1803. It does not merit repair now.</p><p>Replacing it with "just" the popular vote is not viable, either, because we use winner-take-all plurality voting. In 19 elections in the last two centuries — two out of every five — a majority has voted for the losing candidates. Our leaky two-party system has meant two modern presidents have been elected with just 43 percent support, Richard Nixon in 1968 and Bill Clinton in 1992. </p><p>The Electoral College also minimizes the impact of third parties; if it is removed, more independent candidates would stay in the race through Election Day and the country would experience continued and even smaller plurality winners. The resulting destabilization would require yet another fix.</p><p>Majority rule — "the fundamental principle of free government," according to James Madison — should be our goal. Painfully and ironically, though, we do not pursue that when voting for president. Achieving it would require using some form of runoff, whether a second round for the top two vote-getters or, more plausibly, a version of <a href="http://thefulcrum.us/ranked-choice-voting" target="_self">ranked-choice voting</a>. </p><p>The National Popular Vote Interstate Compact, which would have states award their electors to the national popular vote winner, does not get us there. I applaud its aspirations, but it is destined to fail — and not because it has a partisan cast (only blue states are participating so far), permits plurality winners and is potentially unconstitutional. </p><p>Its inherent instability would be its fatal flaw.</p><p>First, by retaining the Electoral College structure, the compact signals to voters their state identity still matters — contradicting the compact's primary message. Then, if a participating state's voters support the loser of the nationwide vote, strong dissonance will occur when their electoral votes are awarded to the winner. States will respond by withdrawing from the compact, maybe dropping it below the 270 electoral votes required for activation.</p><p>This flaw will get closer scrutiny should the compact get closer to adoption. It is embraced now by 16 states plus D.C., representing196 votes. If the number reaches the 240s, say, the final states to get over the top will never materialize — and some participating now will likely drop out.</p><p>The Electoral College's ongoing damage to our democracy needs to be stopped. We need an election system that elects a president with majority popular vote support. And since we cannot go around the Constitution to correct a constitutional problem, this means pursuing an amendment, arduous as it appears today.</p><p>Getting such an amendment through Congress with two-thirds majorities, then ratified by 38 states, is likely to require a kick in the constitutional pants — from more frequent misfire elections where the Electoral College winner and popular vote winner don't match (most likely), an election decided by the House after no candidate secures 270 votes (less likely) or, if the Supreme Court allows it in coming days, enough electors changing their votes to change the outcome (least likely). </p><p>This could take many years to play out. But the sooner we give future generations the opportunity to celebrate the closing of the Electoral College, the better.</p>
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"From 1952 through 2016, Republicans and Democrats have taken eight-year turns in the White House with just two exceptions: A four-year interregnum for Democrat Jimmy Carter followed by a dozen straight GOP years under Ronald Reagan and George H.W. Bush," notes LaRue.
It's time to make presidents face the country's six-year itch
Apr 01 2020
LaRue is former deputy director of the Eisenhower Institute, a nonpartisan think tank at Gettysburg College, and of the American Society of International Law. He adapted this piece from an article he wrote in 2018 for the Election law Journal.
Getting reelected is becoming too easy for our presidents. Nine of the last 12 incumbents who sought a second term, including four of the last five, succeeded. A re-elected President Trump would make it four in a row.
The structure of maximum presidential service — eight years in two equal terms — strengthens this probability. Every incumbent has an advantage in pursuing reelection. And reelection itself is not a bad thing. But its timing at four years has become so unfair that I call it the "four-year crutch."
<p>This crutch consists of a fluid mix of factors that boost each incumbent differently. Extensive public exposure and access to institutional resources support their candidacies. And myriad other factors lessen public interest in ousting them after four years: the permanent campaign, partisan hype, media bias, disinformation, voter fatigue — even the Electoral College skewing the value of millions of votes. </p><p><p style="text-align: center;"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Voters give the incumbent the benefit of the doubt or see him as the better devil because he is known. Nonvoters are given reasons or find excuses to ignore their civic duty, or they are impeded from exercising it. (And they outnumbered Trump's 63 million voters in 2016 by 31 million.)</p><p>The four-year crutch is real, but also ephemeral. The electoral rhythm after a president's first wins is predictable: Pushback at two years, re-election at four and repudiation at six. Political commentator Kevin Phillips back in1984 labeled the phenomenon of the public souring on presidents they just re-elected as the "six-year itch," a valid term to this day. Such repudiation, however, does not stand alone; it extends to year eight, when lame-duck challenges and a nation's heightened desire for change weigh heavily against a would-be successor from the incumbent party. </p><p>These dynamics have produced an extraordinary record. From 1952 through 2016, Republicans and Democrats have taken eight-year turns in the White House with just two exceptions: A four-year interregnum for Democrat Jimmy Carter followed by a dozen straight GOP years under Ronald Reagan and George H.W. Bush. </p><p>To be sure, defining trends in presidential elections over time is highly problematic, because the factors affecting each contest vary widely, change every election and differ in intensity. </p><p>But two patterns have held. First, after eight years of one party's service in the White House, the voters — or, more accurately, Electoral College electors — usually turn to the candidate of the other party. Second, when this candidate prevails, he is almost never rejected after just one term. Carter is the one exception, going back to the 19th century. Trump could still give Carter some company, but the four-year crutch makes his path to victory easier than his opponent's.</p><p>Fundamentally, re-election after four years is too soon for the American psyche.</p><p>The timetable is set by the Constitution, so altering it would require an amendment — seemingly impossible today. Still, different presidential term lengths merit consideration. A six-year first term and three-year second term could work particularly well. (Requisite electoral synchronicity would occur by making House terms three years and adjusting Senate elections to be for half the body every three years; a three-year election cycle would result.)</p><p>Re-election or rejection at six years would align better with the public's proven inclination to exercise a more demanding electoral voice at that time. Such a structure also would value presidential terms more accurately. Second terms may not be cursed, but their increasingly diminished contributions should not be valued the same — by length — as first terms.</p><p>The additional benefits are compelling: A six-year initial term would be long enough to address a president's top objectives; a three-year second term would be more like a bonus and less automatically pursued; winning re-election during a six-year itch would mean a stronger second-term mandate; the president would be a lame duck for only a third (not half) of his or her time in office; the system would provide a bit of a break from the permanent campaign. </p><p>And, importantly, single-term presidents would not necessarily be considered failures and we'd see more of them.</p><p>The main concern would be enduring two extra years of a poorly performing incumbent. But this risk is offset because we have also re-elected presidents after four years who likely would not have prevailed two years later. (George W. Bush comes to mind.) If Trump wins this fall, might his opponents have preferred the greater likelihood of defeating him in 2022 — resulting in two fewer years of his service?</p><p>Amending the Constitution is even harder to contemplate when the ideals beneath it are under attack, while the electoral institutions and processes above it are in disarray. Election reform is a very crowded field: presidential nomination processes are dysfunctional, voting rights are threatened, campaign spending is out of control and our principal voting method — plurality winner-take-all — is both polarizing and non-majoritarian.</p><p>Still, we ignore our eroding electoral infrastructure at considerable risk. The disappearance of the single-term presidency could prove to be a leading indicator of growing structural weakness in our democracy. More two-term presidencies and more diminished second terms are likely to reveal increasingly serious faults with the system now.</p><p>We must regain our ability to repair the document that anchors America's civic life before its cracks spread too far. Changing the Constitution to alter the presidential election timetable, and with it executive branch's powers, is a fine place to start.</p>
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