Cortez has a point

Alexandria Ocasio-Cortez has a point about the Electoral College

Opinion by Robert M. Alexander

Freshmen House members Alexandria Ocasio-Cortez and Dan Crenshaw recently engaged in a Twitter dispute over the merits of the Electoral College. AOC, a Democrat, argued that the institution amounts to "electoral affirmative action" for rural voters. Crenshaw, who is a Republican, defended the body, stating that "we live in a republic, which means 51% of the population doesn't get to boss around the other 49%."

Yet, the Electoral College process can lead to outcomes where the 46% may look to boss around the remaining 54%. Recall that Donald Trump earned 46% of the vote in 2016 and lost the popular vote by nearly 3 million ballots. His victory marked the second time in the past five elections where the winner of the popular vote failed to ascend to the presidency.

Previously, I suggested that Trump's path to a second term would most likely come in the same fashion that his first term did -- an Electoral College victory and a popular vote loss. Recent analysis suggests that Trump could lose the popular vote by as many as 5 million votes, but still win the Electoral College.

Winning the electoral vote but losing the popular vote can complicate claims to legitimacy. Legitimacy is a key factor in any government. The belief that one has a right to their position is a deeply rooted feature for political stability. While it is established that the Electoral College is the process we use to determine who wins the presidency, how a president wins in the Electoral College matters in what they are able to accomplish.

Trump seems to realize this. He frequently points out that he would have campaigned differently if he wished to win the popular vote, rather than the electoral vote. He has also falsely claimed that without "voter fraud," he would have won the popular vote. Clearly, the stamp of voter approval across the country matters to him.

More misfires?

In spite of the claim that so-called "misfire elections" are infrequent, the winner of the Electoral College has failed to win the popular vote in 10% of all presidential elections. The elections of 1824, 1876, 1888, 2000, and 2016 are generally recognized as misfire elections. Yet close inspection of the election of 1960 suggests that John F. Kennedy's victory should also be included as a misfire, given the composition of Alabama's Electoral College delegation.

Recent demographic patterns suggest these outcomes may occur with even greater frequency in upcoming contests.

Misfire presidents arguably face their first major crisis before they even take the oath of office.

These presidents have not been judged very kindly in rankings of presidents by historians and political scientists. Most fall in the bottom half of all presidents who have served. Out of 43 presidents, John Q. Adams is ranked at 21, Benjamin Harrison is at 30, Rutherford Hayes is 32, and George W. Bush is at 33. Notably, Bush is the only misfire president to win re-election.

Although I believe it is too soon to assess the Trump presidency, early results are not flattering, with several lists ranking him among the very worst. His tenure has undoubtedly been controversial, with few legislative victories to his credit. He stands alone as the only president since Gallup began conducting polls to not crack at least 50% job approval.

So how is it that the Electoral College produces misfire presidents?

The selection of the president was one of the most confounding decisions the Framers faced. Notably, the Electoral College of today bears little resemblance to the one they devised in 1787. They viewed the electors as people who would exercise independent judgment and pick presidents who would be well suited to carry out the responsibilities of the office.

Popular selection of electors, the use of the winner-take-all method to award electoral votes, and elector loyalty were not prescribed by the Framers, but have become commonplace in presidential elections.

Not surprisingly, different rules yield different outcomes. Individual states are free to choose how they award electoral votes. All states except for Maine and Nebraska award their electoral votes on a winner-take-all basis. If a ticket wins a state by one vote, they receive all of the state's electoral votes. This can lead to some stark distortions between popular votes and electoral votes. Adding to these distortions is the fact that all states receive two electoral votes based on their representation in the Senate, regardless of their population. Theoretically this provides greater voting power to less populated states compared to more populated states.

In 2016, an electoral vote in Wyoming represented just under 200,000 citizens, while an electoral vote in California represented over 700,000 citizens.

It is rare when the popular vote and the electoral vote align with one another. For instance, there has been at least a 15% difference between the popular and the electoral vote in a majority of presidential elections. Most of the time, these distortions magnify the popular vote margin in the Electoral College. This effect is often cited as a benefit of the institution because it helps confer legitimacy to presidents selected in close popular votes but who attain relatively large Electoral College victories.

For instance, Bill Clinton won 43% of the vote in 1992, but earned 69% of the Electoral College vote. Yet distortions between the popular and electoral vote complicate legitimacy in misfire elections.

Abolish the Electoral College?

Recognizing Trump's seeming Electoral College advantage, many Democrats have endorsed abolishing the institution. In the past, Trump himself supported abolishing the body. Still, there is no chance of that happening before the election and it is unlikely to occur even if a Democrat wins in 2020. While the Electoral College is probably the most maligned institution created by the Framers, it has proven to be extremely resilient. This is largely due to the power of less populated states in the Senate.

Although the conventional wisdom is that Republicans are advantaged by the Electoral College process, it wasn't too long ago that they almost fell victim to a popular-electoral vote split. In 2004, had just over 1% of Ohio voters changed their minds, John Kerry would have earned 271 electoral votes and the presidency, while George W. Bush would have won the popular vote by nearly 3 million ballots.

Ironically, in advance of the election, the Bush team prepared to fight the Electoral College process, believing that they would be on the wrong end of a popular-electoral vote split.

What states can do

Remember how states are free to choose electors as they wish? It is changes at the state level that are most likely to alter the Electoral College in favor of a national vote. State legislatures from coast-to-coast have passed bills to join the National Popular Vote Interstate Compact (NPV) which is aimed to ensure the popular vote victor wins the Electoral College. The Compact is the brainchild of John Koza -- who also had a hand in inventing the scratch-off lottery ticket.

Proponents of the NPV have made great headway in their effort to change the Electoral College process. So much so that my book already needs a new edition. In the short time since I submitted it for typesetting (January, 2019) four new states (Colorado, Delaware, New Mexico, and Oregon) joined the compact, denoting 24 electoral votes. Two more states, Nevada and Maine, came very close to adopting the compact.

Today, 15 states and the District of Columbia are members, representing 196 of the 270 electoral votes required for it to go into effect. Many states continue to mull adoption. The NPV (and the Electoral College for that matter) continues to be controversial. For instance, voters in Colorado said they have collected over 200,000 signatures in an effort to place the state's membership in the compact directly to the voters in 2020, according to the Washington Post.

Opponents of the Electoral College are as close as they have been in a very long time to upending the institution. Although the NPV remains a long-shot, its focus on legitimacy and representation should be at the forefront of discussions regarding Electoral College reform. The Framers were deeply concerned about these concepts, but they ultimately chose a process rooted in compromise, rather than one based upon normative principles. More misfire elections will invite further questions of legitimacy and buoy efforts to reform the Electoral College.