Thursday, December 01, 2016

Electoral college should ignore Lessig

Reading this exchange between law profs disappoints me. [1] [2] [3] [4] [5]

The decision Bush v Gore cites the same principle as Lessig, that our system is based on "one person one vote". But it uses that argument to explain why votes should not be changed once they are cast:
Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.
Lessig cites the principle of "one person one vote", but in a new and novel way. He applies in an arbitrary way that devalues some of the votes that have already been cast. Specifically, he claims that votes cast for state electors should now be re-valued as direct votes for a candidate.

The United States isn't a union of people. It's a union of states. It says so right in the name. Compromises between the power of the states and power of the people have been with us for forever. That's why states get two Senators regardless of size, but Representatives to the House are assigned proportional to population. The Presidential election is expressly a related compromise, assigning the number of electors to a state equal to the number of Senators plus Representatives.

The Constitution doesn't even say electors should be chosen using a vote. It's up to the states to decide. All states have chosen election, but they could've demanded a wrestling match or juggling contest instead. The point is that the Constitution, historical papers, and 200 years of history rejects Lessig's idea that the President should be elected with a popular vote.

Moreover, this election shows the value of election by states. The tension nowadays is between big urban areas and rural areas. In the city, when workers lose their jobs due to immigration or trade, they can go down the street and get another job. In a rural area, when the factory shuts down, the town is devastated, and there are no other jobs to be had. The benefits of free trade are such that even Trump can't roll them back -- but as a nation we need to address the disproportionate impact changes have on rural communities. That rural communities can defend their interests is exactly why our Constitution is the way it is -- and why the President isn't chosen with a popular vote.

Hillary did not win the popular vote. No popular vote was held. Instead, we had state-by-state votes for electors. It's implausible that the per-candidate votes would have been the same had this been a popular vote. Candidates would have spent their time and money campaigning across the entire country instead of just battleground states. Voters would have different motivations on which candidates to choose and on whether they should abstain. There is nothing more clearly "disparate and arbitrary" treatment of votes than claiming a your vote for an elector  (or abstention) will now instead be treated as a national vote for the candidate.

Hillary got only 48% of the vote, what we call a plurality. Counting abstentions, that's only 26% of the vote. The rules of the Electoral College demands the winner get an absolute majority, meaning 50% even with abstentions, or almost double what Hillary got in votes. So among the arbitrary rules that Lessig has pulled out of his hat is that a plurality is now sufficient. Even though 74% of voters did not vote for her, Lessig uses the principle of "one person one vote" means she is the unambiguous choice of the people.

Even if you accept all this, there is still the problem that our election system isn't accurate. As Bush v Gore noted, around 2% of ballots nationwide didn't clearly show a choice between a presidential candidate. Others have pointed to weather in different parts of the country as having a significant impact on voter turnout. In science, we call this a measurement error. It means that any vote within 2% is scientifically a tie. That's more than the difference between Hillary and Trump. Yes, elections must still choose a winner despite a tie. However, an Electoral College evaluating the "sense of the people" (as Lessig cites Federalist #68) is bound by no such limitation. That they see no clear winner among the popular vote is best view to take -- not that Hillary won some sort of mandate.

My point isn't to show that Lessig is wrong so much to show that his argument is arbitrary. Had the positions been reversed, with Hillary getting the electoral vote and Trump the popular, Lessig could cite the same principle of "one person one vote" and the same "Federalist #68" in order to demonstrate why the Electoral College should still choose Hillary. In other words, Lessig would argue that the principle means (as in Bush v Gore) that Hillary's electors not devalue the votes cast for them by treating them as popular vote. Lessig would argue that since Trump didn't get a statistically significant absolute majority, then there was no clear "sense of the people".

America is in danger of populism, which ravages our institutions that make our country prosperous, stable, and "great". Trump is populist on the right, but Lessig is a populist on the left. Lessig ran for the presidency on the left on a platform no less populist than Trump's. This current piece, demanding we follow arbitrary rules to get desired results, is no less an attack on the institution of the "Rule of Law" and "Equal Protection" than Trump's attacks.

What "should" the Electoral College do? Whatever the heck they want. I would point out that Federalist #68 does warn about the influence of "foreign powers" and of men using the "little arts of popularity" to gain the Presidency. This matches Trump accurately. I would hope that at least some Trump-electors consider this and change their votes. Historically, that we haven't seen more electors change their votes seems to be a bit of a problem.


Dan said...

Is it possible to get an RSS feed for your blog consisting only of things related to "Advanced persistent cybersecurity"?

Patrick Perry said...

Just like with a bad television show, you can always exercise the freedom to change the channel. Or you could bitch about someone articulating their views on their own blog.

Jon said...

I clicked through the rss to read what I hoped would be a reasoned perspective from a seasoned thinker. This seems to be what I was expecting. Thanks, Robert.

Jim C said...

It doesn't take long to look at the title of one of these posts to determine the likely content. Although there are often insights and ways of phrasing things in all of Robert's writings that are worth reading, even if on the face of things you aren't interested in the main subject.

vanja said...

I agree that the electoral college should not choose Clinton just because she won the electoral vote. As you said, that would be changing the value of votes after they were cast.

However, you also threw in an argument about this election showing the values of the electoral college, because it weighs rural areas more heavily. This may seem to work out that way, but the design of the electoral college is not sufficient for that. Currently, it weighs the votes of New Orleans residents more heavily than the votes of rural New Yorkers. It also weighs the votes of swing state votes much more heavily than the votes of other voters. Also see

Finally, you have made many claims about Lessig on your blog, but I have never seen an explanation for them. I am genuinely curious about the explanation.

James A. Cox said...

There are at least two big errors in this post.

First, the United States is not a union of states. It is a government directly derived from the people. That is why our Constitution begins "We the people..." not "We the states." The Articles of Confederation, which predated the Constitution, were a union of states but proved unworkable as a result and were replaced with a true national government. The fact that there were compromises such as the composition of the Senate and the Electoral College that preserve state prerogatives does not actually change the character of the nation.

Second, the people voting actually did vote for candidates like HRC and DJT, not for electors. Perhaps you noticed this yourself on your ballot (did you vote?). Electors get involved because the laws in most states direct their electors typically require the electors (who are selected by slate in a separate process) to vote in the Electoral College for the candidate who got the most votes in their state.

You always have an interesting viewpoint, Robert, but sometimes your legal and and political comments are not as informed as, well, your security-related comments.

Suzanne Stauffer said...

In addition to what Cox stated above, I refer you to the 14th Amendment. We are citizens of the country before we are citizens of a state. As for the original intent, you overlook the fact that there is no limit in the constitution to the number of representatives that a state can have, and hence no limit on the number of electors. That rather undermines the claim that a primary purpose of the Electoral College was to weight smaller states more heavily. The limit was not imposed until 1929.