Super Lawyers
William C. Altreuter

Monday, November 12, 2012

The Hon. Richard Posner is one of our heros here at Outside Counsel, but his defense of the Electoral College is off base.

1) Certainty of Outcome. Posner says that a dispute over the vote in the Electoral College is less likely than a dispute over the popular vote. This is, I'm afraid, question begging, since the Electoral College vote is based on the popular vote in each state.

2) Everyone’s President. The idea is that the Electoral College forces candidates to have trans-regional appeal, and validates the winner because voters from different parts of the country will have voted for that candidate. Like hell. As with all of these arguments a single number is sufficient rebutal: 2000. Remember this map?
The Blue states are, mostly, the population centers, except for Texas. We will leave Florida out of it for the moment. Bush won the Old Confederacy and all the states that look big on the map and look empty when you are driving through them.

3) Swing States "The winner-take-all method of awarding electoral votes induces the candidates—as we saw in last week’s election—to focus their campaign efforts on the toss-up states; that follows directly from the candidates’ lack of inducement to campaign in states they are sure to win. 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"

Seriously, Judge Posner? You think people who live in Ohio are more likely to be thoughtful voters than people who live in New York?

4) Big States.  The argument here is that the states with lots of people in them would have too much electoral power, and the Electoral College restores balance to the system. The problem with this is that it gives people (who are the ones doing the voting after all) in, for example, North Dakota, greater electoral influence than people in New Jersey. This may have made sense in the Eighteenth Century, when the United States was a loosely amalgamated patchwork of colonies. Today it seems crazy to say that places with lots of people in them should be less important than places with lots of animals, or lots of dirt.

5) Avoid Run-Off Elections. Well, yes. The Electoral College amplifies the popular vote, but it is subject to ties, and when that happens we get the House voting for who becomes President and the Senate voting for Vice President. That is madness indeed.


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