Judge Richard Posner is an extremely well-respected and influential intellectual in a vast array of subjects. Which is why I’m just so sad that Posner is not getting the respect he deserves for the brilliant article he wrote for Slate yesterday, “In Defense of the Electoral College.”

Posner poses “five reasons for retaining the Electoral College despite its lack of democratic pedigree.” They’re all fantastic reasons, though I don’t understand the lack of democratic pedigree comment—the Electoral College is, of course, derived from the electoral college used by the Holy Roman Empire, which descended from the Roman Empire (it’s right there in the name!) which in turn modeled itself after ancient Greece--the inventor of democracy! Sounds like a pretty democratic pedigree to me.

But I digress. Here are his five reasons.

1) A dispute over the outcome of an Electoral College vote is possible—it happened in 2000—but it’s less likely than a dispute over the popular vote. 

I don’t know if this is true since it seems like a very complex mathematical problem that Posner dismisses casually, but I’ll assume it’s true since everyone seems to think Posner’s pretty smart.

A tie in the nationwide electoral vote is possible because the total number of votes—538—is an even number, but it is highly unlikely; it has not occurred since 1824.

Okay, this one’s definitely true: a tie in the Electoral College has not occurred since 1824. But since there wasn’t actually a tie in the Electoral College in 1824, Posner could have made his point stronger here—he could have said “it has not occurred since 1824, 1936, 1817, 2056, or (aside from a bit of an accident in 1800) since the first democratic election ever a couple thousand and a half years ago.

(note: Posner later unnecessarily corrected this true statement)

The losing candidate would have an incentive to seek a recount in the states in which he’d lost by only a small margin. So, for that matter, would the winner in states that he had lost or that he had won by only a small margin in order to shore up his overall vote total.

Again, Posner isn’t going far enough with his argument. Both the winning and losing candidate would have incentives to seek recounts in all states because every vote would matter. The votes in one state would be no more important than the votes in others. I’m sure this sounds as awful to you as it does to me.

2) A candidate with only regional appeal is unlikely to be a successful president. The residents of the other regions are likely to feel disfranchised—to feel that their votes do not count, that the new president will have no regard for their interests, that he really isn’t their president.

Oh jeez. I’m sobbing even considering the possibility about such a scenario. I mean just thinking of all those poor people *sniff* feeling disenfranchised…like their votes don’t matter…like the candidates don’t care about their interests…

We can never allow anyone to feel that way about presidential elections.

3) Voters in toss-up states are more likely to pay close attention to the campaign—to really listen to the competing candidates—knowing that they are going to decide the election. They are likely to be the most thoughtful voters, on average (and for the further reason that they will have received the most information and attention from the candidates), and the most thoughtful voters should be the ones to decide the election.

Yeah! Only swing state voters should feel like their votes matter! Because they’re better at voting! Everyone else should be effectively disenfranchised because they don’t see enough half-true attack ads to be able to decide thoughtfully whose attack ads are more half-true.

4) Other things being equal, a large state gets more attention from presidential candidates in a campaign than a small states does. And since presidents and senators are often presidential candidates, large states are likely to get additional consideration in appropriations and appointments from presidents and senators before as well as during campaigns, offsetting to some extent the effects of the malapportioned Senate on the political influence of less populous states.

Going back to what I said earlier, it is imperative that presidential candidates only care about the interests of a few states.

And Posner’s point about mitigating the problem of the disproportionate Senate is excellent. I would sum it up with one of my favorite axioms: “Two wrongs always make a right.”

5) The Electoral College avoids the problem of elections in which no candidate receives a majority of the votes cast…There is pressure for run-off elections when no candidate wins a majority of the votes cast; that pressure, which would greatly complicate the presidential election process, is reduced by the Electoral College, which invariably produces a clear winner.

Of course, the current system for elections in which no candidate receives a majority of electoral votes cast is not complicated at all—just a simple vote in the House of Representatives where each state gets a vote, not each representative, and there’s a possibility that state delegations could tie in the vote which could make the House speaker the acting president, and the Senate would choose the Vice President, although there would of course be the possibility of a filibuster which could extend the process indefinitely. So uncomplicated! 

Well, there you have it. Richard Posner closes yet another case. Winner-Take-All Electoral College: defended. 


08/27/2013 12:41am

The article “In Defense of the Electoral College.” by Judge Richard Posner was really a brilliant one in all respects. The five reasons you have said here are actually valid considering the situation. I hope the Electoral College survives!

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