There Are Many Ways to Reform the Electoral College Without Repealing It

So much ink, both digital and otherwise, has been spilled since the election debating the merits of the Electoral College that I won’t bother rehashing old arguments here, beyond simply stating that I believe the institution is an ingenious way of furthering the goals of federalism, separation of powers, and the equality of all people and states that are at the very heart of the Constitution. But what I do want to do is briefly make the case that, for all the liberals’ talk of repealing the Electoral College, there are a number of ways to reform the system without violating either the Constitution itself or the Framers’ original intent.

It’s first worth looking at the relevant sections of the Constitution that establish the Electoral College. Article II, Section 1, Clause 2:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a  Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” (Emphasis added.)

And Article II, Section 1, Clause 4:

“The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

The key is that every single state has the discretion, under the Constitution, to award electoral votes in whatever way that state sees fit. The complaints from liberals today (other than whining that the system is racist and Hillary won the popular vote) seems to be that in nearly all of the major swing states, Trump won by only a point or less, and yet won all of the electoral votes from those states. For instance, Trump won Pennsylvania by just over one percentage point—and yet won all twenty of the state’s votes in the Electoral College.

But there’s no requirement that states use a winner-take-all system. Nebraska and Maine are currently the only two states that don’t, awarding two votes to the statewide winner, and an additional vote to the winner of each of their Congressional districts (Nebraska split its votes in 2008, giving one vote from the Second District to Barack Obama, and Maine similarly gave one vote to Donald Trump this year). Republicans proposed that very system for Pennsylvania several years ago, back when the state was still considered an integral part of the “Blue Wall”, but Democrats quickly shot it down.

Or if that system isn’t to liberals liking, they could try a different kind of proportional system, where the number of electors a candidate wins in a given state directly relates to the percentage of the vote they receive in that state. This is a favored method of awarding delegates in both parties’ presidential primaries—for example, in the Iowa Republican caucuses, Ted Cruz won narrowly and received eight delegates. Donald Trump and Marco Rubio were close behind, and each earned seven delegates, and so on down to Jeb Bush’s one delegate. What’s to stop the adoption of a similar system for the general election?

The only real limits to the methods of reforming the Electoral College are the Constitution (states can’t restrict voting to just men or just women) and imagination. And there are a multitude of potential changes that could be made that I haven’t discussed here and are just waiting for their time to shine (although I imagine that the party currently pushing for a national popular vote would not embrace the notion of state legislatures selecting electors without any public vote at all, although that too is both allowed under the Constitution and has historical precedent).

I personally am a fan of the current winner-take-all system. As I said, it strengthens federalism, makes campaigning logistically easier, and gives focus to more local issues that otherwise wouldn’t receive a great deal of attention (think ethanol in Iowa). But states are the laboratories of democracy. Be creative! There are plenty of options to reform the Electoral College without blowing up the whole Constitution.

Was 2016 A Realigning Election?

First, a primer: A realigning election, generally speaking, is one in which the country as a whole seems to dramatically shift in its political leanings. The media often talks about wave elections, where one party or another does significantly well across the board in certain years—as Democrats did in 2008, and Republicans did in 2010 and 2014. A realigning election is more significant than even that—an election that rewrites the electoral map, sees party coalitions change, and ushers in a new era of politics as it is generally understood. The 1860 election, which saw the election of Abraham Lincoln, the rise of the Republican Party, and ultimately the beginning of the Civil War, is generally considered to be such an election. The election of 1932, which heralded FDR’s election as President and the rebirth of the Democrats as the major liberal party in America, is another.

Sean Trende, a skeptic of the realignment theory, laid out what are generally considered to be the major hallmarks of realigning or critical elections, in his 2012 book The Lost Majority: “sharp and durable” voter changes; the emergence of new issues; spiking voter turnout; turmoil at conventions; and a strong third-party showing. The 2016 election indisputably had most, if not all, of these factors:

·         “Sharp and durable” voter changes: The relationship between working-class white voters and the Democratic Party has been increasingly strained for years, if not decades, but this year the tensions finally broke into the open, flipping three states (Wisconsin, Pennsylvania, and Michigan) that had been reliably blue at the presidential level since the 1980’s. Working-class whites are to Democrats now what Hispanics were to Republicans following the 2012 election. The changes in party coalitions this year, and the resultant changes in the electoral map, were sharp; only time will tell if they become durable.

·         Emergence of new issues: In 2016, trade became an important campaign issue for the first time since at least the 1990’s. Immigration was even more important, becoming perhaps the biggest defining issue in a campaign dominated by personal attacks. The traditional major issues of national campaigns, national security and the economy, meanwhile played no major, defining role for the first time in years.

·         Spiking voter turnout: This factor is less impressive. Turnout was down slightly from 2012 (from 54.9% to 54.6% of eligible voters), and overall was the lowest since 2000, presumably because of the nasty and seemingly never-ending campaign.

·         Turmoil at conventions: Um, yes. Trende argues that since the rise of the national primary process, and the concurrent decline in importance of the conventions themselves, extended primary battles are the best modern way to measure this factor. Either way, 2016 had it all: convention drama and brutal primary fights on both the Republican and Democratic sides.

·         Strong third-party showing: There was no single groundbreaking third-party candidacy, as in the mold of Ross Perot or George Wallace, but the third-party vote was far from dormant, as I discussed here. One third-party candidate got 20% of the vote in Utah, and had a very realistic chance at winning the state outright. Two others combined for almost six million votes between them, although neither came close to winning almost a single state. Polling showed that had a strong independent or third-party candidacy emerged, that person would have been a legitimate threat to win, no small feat in modern American politics. I would argue that these respectable showings from several less-than stellar third-party presidential candidates underline what could have been, if a single, stronger candidate had decided to take the plunge, and the failure of third parties to make more of an impact hinges more on the personal decisions of a very select group of people than on the political climate of the country as a whole.

By my estimate, the 2016 elections satisfy at least three, and possibly four, of the five main criteria for determining pivotal realigning elections. The question then becomes whether one believes in the overarching realignment theory, a subject much too broad for this post. But I find many of the arguments in favor of it compelling, if some proponents of the theory to go somewhat overboard in their attempts to ram every national election into a narrow framework of cycles and “deviating elections”. And if one accepts the overall theory, then the evidence seems clear that we have just witnessed such a realigning election.

Changes Since 1992: Wisconsin

Previously, I wrote about two states separated by hundreds of miles, Arkansas and West Virginia, which due to similar circumstances have experienced a dramatic shift from Democratic to Republican control over the past two decades. The voters at the heart of that shift are working-class whites, moderate Democratic-leaning voters for decades who feel marginalized by an increasingly urban, liberal national party.

But while those two states are perhaps most emblematic of the dramatic shift, the revenge of the working class can be felt in more subtle ways in other areas across the country—most notably Wisconsin, the state that before 2016 had last voted for a Republican presidential candidate in 1984.

Unlike West Virginia or Arkansas, where the shift was rapid and didn’t allow for much time as true battleground states, Wisconsin has generally been considered a presidential swing state for years, even though it ultimately would support the Democrat in the end. Here are the winning presidential margins of victory from 1992 on:

1992	1996	2000	2004	2008	2012	2016
Clinton +4.3	Clinton +10.3	Gore +0.2	Kerry +0.4	Obama +13.9	Obama +6.7	Trump +1.0

Over the past seven elections, the state has been decided by one percentage point or less four separate times. And in most, the winner’s margin of victory has been under ten points: Only Clinton in 1996 and Obama in 2008 managed to win a truly decisive victory, on their way to equally solid wins nationally. But in the end, Democrats always came through, in the state that birthed such progressive icons as Robert La Follette and Russ Feingold. Conventional wisdom held that the polls might be close, that the final result might be a nailbiter, but Wisconsin would always ultimately serve its role as the cornerstone of the electoral blue wall.

Clinton was so convinced that history would hold that she famously never visited the state during the general election. And, judging only by the public polls, her campaign had a point—the final RealClearPolitics average had her ahead by six and a half points. The argument that the polls were all wrong isn’t exactly true—in the end, they predicted a narrow Clinton victory, and what we got was a narrow Trump victory (with Clinton winning the national popular vote)—but one place they were clearly wrong was Wisconsin.

Maybe they should have paid more attention to state politics. In 1992, the state House of Representatives had a narrow 51-47 Democratic majority; today, Republicans hold a commanding 64-35 majority. Republicans had a 17-16 majority in the state Senate in 1992; today that majority is a more robust 20-12. And, in 1992, the two U.S. Senate seats were both held by Democrats, with Russ Feingold defeating incumbent Republican Bob Kasten by more than six points; in 2010, Feingold lost reelection by five points to Ron Johnson, and lost a rematch to Johnson this year by a little over three points.

These numbers might seem unremarkable after looking at the sudden shifts experienced in Arkansas and West Virginia over the same period. But unlike those states, whose residents tend to share many attitudes about a variety of cultural and economic issues, Wisconsin has always been a state deeply divided between conservative Republicans and liberal Democrats, and even a small change in the balance of power can have deep and lasting consequences.

After the election, Jim Geraghty at National Review posed an interesting rhetorical question, summing up the past six years of Wisconsin politics:

“…after a victory by Trump, two victories by Ron Johnson, three victories by Scott Walker, a persistent 5-3 split in favor of the GOP in the state’s Congressional delegation, and consistent GOP majorities in the state House and Senate since 2010, it seems fair to ask: Is Wisconsin now a red state?”

There was speculation, which turned into conventional wisdom, following the GOP’s 2010 successes in the state, that it was merely an outgrowth of momentary Tea Party anger, which would eventually fade away. Following Scott Walker’s victories in 2012 and 2014, this became a belief that only certain types of Republicans, like Walker himself, could win major statewide offices consistently. Now, following wins by Walker, Johnson, and Trump, all very different types of people, all within two years of each other, it is apparent that the conventional wisdom will have to change once more.

Unlike West Virginia and Arkansas, Wisconsin is not yet a state that has shifted convincingly from one party to another. I think it would be a mistake to consider it as anything other than a battleground at all levels, from presidential elections on down, at least for now. But at the very least, the days of Wisconsin being classified as a “blue-leaning swing state” are over, or should be. Wisconsinites have now shown a willingness to vote for Republicans of all different types, at every level. It is time for Democrats to accept the fact that Wisconsin is a true purple state, no different from Florida or Virginia—and they ignore working-class white voters at their peril, lest the Badger State become the Arkansas of the Midwest.

Changes Since 1992: West Virginia

Last week, I wrote about the rapid changes the state of Arkansas has undergone over the last two decades, shifting from a state in which Democrats could be expected to win virtually every statewide office, usually by double digits, into what is practically a different state altogether today—one in which Republicans now hold every statewide office, control a supermajority in the state legislature, and the GOP presidential candidate won 61% of the vote.

There is only one other state that has experienced a shift comparable to Arkansas’ over the same twenty-year period, and in the same direction. In the 1992 election, West Virginia voted for Bill Clinton by double digits, and Democrats had complete control of the Congressional delegation and nearly every other major elected office. Two decades later, similar to what happened in Arkansas, the roles of the two major parties in the state were reversed, and Republicans are now well on their way to becoming the dominant party.

The shift is still occurring at a different pace than that of Arkansas—Democrat Joe Manchin, who is pro-life, favors gun rights, and supports a constitutional Balanced Budget Amendment, won reelection to the Senate in 2012, and this year Democrat Jim Justice narrowly won a hard-fought gubernatorial race—while Donald Trump was carrying the state by more than forty points. But taken together, there is perhaps no better example of how Democrats have abandoned their former base of white, working class voters since Bill Clinton’s first presidential campaign than the twin states of Arkansas and West Virginia.

Looking at the shift in presidential results, the similarity between Arkansas and West Virginia is immediately apparent—and even more notable in the case of the latter, which unlike Arkansas has had no major public figure run for president in recent elections.

1992	1996	2000	2004	2008	2012	2016
Clinton +13.0	Clinton +14.3	Bush +6.3	Bush +12.9	McCain +13.1	Romney +26.8	Trump +42.2

I want to head off the inevitable racism argument, which many people would use to explain both West Virginia and Arkansas, which saw some of the most dramatic surges toward Republicans during the Obama years. But even a cursory look at the topline results show such arguments are full of holes. Why, then, was there such a large shift toward Republicans in 2000, despite all-white tickets on both sides? Why did McCain, running in 2008 against the man who would become the first black president, have a margin of victory in West Virginia almost identical to that of George W. Bush in 2004? Why did Trump, running against a white woman, best Mitt Romney’s showing against that same black president by sixteen points?

The answer, watered down in the interest of space, is that in states like Arkansas and West Virginia there are essentially two Democratic parties—the national, liberal party, which runs people like John Kerry and Barack Obama and Hillary Clinton for president; and the more conservative state party, of which people like Senator Joe Manchin and incoming governor Jim Justice are a part. The state party can get away with nominating people who are, while not Tea Party Republicans, significantly to the right of the national party, and more to the middle of the political spectrum overall. They establish themselves as trusted, independent voices.

But ticket-splitting has also become more rare over time, which is why there is often a lag time between when a state begins voting for the opposite party in national and statewide elections, but eventually the two indicators will begin to line up once more. Democrats can still win the governorship in West Virginia—but they have to fight for it now. The right Democrat can still win a Senate seat in the state—but it is becoming increasingly difficult for even a moderate Democrat to win. Secretary of State Natalie Tennant ran for an open Senate seat in 2014 with this ad as a hallmark of her campaign—and still lost to Republican Shelley Moore Capito by twenty-seven points. In 1992, Democrats controlled the State House of Representatives 79-21. Republicans now control it 63-37.

The national Democratic Party has so fully embraced its liberal, anti-coal, regulatory image that voters in once reliably blue states are beginning to reflexively vote against anyone who has even a whiff of association with them. And if Democrats are going to change, they’d better hurry before voters’ opinions are baked in for a generation or more. The clock is ticking in Michigan, Wisconsin, and Pennsylvania. In Arkansas and West Virginia, it may already be too late.

2016 Was The Perfect Storm For Trump

It was often wondered during the election, especially by many in #NeverTrump, by how much Ted Cruz or Marco Rubio would be leading in the polls at any given moment. This mainly stemmed from the fact that many of us were convinced that Trump would lose to Clinton in the end, probably in a landslide, and was a natural daydream to have about “what might have been”.

But Trump won after all. And the natural next question becomes, If he won, could any of those sixteen other Republicans also beat Clinton? Or was Trump unique?

I think the answer is complicated. On the one hand, the evidence—Trump’s unique appeal to working-class white voters, his rhetoric and policy positions on trade and immigration, etc.—and my own gut feeling tell me that more than likely, only Trump could have won, with the map as it ultimately appeared. Only Trump could have picked up enough working-class voters to win Michigan, Wisconsin, and Pennsylvania, the three states that put him over the top, while also taking the more traditional battlegrounds of Ohio and Florida and holding the Republican South.

But this observation also comes with the reminder that there was more than one path to victory, for Trump or any Republican candidate. Obviously these scenarios will remain forever unproven, but I believe that Rubio could have held the traditional Republican states (those that voted for Mitt Romney in 2012), carried Florida, North Carolina, Ohio, and perhaps Virginia, and also won Nevada and Colorado, while being competitive in Pennsylvania and New Mexico. Cruz would have had a narrower path, but against Clinton he too could have conceivably carried Florida, North Carolina, and Ohio, and made a play for either Wisconsin or Pennsylvania. That map, too, while offering a narrower path to the White House than Trump’s ultimately did, would still have counted as a win.

Or take Scott Walker as yet another example. Had he made it through the primaries and become the nominee, he too would have likely carried the Romney states, plus Florida, North Carolina, and Ohio, would likely have carried Wisconsin, and could have made a decent attempt at winning Nevada, Colorado, and Pennsylvania.

As I said, it’s safe to make these sorts of predictions after the fact, because we will likely never see a Cruz vs. Clinton or Walker vs. Clinton matchup in order to prove or disprove them (and if we do, and Hillary runs again, heaven help us). But my point is that all of the maps I just described would be well within the realm of possibility, which is as close to provability as we are likely to get. Hillary Clinton was fundamentally a weak candidate. Many of the Republicans who stood on that first debate stage last August could well have beaten her—just not in the same manner as Trump ultimately did.

It was a combination of many factors that led to Trump’s ultimate success. If he had run against a stronger Democratic nominee, one who could have appealed to the same base of working-class whites, Trump would have lost. If that base was not coming off of eight years of disappointment and resentment following Barack Obama’s two victories—who was initially supported by many Trump voters—he would have lost. If he had run against a smaller field of candidates in the primary, instead of the sixteen rivals who served to divide the vote enough so that, at least at the beginning, Trump could consistently win states with just 25 or 30% of the vote, he would have lost. In short, if he had run in any year other than 2016, Trump would not have even gotten close to the nomination.

This assertion does actually have some evidence to back it up. In 2012, when he was considering running for President, Trump’s name was included in some early primary polls. At first he did well, but his numbers soon tanked and he ultimately decided not to run. This year, everything had to align perfectly for him to win it all, and everything did.

We’ll see in 2020 whether those factors, combined with a new incumbency factor, line up once again for another Trump victory.

Changes Since 1992: Arkansas

This is the first of what will be a semi-regular series over the next few weeks, detailing the changes in party power in certain states since the 1992 elections.

“I was born in a little town called Hope, Arkansas,” begins an ad for Bill Clinton’s 1992 presidential campaign. The ad, like much of the campaign, played up Clinton’s history as a working-class Southerner and popular governor. In the end, Clinton won Arkansas by over seventeen points in the 1992 election, and by 16.9% in 1996.

Two decades later, his wife would lose the state, where she had been First Lady for a combined twelve years, by over twenty-six points.

Arkansas’ swing from a Democratic stronghold to reliably Republican has been one of the most dramatic in the country over the past several decades, in either direction. The South as a whole has been trending toward the GOP since at least the 1960’s, but Arkansas is unique. It still saw reasonably close races at the presidential level through 2000, had a Democratic governor and two Democratic Senators as recently as 2010, and only gave Republicans narrow control of the state legislature in 2012, for the first time since Reconstruction.

Just look at the swing in presidential results in the state, from 1992 to 2016:

1992	1996	2000	2004	2008	2012	2016
Clinton +17.7	Clinton +16.9	Bush +5.4	Bush +9.7	McCain +19.1	Romney +23.7	Trump +26.6

But of the equation is of course the rapid shift of the South as a whole toward Republicans, a shift which has essentially been finalized during the Bush and Obama years. In that sense, Arkansas is a microcosm of the entire region.

But even compared to election results from neighboring states over the same time period, the rate of change in Arkansas is staggering. Bill Clinton won Kentucky by three points in 1992 and less than one in 1996; four years later, the state went for George W. Bush by double digits and never looked back. Clinton lost Mississippi to the Republican nominee in both 1992 and 1996; in 2000, Bush won by seventeen points there and the Republican margin of victory has stayed fairly constant ever since. But the GOP’s growth in Arkansas shows no sign of slowing down or stabilizing.

Clinton’s status as a “favorite son” in 1992 and 1996 certainly account for some of these noted shifts. But one would think that at least some of those benefits would rub off on his wife, perhaps causing her to lose by a smaller margin. Instead, she did several points worse than Barack Obama, himself wildly unpopular in the Natural State.

And the rapid shift toward Republicans is glaringly obvious in far more than just presidential contests. Below are three more sets of election results for the state, since 1992: U.S. Senate, U.S. House, and Governor. With all of them, the shifts are rapid and stunning.

Arkansas Senate Seat, Class 2:

1996	2002	2008	2014
Hutchinson +5.4	Pryor +7.8	Pryor +59.0	Cotton +17.0

Arkansas Senate Seat, Class 3:

1992	1998	2004	2010	2016
Bumpers +20.4	Lincoln +12.9	Lincoln +12.0	Boozman +21.1	Boozman +23.6

Party Composition of U.S. House Delegation, Arkansas:

1992	1994	1996	1998	2000	2002	2004
Split (2-2)	Split (2-2)	Split (2-2)	Split (2-2)	Democrats (3-1)	Democrats (3-1)	Democrats (3-1)

2006	2008	2010	2012	2014	2016
Democrats (3-1)	Democrats (3-1)	Republicans (3-1)	Republicans (4-0)	Republicans (4-0)	Republicans (4-0)

Arkansas Governor:

1994	1998	2002	2006	2010	2014
Tucker +19.2	Huckabee +21.1	Huckabee +7.0	Beebe +14.3	Beebe +30.9	Hutchinson +13.9

A special irony for Republicans to enjoy is the fact that Asa Hutchinson, the state’s current governor, is a former U.S. Representative who in 1998 was key in prosecuting the case for the impeachment of then-President Bill Clinton—an Arkansas native and former governor. A microcosm of how dramatically the state has changed over the past twenty years.

I didn’t include full charts showing shifts in state attorney general and state legislature races, in the interest of space, but they tell the same story—an 88-11 margin in favor of Democrats in the state House following the 1992 elections, compared to a 73-27 Republican majority after the 2016 elections.

And, if the recent past is any indication, the best days for Arkansas Republicans may still be ahead.

The Third-Party Vote in 2016

One of the less-noted surprises of 2016, for me, was the lack of any major third-party presidential effort, one led by a national figure whose focus was not just to serve as a protest vote, but to actually win the presidency. There were rumblings from the moment that it began to seem likely that Trump would win the Republican nomination, that someone like Mitt Romney or Tom Coburn, a former or current officeholder, would emerge to appeal to the sizable bloc of voters dissatisfied with both Trump and Clinton. Rumors that Romney was considering the move, and an early poll showing Romney earning over 20% of the vote in a hypothetical three-way matchup, further fueled speculation.

Of course, nothing ultimately came of the rumors, and no well-known figures challenged Clinton and Trump in the general election. The three main third-party candidates were the Libertarian Party’s Gary Johnson, the Green Party’s Jill Stein, and the independent Evan McMullin. (I previously wrote about third-party candidates in 2016 here, here, and here.)

In the end, none of the three made a significant impact on the race nationally in terms of raw vote totals, although all three performed better than is normal for third-party presidential candidates in recent history. Gary Johnson received around four and a half million votes, or 3.3% of the total, while Jill Stein received 1.4 million, or just over 1%. Evan McMullin got 608,000 votes (0.45%), many of which were concentrated in Utah and Idaho.

The state-by-state results are slightly more impressive. Johnson’s best three states were New Mexico, his home state, where he earned just over 9% of the vote; Alaska*, where he won 6%; and Montana, where he won 5.5%. Jill Stein only made it above 2% of the vote in one state (Hawaii, where she won 3%), but Evan McMullin earned 21% in Utah, only a few points behind Hillary Clinton. It seems as though Mike Pence’s last-minute pleading for Utah Republicans to come home did the trick in the end: Trump outperformed his average in the last few state polls before the election, while McMullin’s share dropped significantly from the same polls, costing him any shot at becoming the first independent candidate to win electoral votes since 1968.

It should also be noted that McMullin earned the highest percentage of votes in a single state since Ross Perot, and that Gary Johnson set an all-time record for number of votes received by a Libertarian presidential candidate (smashing his own record of one million votes in 2012).

What does all this mean? Third-party candidates’ shares of the popular vote may have dropped significantly from their polling numbers before the election, but that seems to speak more to the weakness of these particular candidates and the still-widespread belief among the electorate that a vote for anyone other than the Democrat or Republican is simply a vote wasted. To me, the numbers indicate that if someone with a wide national following, name recognition, and access to donors (like Mitt Romney) had ultimately waged an independent bid, they could have been victorious, or at least given Trump and Clinton a run for their money.

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*Alaska had another interesting third-party candidacy: Joe Miller, the Libertarian nominee for Senate, won almost 30% of the vote (amusingly, the Democratic nominee came in fourth). But this is a special case: Miller was actually the Republican nominee for the seat in 2010, beating incumbent Lisa Murkowski in the primary, but Murkowski came back as a write-in candidate in the general election and narrowly won reelection. As such, Miller has abnormally high name recognition in the state for a third-party candidate. (However, Gary Johnson also did very well in the state, and Alaska currently has an independent governor. Alaskans, like other Westerners, are notorious for their independent spirit.)