As things stand right now, according to CNN, Hillary Clinton has won 1,598,268 million more nationwide popular votes than Donald Trump. With just over 2.5 million more votes to count in California alone, it is likely that Clinton’s lead will grow to over 2 million votes. This is the fourth Presidential election where the winner has polled fewer popular votes than the loser. The 2016 election looks like giving Clinton a 1.5% margin (right now it is 1.2% or 47.9% Clinton versus 46.7% Trump). The 1876 Presidential Election saw the loser (Samuel Tilden) win a whopping 3% more of the popular vote than the winner Rutherford Hayes. Benjamin Harrison’s popular vote losing margin over his defeated rival Grover Cleveland in the 1888 Presidential Election was a more modest 0.8%. Finally, the margin that Al Gore won over 43th President George W Bush in the 2000 election was only 0.5%.
History of the Electoral College
As most people know, the President of the US is not elected by the direct popular vote of the people but by what is called the Electoral College. To understand the Electoral College and why it was devised in the US Constitution, one must understand the whole process of the formation of the United States as a single nation and its unique Constitutional structure. As it says in its name, the country is the UNITED STATES or a federation of what were formally independent states or colonies of Great Britain. Each colony (as was the case with New Zealand’s provinces in the mid-19th century) had evolved different laws, customs and legislatures. Representatives to these legislatures were elected differently. The differing attitudes to slavery was a thorny issue right from the inception of the new nation. Preserving state’s rights and state autonomy was paramount. It is why the Constitution, unlike any other governing document, enumerates specifically only those few matters that the new Federal Government was responsible for (defense of the nation, customs duties and interstate commerce rules etc.) leaving all other powers BY DEFAULT to the preserve of the States. The 10th Amendment has no equivalent in other countries that became federations of former states or colonies like Canada, Australia or Germany.
Intrinsic in the states retaining such autonomy was their absolute control over electoral matters. Other than the Federal election procedures specified in the Constitution, all electoral matters are decided at the state level such that the vast differences in state electoral law could easily fill a voluminous encyclopedia. For this reason, the US Federal Constitution has a Senate that has equal power to the other legislative arm of government, the House of Representatives with two Senators per state regardless of size versus the population based formula for apportioning the number of House seats per state. Please note that the number of House seats was capped at 435 in 1911 and so after each 10 yearly US census, there is a realignment of House seats with states with a shrinking percentage of the overall population losing seats to the high growth states in the Sun Belt.
Inherent in the entire US project and echoed by many of the Founding Fathers who drafted and signed the Constitution, (brief historical aside – my mother is American and we are related to Josiah Bartlett the 4th signer of the Declaration of Independence) did so with a mind to protect the rights and power of smaller states. There was already a power imbalance between the larger of the 13 original colonies (such as New York and Pennsylvania) versus the smaller states (such as Delaware, Rhode Island and Connecticut). The power of the larger states’ House delegations to pass Federal legislation favouring their states was checked by the equal sharing of power in the Senate. This desire to check the power and dominance of larger states was taken one step further with the Electoral College.
How the EC works
A Presidential Election has taken place every four years since 1788 on the [EDIT: first Tuesday after the first Monday] in November (although the very first election took place over a 3 week period). Each state is awarded Electoral College votes based on the total size of its Congressional delegation comprising the number of its Representatives from the House and its two Senators. The number of Electoral votes varies from the largest being 55 from California (53 Congressmen + 2 Senators) to the seven smallest states (Vermont, Delaware, Wyoming, Montana, Alaska, North and South Dakota) with 3 comprising their sole Congressman and 2 Senators. The House of Representatives has 435 Members and the Senate has 100 Senators making 535 plus the 3 electoral votes allocated to the District of Columbia making a total of 538 electoral votes. Apart from Nebraska and Maine (who award their 3 and 2 House electoral votes respectively according the winner of the popular vote in each Congressional District in the state with the overall winner taking the 2 Senate votes), the Presidential candidate that wins a simple plurality of votes in each state becomes the winner of ALL that state’s electoral college votes. The winning candidate does not have to win 50% + 1 so the presence in many states of third party candidates such as from the Libertarian and Green Parties means almost every winner of the popular vote at the state level does not win a majority of votes, merely a plurality. After the Presidential election on November, the election of President is not formalised until a:
Two step certification process
1 – The electors from each state meet on the first Wednesday after the second Monday in December (this election it is December 14th) to formally cast their ballots for President. These meetings are held only at the state level and usually in each State’s Capitol building. Presidential electors are normally senior party officials and local office holders such as county or city party chair people. Each party that has managed to get their candidate on a state ballot (a difficult feat and one that most minor parties do not achieve saving resources to list their candidate only on the more populous states’ ballots) must also furnish a list of electors. In fact, in years past when you voted for President, whatever party you were registered with, the poll workers would give you a list of the names of your party’s electors in your state along with your ballot paper. Nowadays, that information is readily accessed at each state’s election office websites.
2 – The results are then endorsed and copies are sent to the sitting Vice President (in his capacity as President of the Senate); the Secretary of State of each state; the Archivist of the United States; and the judge of the Federal District Court of the district in which the electors met. The state by state vote must then be formally counted and certified by a special joint session of Congress which always meets on January 6. The votes are opened by the Vice President as President of the Senate in alphabetical order of the states and they are counted by four tellers (two appointment by each House of Congress). The candidate that has 270 or more Electoral College votes is deemed the formal winner of the election by the Vice President. In the case of the 2016 election, if Trump’s lead of 13,000 votes in Michigan holds up under the current recount, the total Electoral College votes will be Trump 306 and Clinton 232.
To outsiders it seems an arcane system and to supporters of Clinton it seems unfair. After the narrow Bush 43 win in 2000, calls to abolish the Electoral College grew and the size of Clinton’s popular vote margin is so large that calls are and will continue to be loud. The reality is that, notwithstanding some insistent media commentary and pressure group support, the only way to change the system would be via a Constitutional amendment. To pass a Constitutional amendment to abolish the Electoral College and elect the President by the popular vote would require both Houses of Congress to pass the amendment by a 2/3rds majority. Given that the Republicans control both Houses of Congress, the likelihood of an amendment getting passed by this Congress is next to nil. Even if Congress did pass the amendment, it must be then ratified by a 2/3rds majority of 75% of both of the legislatures in all the States. Given that the Republicans have majority control of 68 out of 98 partisan state legislatures (Nebraska has only one chamber that is constitutionally mandated as nonpartisan), that’s an even taller order than passing the amendment in Congress.
New Zealand comparison
What would happen if America did switch to a popular vote Presidential election system? The best way to describe what would happen is to look at what happened to election campaigning in New Zealand when we switched from First Past the Post (FPP) to MMP. In the days of FPP, the government of the day was decided by a relatively small number of votes in a handful of marginal seats. These were usually middle class suburban city electorates like Mt Eden in Auckland, Upper Hutt in Wellington and Lyttelton in Christchurch and provincial cities like Invercargill, Nelson and Rotorua. Campaigning efforts were concentrated heavily in the marginal seats and little to no election activity at the grassroots level was done in the Labour strongholds in the older working class urban suburbs or in National’s safe seats in rural NZ or the wealthier parts of the larger cities. If you were a Labour voter in Pahiatua or a National voter in Petone your vote was never going to change the government. However in 1978 and in 1981, partly due to the large third party vote for Social Credit, the Muldoon-led National Government was re-elected both times with fewer total nationwide votes than the opposition Labour Party by winning more electorates. This is because Labour ran up massive majorities in its urban strongholds and National won a raft of marginal seats across the country with very slender majorities.
MMP suddenly made all votes across New Zealand equal in power when the nationwide party vote became the decider of the government. This meant that campaign resources in the MMP era are targeted at the vote rich cities. The campaign schedules of the major party leaders are now more heavily weighted to Auckland, Wellington, Christchurch, Hamilton, the Hawke’s Bay, Tauranga and Dunedin. Under FPP, the marginal provincial towns were always on the party leaders’ itineraries.
How US elections are fought
US Presidential elections are fought just like the FPP elections used to be fought in NZ. The so-called battleground or swing states are their equivalent of our old marginal seats and they receive a disproportionate amount of media advertising, on-the-ground GOTV canvassing efforts and large party leader rallies. Presidential elections for decades now have been decided in states like Ohio, Florida, North Carolina, Nevada, New Hampshire, Indiana and Virginia. In reliably Republican states like Texas and Nebraska, the Democrat national campaigns commit few if any resources to the Presidential campaign. Likewise, the GOP spend almost nothing in California or Maryland because of the lopsided Democrat vote. In this election, Clinton managed to rack up huge wins in states like California, New York and Illinois that the Democrats were always going to win whereas Trump won most key battlegrounds states and the three unexpected Rust Belt reliably (until now) Democrat states (Pennsylvania, Michigan and Wisconsin and nearly Minnesota) and all (except Ohio) were won by relatively narrow margins. The Republican vote was, like National’s vote in the 1978 and 1981 elections, spread wider and thinner and in the states where it counted.
Effect of EC abolition
It is very easy to say that Clinton would be President if the national popular vote was the determiner. But if the Constitution was amended and the Electoral College was abolished, an entirely different campaign would’ve been waged. Both candidates would’ve concentrated their efforts in America’s 15 largest urban areas (New York City, Los Angeles, Chicago, Washington DC, San Francisco, Boston, Philadelphia, Dallas–Fort Worth, Houston, Miami, Detroit, Atlanta, the I – 4 corridor of Tampa/Orlando and Phoenix). Of these 15 metro areas, under the current system, only 6 of these cities were visited by Trump and Clinton while they were campaigning. The largest 10 states (CA, TX, FL, NY, IL, PA, OH, GA, NC and MI) would dominate the rest of the country and these states would get a disproportionate amount of candidate campaign visits and media advertising. 3 of the 4 largest states vote heavily Democrat and many Republicans in those states stay home as they feel their votes are futile. How much larger would the GOP turnout have been had Trump campaigned heavily in each of those big Democrat states? In other words, we have no idea what the election result would be if campaigns suddenly became only a national popular vote race.
The American political system seems chaotic and arcane to many outsiders. The sheer bewildering array of differing electoral laws alone is mind boggling. The vast sums of money spent beggar belief. The bruising aggression of the candidates’ rhetoric and the vicious negative media advertising is far beyond what occurs in other first world democracies. The constitutionally mandated division of power often leads to gridlocked government and the deep politicisation of the bureaucracy is foreign to our Westminster system sensibilities. The feisty and ideologically combative war waged by opposing left and right media is not seen in any other nation except for the robust press in the UK. The filtering layer of the Electoral College was designed as part of a suite of constitutional bulwarks to enshrine the power of the states over the Federal Government and the independence of the states is as woven into the political and cultural DNA of America as any other of their institutions such as the 4th of July, baseball and Thanksgiving! Changing it would require a revolution the likes of which has not been seen since the Emancipation Proclamation and the 14th Amendment to end slavery in the 1860’s. Frankly, very few people in America are exercised about the electoral system enough to see such a revolution notwithstanding the large popular vote lead Hillary Clinton has amassed.