William H. Hurd is an American Opportunity board member and a known quantity in Virginia for his erudition and a steady hand. Having served as an elector in 1992, Mr. Hurd's insights on the value and the traditions of the Electoral College are well worth considering. What follows is a December 3rd, 2016 op-ed defending the institution the day before the electors went to vote on the next President of the United States.
Tomorrow, the electors chosen by each state will meet in their respective state capitals and formally elect Donald Trump as the next president of the United States.
Some supporters of Hilary Clinton are distressed by the fact that their candidate won the popular vote, but lost the election. They say that, given her popular majority, she should be president. Some are calling for a constitutional amendment to abolish the electoral system, and outgoing Sen. Barbara Boxer (D-Cal.) has introduced legislation to propose such an amendment.
Their disappointment is understandable, but their protests are misplaced. To begin, there is no way of knowing who would have won if the popular vote determined the outcome. Campaigns are organized, issues emphasized, and resources deployed based on the rules as they exist at the time of the election. Change the rules, and many other things change as well.
If popular votes elected the president, we would have seen two campaigns markedly different from the ones these candidates actually ran. The high priority given to swing states would have disappeared. For both candidates, persuading undecided voters and driving up voter turnout would have been important in every state. We can only speculate on the results.
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What about next time? Should we amend the Constitution, abolish the electoral system and make only the popular vote count?
Opponents of the current system say there is no longer any need for electors. Like the mayflies of summer that live for only a day, these officials assemble one morning in mid-December, cast their state's votes, and are seen no more.
Opponents say the electors should not be making any decisions about who should be president; it is the voters who should decide. On this point, there is no disagreement.
In today's world, electors serve little purpose and could create the possibility of mischief, if they are unfaithful to the candidate to whom they are pledged. But we should not confuse the office of elector with electoral votes. We could abolish the former while keeping the latter. The electoral votes held by each state could be cast automatically when the results in the state are finalized.
Unfortunately, most opponents of the current electoral system want to abolish electoral votes as well as the office. That is a bad idea.
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As a pragmatic matter, voting for president on a state-by-state basis, as we do now, sharply reduces the need for citizens in one state to worry about how the election is being handled in another state.
Whether it is overly-lenient early voting rules, overly-restrictive voter ID laws, or rumors of voter fraud, the effects of voting practices we find troublesome in other states are largely stopped at the state boundary. In large measure, each state can run the presidential election in the way it chooses, without worrying about whether its citizens are being disadvantaged by what is happening in other parts of the country.
But, if electoral votes were abolished and only the popular vote mattered, then every state would need to worry a great deal about how the election is being run elsewhere.
For example, so long as the votes in Virginia are not weighed directly against the votes in Florida, it does not matter so much that citizens in the Sunshine State have weeks to cast their ballots, while in the Old Dominion, barring special circumstances, citizens can only vote on Election Day. But, if state boundaries were erased and the Virginia and Florida votes were counted together, all that would change. There would be a need for nationwide uniformity in voting rules, and there is no guarantee whose set of rules Congress would enact.
And, what if the election were really close, as it was in 2000, when Bush and Gore were separated nationally by about one-half of one percent of the popular vote? Having represented candidates in three statewide recounts, I am concerned that a nationwide recount would be a real nightmare, virtually impossible to carry out in a way that promoted confidence in the outcome. For a myriad of reasons, a decentralized election system is far more practical.
There is also the matter of principle. The United States has never been a single, homogenous country. We have always been diverse. Much of that diversity is reflected in the differences among the many political communities - the states - that form our union. California is a very different place than North Carolina, and New York is very different than Nebraska.
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To elect our president by voting as states - and not as a single, undifferentiated mass - recognizes and respects that diversity. That is one reason our Founders created the electoral system, assigning to each state two electoral votes reflecting its equal status as a state, plus a number of additional votes based on the size of its population.
Today, the system still helps ensure that smaller states have a meaningful voice. In fact, based on the last census, most states would lose influence if electoral votes were abandoned in favor of a popular vote system. Moreover, the electoral system forces candidates to strive for a consensus among the people of many states, not just a majority in numbers based on the large West Coast and Northeast populations that often differ so markedly from the American heartland.
This is not just a theoretical concern, as the 2016 election map demonstrates. Trump won by forging a broad consensus encompassing most of the Midwest, South, and West (excluding, of course, the Pacific Coast). A candidate who can achieve that feat is more representative of our diverse nation than one whose support is drawn mainly from the regions that remain.
It is, our course, disheartening - and, perhaps, not entirely fair - to see the other side's candidate carry your State narrowly, yet win all of the State's electoral votes. But states already have the option to allocate their electoral votes proportionately. Maine and Nebraska do so now, assigning one vote to each congressional district and reserving two for the state at-large. Other states may wish to follow their example.
Electoral voting has worked well for our Republic, fostering consensus as well as confidence in the accuracy of the election results. It is something we should keep.
William H. Hurd is a former member of the Electoral College in Virginia (1992) and was the first solicitor general of Virginia. He is now a partner at Troutman Sanders LLP, where his practice includes appellate law and election law.
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