The protests following the 2016 Presidential Election express the frustration of many with the outcome, and various decisions in the early weeks of the new administration. But I worry that the electorate might forget the central role that the broken primary systems played in the election. The primaries of both parties (all parties) failed to attract the best candidates. And they have failed to gain legitimacy for the candidates selected. The problems are best illustrated by the such symptoms as not allowing Independent voters to participate in many primaries, and party officials putting their finger on the scales to favor insider candidates, the famous case of Representative Debbie Wasserman Schultz.
Over the last several decades, the vitality and legitimacy of the political parties have declined, while the significance of the parties has remained great. They are the major king and queen makers of the primary process. Ironically, as people desert the parties, the central committees of the parties become even more powerful as they are more removed from accountability to their dwindling rank and file.
If the Democrats had nominated a stronger candidate, with more favorable ratings among the voters, the outcome might have been different. If the Republicans had been able to vet candidates in ways that avoided a 16-candidate debate, with more left off the debate stage, then the party might have appointed a candidate with broader support within and beyond the party. For that matter, if the Green Party had some contests for its party leadership, it could well play a more meaningful role in the election and its aftermath.
So it is frustrating to believe that it is the primaries that need to be fixed, and soon, but that everyone is focused on expressing their dissatisfaction with the candidates. Focus on the process that got us here, not the personalities. Four years is a short time. Do something that will matter in the next two and four years. Fix the broken primaries.
It has been a long-standing joke that New Yorkers view most of the states that compose the United States as insignificant in relation to New York City. One of the famous images of this view was on the cover of the New Yorker in 1976. Well, it appears that the New York Times, in keeping with this myopic view of the USA, sees the Electoral College in an analogous way, leading it to conclude that the College is an anachronism – simply out of date and a less accurate representation of opinion that the national vote tally.
The editors seem to see the popular vote and the electoral vote as two indicators of the people’s will, with the electoral vote being less representative due to the weighting of state electoral votes by representation in Congress. They argue that the College is a vestige of slavery, but – news flash – the South did not win the war. And the editors worry that the College focuses attention on contests in ‘battleground states’, which are states in which the two major parties are most competitive. It is a shame (for the Times) that the lion’s share of the advertising dollars go to the media in the battleground states, but other than advertising revenues, winning the popular vote in states is the object of American Presidential elections.
The most basic point about the Electoral College is that it is anchored in the fact in these post-truth times that the United States is a federal system. The Electoral College is designed to support the principle of a federal system of government in which each state counts. So the rules are that the candidate that wins the popular vote in a state wins the electoral votes. This winner-take-all, state-by-state game punishes third parties, by not being a perfect reflection of the statewide popular vote, and ensuring that each state matters in the end, thus adhering to the federalist structure of the USA, where candidates should have an incentive to garner the support of all states. Our system rewards catch-all parties that cast a wide net and seek to appeal to voters across all states.
In my opinion, the New York Times doesn’t seem to understand the structure of American government, and the principles that underpin it. Instead, it takes a very utilitarian perspective based on the outcome of elections they did not like to argue that it is in every individual’s best interest to have a nationwide popular vote count to select the President and Vice President. That would certainly be in the interest of New York, California, and Texas, but not in the interest of most other states of our union. So the Times really does want to enshrine its myopic view of the United States into the rules of the most important game in America, the Presidential elections.
Rather than fighting the last election, it is important to keep more enduring principles in mind such as maintaining the decentralized and federal structure of the country. When you try to predict the electoral consequences of changing the rules of the game, such as would be the case with doing away with the Electoral College, you are inviting unintended and unanticipated consequences that unfold from changing a complex interdependent system. Most recently, urging Electors to vote their conscience a la Larry Lessig, led to more Electors defecting from Hillary Clinton than from Donald Trump. Not expected. So on the basis of principle and the inability to project the consequences of such changes in the electoral system, New Yorkers should not mess with the Electoral College.
In the aftermath of the 2016 Presidential elections, the shock of Donald Trump’s surprising win has generated a flurry of initiatives to turn back the clock and rerun or overturn the election, such as Jill Stein’s failed attempt to recount the ballots in a number of key states. The most worrisome efforts – to me – have been calls to overturn the Electoral College. This worries me for two reasons. First, most critiques misunderstand the fundamental importance of the federal structure of the USA. Secondly, Electoral College reform is a red herring, since the focus should be on reforming the primaries for all political parties.
Regarding the Electoral College, the United States of America was not designed as a unitary direct democracy. We are not living in some People’s Republic of America. We have a federal structure that created institutions such as the structure of elections for the Senate and the House of Representatives, and the Presidency that reinforced and maintained the significance of the States. It is the brilliance of these institutions that enabled the states to come together in a single united nation.
The Electoral College works to ensure that candidates for President are well advised to take into account all the states, and not only the most populous states, or for that matter, only the most populous urban areas and neglected rural and less populated areas of the country. It is true that candidates focus increasingly on the so-called ‘battle ground states’, where the vote count is expected to be closest, but all the states count at the end of the day. Direct elections, based only on the popular vote, could virtually disenfranchise many states. If you think many voters feel alienated by the results of the 2016 election, I would imagine many more alienated by direct popular votes that marginalize the voters in their states.
Take the 2016 election, for example, where Hillary Clinton won the nationwide popular vote by 2,833,220 votes. However, she won California alone by more – by 4,446, 281 votes. So if you called the election by popular vote alone, California would have disenfranchised all those red states on the map of the USA. But it is not the state totals, so much as the way in which popular votes would focus all candidates on the major urban areas, and to dismiss the rest of the country. So the Electoral College is not antiquated by the progress of democracy, but brilliant in reinforcing the USA as a federal system designed to keep all the states feeling included. The legitimacy of our institutions, such as elections, is more important than the outcome of any one election.
Even if you should want to reform the Electoral College, it would take a constitutional amendment and be ridiculously irrelevant to the 2016 Presidential election. Ergo, some otherwise reasonable people have argued that electors should exercise their right not to vote for the candidate chosen by their state electorates. I have followed debate over the Electoral College for decades and it has been discussed time and again with the one most concerning issue being that the electors in many states are not legally bound to vote for the candidate that their state sent them to elect. Books* have been written about the potential of these now called ‘faithless electors’ upsetting the results of the popular vote in states, but the possibility has been largely ignored by the realization that this would be inconceivable, tantamount to an elector determining that their judgment is better than the judgment of the voters in his or her state. Voters do not vote for a slate of electors to exercise their personal judgment as a trustee.
Yet highly respected public intellectuals, like Lawrence Lessig, are arguing that electors should do just that. I suspect it is an ends justifies the means argument. In my opinion, this would be a far greater blow to the democratic process of the USA than any election result imaginable. If you worry about the US being divided now, I cannot imagine what the reaction would be to set of Electors choosing to take the election in their own hands. Arguments that the interference of a ‘foreign power’ justifies such an action, citing allegations that that Russians hacked the members of the DNC and RNC, is ludicrous, as it is no more than a conspiracy theory before any evidence is provided. It does not take state of the art state sponsored cyber warfare to hack into John Pedesta’s email, since he was not cautious about his passwords etc. It also reflects the degree that those harmed by leaks routinely demonise the messengers, such as WikiLeaks, to deflect attention from the message. Did claims about Debbie Wasserman Schultz, the Clinton Foundation, or Russia throw the results? This is one of many debates flourishing in hindsight.
That said, the most important concern I have is that fishing for some constitutional fix to the 2016 election is a red herring. The real problem has been the dysfunctional primary elections orchestrated by all political parties. The most significant fact of this past election is that the major parties nominated candidates that had high unfavorablity ratings. Whichever candidate had won, many voters would have been upset. Could something be wrong with the ways in which the political parties choose their candidates for office? Yes, this is blindingly obvious.
There are many symptoms of this. The parties have been declining for at least the past two decades, while partisanship remains strong, such as in the degree people vote on the basis of their partisan identification. So a shrinking, less trusted, but increasingly powerful group of party members organize the primaries, and do so quite poorly. This is a problem, illustrated by the exposure of favoritism by the head of the Democratic National Committee (DNC), Rep. Debbie Wasserman Schultz, having her ‘finger on the scales’ (to put it in the kindest way possible) from the earliest days for Hillary Clinton, and against Bernie Sanders. Thanks to WikiLeaks, we know about this tilting of the playing field.
This led to her resignation, but did not prevent her re-election to the House, and it does not correct the fundamental problem with how to hold a fair and successful primary that recruits the best talent to enter the primaries.
Another key problem with the primaries, tied to the decline in party membership, is the failure of many states to let independent voters participate in the primaries. The contest between Bernie Sanders and Hillary Clinton was clearly shaped by which states did or did not allow independents to vote in the Democratic Primary, with Senator Sanders doing far better among independents, who were not registered Democrats.
All parties seem to have failed to organize primaries that encouraged the most talented individuals to put their hat in the ring and compete on a level playing field. The fact that the Green Party candidate, Jill Stein, received about 1% of the vote, but remains the head of the Green Party, is an illustration of these problems continuing even in the marginal parties. What are they thinking?
It does not take a Constitutional Amendment to reform the primaries across the USA. And meaningful reform could be done within the coming four years. Instead of fighting the last election, and focusing on red herrings, and impossible reforms, those upset by the election process should focus on the primaries. The party primaries need to be reformed, and they can be reformed.
Have elementary schools stopped teaching basic civics? The number of pundits that seem not to have a clue about the federal structure of our nation, and the rationale behind the Electoral College, is amazing. But you don’t need to be a political scientist to see the real problems of our primary systems within each of our major parties. This should be the focus of reform.
[Postscript: It happened. Faithless Electors emerged. Two electors were faithless to Donald Trump, and 5 were faithless to Hillary Clinton. This made no difference to the outcome, defied expectations of defections benefitting Hillary Clinton (no ‘revolt’ against Trump), and raised questions about trusting Electors in the future, as this was the first time since 1948 that there has been more than one faithless elector.**]
*For example, Robert M. Hardaway (1994), The Electoral College and the Constitution: The Case for Preserving Federalism.
One of the classic works on the governance of England is Walter Bagehot’s (1867) The English Constitution. He observed that through the evolution of its unwritten Constitution entailed two critical but separate components, the ‘dignified’ and the ‘efficient’. The former exercised symbolic power and was represented by the monarch, who did not have effective power but could capture the imagination and support of the public. The efficient component was represented by Parliament and the Prime Minister, who had the power to effect change. The modern Prime Minister of Britain in the 21st century retains this role in getting the work of government done, but has also become more ‘presidential’ in the American sense, but embodying more of the symbolic roles of the state. Nevertheless, despite contention, a far more educated public, and access to information about anything everywhere, Queen Elizabeth remains the major symbolic head of state, helping to maintain the legitimacy of the government.
In the US, the founders had combined these dignified and effective components in the Office of the President. The US President represents the state in formal international ceremonies, such as in laying wreaths with the Queen or her representative, as well as being the chief executive and Commander of Chief on the nation’s military.
For decades, the preservation of the dignified role of the President as head of state has been a matter of debate. Television news was said to reveal so much about the President that it was impossible to maintain any myths about a President’s leadership (Meyrowitz 1985). Every foible, stumble, illness of a President is in the news for all to know. This transparency has a very positive role, such as undermining the potential for a president to become too powerful if shielded from the public accountability. However, it may also undermine the ability of the government to maintain the support and trust in the government that was delivered by the symbolic Chief of State.
It is obvious where I am going with this rendition of Bagehot’s perspective on the components of governance. Whomever you support for President, there must be some concern over whether the institution of the Presidency will be reduced dramatically by the revelations of the 2016 primaries and presidential campaigns. Will we, or have we, lost the dignified role of the Presidency? Maybe this is good and appropriate in a modern democratic state, but these trends are likely to generate far more discussion in the wake of the 2016 elections, whomever is elected. In whom will we entrust the dignified role of the Presidency? Perhaps this dignified role has been antiquated by modern forms of democratic governance, but the lack of trust in government, and the candidates for office, are likely to keep this debate alive.
Bagehot, W. (1867), The English Constitution.
Meyrowitz, J. (1985), No Sense of Place: The Impact of Electronic Media on Social Behavior. Oxford University Press.