Thursday, October 02, 2008

Electoral College and the Franchise

In the comments to my last post on the Electoral College, Steven Matheson asked how I would defend the EC against the charge that it is "an arrangement that...is very well designed to disenfranchise about half of the American electorate" and that "the problem is that the votes of the citizens are not equally counted." This is certainly a common complaint against the EC, and would be serious if could be made to stick. I promised to post on the subject again.

However, more and more I'm thinking that I may not understand what's intended by the objection. To be disenfranchised is to have your franchise, i.e., your right as a free citizen, stripped away; in this context the franchise consists in (1) the right to vote as a citizen to contribute to the government; and (2) the right to have that vote counted in a way not discriminatory against my vote, to the extent that this is in fact rationally possible.* But there really isn't any question of anyone's right to vote being stripped away by the EC. So it would have to come down to the question of my vote not being discriminated against. But no one's vote is discriminated against by the Electoral College: the Electoral College doesn't handle the popular vote, the details of which are handled by state election laws (and Congress in the case of DC). Well, one could argue that this is not the case with Puerto Rico and other territories that lack representation in the Electoral College, to the extent that they cannot be represented by the Electors of states, but I take it that this is not the point of the objection. The popular vote is taken; I have the right to vote, my vote is counted equally according to state election law, assuming that the law is not itself discriminatory and is followed, and thus my franchise is preserved.

What is intended must be something else, and it has something to do with conflating the two distinct stages of our election process. We have a popular vote to determine "in such Manner as the Legislature [of the State] may direct" our slate of Electors for the Electoral College. The Electors then choose the President. Now the slate of Electors varies from state to state, since the number of Electors is determined by the number of that state's representatives in Congress. But how this is supposed to affect my franchise, assuming that my state's election laws are not themselves bad, is not something I really see. And if it's my state's election laws that are bad, it's the state election laws that need changing, not the EC.

I suspect that the real complaint here is that my vote is not a direct determinant of the choice of the President. But this is not really a complaint about franchise; one might as well argue that we are disenfranchised every time Congress votes, since our vote (for the representative) didn't directly determine the vote for the particular legislation on the table.

It's possible, too, that there's a sort of illusion created by the fact that the press tallies up national popular vote numbers. If you do that, it looks like all those votes are counted equally. This however is an illusion; and the national popular vote tally is a fiction -- a useful fiction for certain purposes, but a fiction nonetheless. For one thing, the tally ignores the margin of uncertainty in the election, which can be massive. But more importantly than this, not all of those votes in that tally were counted the same. And it's impossible for them to be, unless all our states had the same election laws and none of those laws allowed much wiggle room for interpretation by vote-counters. But both of these conditions are empirically false. A vote that would count in Miami might not count in Denver; and a vote that would not count in Los Angeles might have counted in Roswell, New Mexico. We are not using the same ballots. We are not using the same means of voting. Our votes are not counted according to the same laws, nor according to the same methods. And the reason is clear and explicit: we are not voting as a nation, we are voting as a state. In principle, my vote should count the same, to the extent humanly possible, as every other citizen in my state. If it's not, that's a sign that the state election laws need revision. But my vote is, strictly speaking, incommensurable with the vote of someone in a completely different state. We can only be treated as doing exactly the same thing by abstracting from a number of important differences. And this doesn't affect my franchise, either.

So I suppose I need more information about what the objection is supposed to be. So what is the real issue here?
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* The qualification is due to the fact that there may be accidents, etc., that are unavoidable. In any sufficiently large popular election there will in fact be a rather massive margin of uncertainty due to accidents; this is not practically avoidable, since there are too many possible causes of accidents. It's possible, for instance, that my vote doesn't register for some reason, by sheer accident (e.g., I didn't punch off enough of the chad, or there was a computer glitch, or the paper ballot got stuck to something and was never discovered, or what have you). My franchise doesn't protect against this, but it does protect against deliberate failure or refusal to register my vote, and it does protect (indirectly) against radical negligence in the registering of votes.

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