How the US electoral system works… or doesn't work


How the US electoral system works… or doesn't work


Sunday, February 23, 2020

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The Democratic primary elections in the United States are on in earnest and are dominating media coverage. They started gathering momentum from early last year. It is a gruelling exercise. Four of the five front-runners are septuagenarians seeking to challenge another septuagenarian currently occupying the White House. One of them, Bernie Sanders, suffered a heart attack in October, shrugged it off and got back in the race. Knowing how exhausting a political campaign can be, I lift my hat to all of them.

The electoral system in the United States is very complex largely because it is a federation of semi-autonomous states. The constitution prescribes the framework for the election of the president but the actual process, including the primaries, is regulated by the laws enacted in each state and they differ from one state to another.

The Electoral College vs the popular vote

The framers of the constitution, convinced of the need to prevent small states from being overwhelmed by the larger ones, mandated that the president must be elected, not by popular vote, but by delegates from each state who make up the Electoral College. The Electoral College is comprised of 538 delegates equivalent in number to the combined total of members in both Houses of Congress plus three delegates representing the District of Columbia.

In most states, the delegates are required to cast their ballots on a “winner-take-all” basis for the candidate that won the popular vote in that state. However, two states Maine and Nebraska allow their delegates to split their votes among the winning candidates in each of their congressional districts.

There have been five instances dating back to 1824 in which the candidate who lost the popular vote emerged as president. Two of these occurred in recent times, the first being in 2000 when George W Bush became president although he received over 500,000 votes less than Al Gore. The second was in 2016 when Donald Trump received almost three million votes less than Hillary Clinton but went on to become president. This has reignited debate as to whether the Electoral College should be abolished in favour of the popular vote. Three of the leading Democratic contenders Sanders, Warren and Buttigieg have voiced their support for the idea.

Last year, two Democratic senators Brian Schatz and Jeff Merkley tabled Bills designed to scrap the Electoral College and have the president elected by popular vote. However, amending the constitution to do this is a tortuous process. It would first require approval by a two-thirds majority in both Houses of Congress, after which it would have to be approved by the legislature in at least 38 states. Not surprisingly, despite several attempts to amend the constitution on a variety of issues, only 10 have succeeded in the last century.

In recent times, there has emerged a different approach that relies on the power of each state to regulate its electoral process. Dubbed the “National Popular Vote Interstate Compact”, it seeks to have each state agree, to require by law, that its Electoral College delegates cast their votes for the presidential candidate who won the popular vote across all 50 states. It is an attempt to ensure a popularly elected president without having to amend the constitution.

The weakness in this proposal is that it subordinates the will of the voters in a state to that of the voters in all 50 states and undermines its influence. That is not likely to play well with the majority of states. It would lead to a situation where a state that voted overwhelmingly for one candidate would be obliged to cast its votes for another candidate who won the popular vote across all 50 states. So far, only 15 states as well as the District of Columbia all controlled by Democrats have adopted the proposal.

A better approach

An approach that may stand a better chance of succeeding is to do away with the “winner-take-all” system and allocate the votes of the Electoral College delegates based on the popular vote in each state somewhat similar to but still different from what obtains in Maine and Nebraska. In California, for example, where Hillary Clinton secured all 55 Electoral College votes having received 66 per cent of the popular vote, it would have been split 36 to 19 in her favour, while in Texas where Donald Trump won 55 per cent of the popular vote and secured all 38 Electoral College votes, it would have been split 21 to 17 in his favour.

While this would not necessarily ensure that the candidate who wins the popular vote winds up as president, it would certainly minimise that possibility. In 2016, instead of Clinton securing only 232 Electoral College votes to Trump's 306, she would have received 272 to his 266 and become president.

The 2000 election between George W Bush and Al Gore would have produced an interesting result. Both candidates would have ended up with 269 Electoral College votes. The matter would have had to be decided by the House of Representatives voting not as individual members but with each state's delegation having one vote. Since the Republicans had a majority of members in most state delegations, George W Bush would still have emerged as president, despite losing the popular vote to Al Gore.

We in Jamaica also face the possibility of a party that loses the popular vote forming the Government by virtue of winning the majority of seats. It happened once in 1949. Unlike the US, we have no readily available means of avoiding or mitigating such an eventuality, although the absence of gerrymandering since we have had an independent electoral authority helps to make it unlikely.

Primary elections reform

There is also need for reform in the primary elections process. Up until recently, a person could seek a party's nomination without even being a member of that party. Bernie Sanders did precisely that in 2016, prompting the Democratic Party to institute a new rule in 2018 to make it an absolute requirement.

The purpose of the primary election is for the nominee for each party to be democratically chosen. One would presume that the people whose business it is to choose the party's nominee would be the members of that particular party. However, 25 states allow non-members of the party to vote in the primaries. A few restrict it to non-members who are registered as independent or unaffiliated, but 18 of them allow all registered voters, including registered members of the opposing party, to participate.

In an interview on CNN last week, a number of Republican voters declared that they would be voting for Bernie Sanders in the Democratic primaries because they think that, with his declared commitment to democratic socialism, he would be the easiest candidate for Trump to beat. That is not open democracy; it is lawfully permitted sabotage.

— Bruce Golding is a former prime minister of Jamaica

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