A Rebuttal of Richard Posner's Moronic Defense of The Electoral College

Richard Posner, judge, legal scholar, and the type of celebrity essayist that makes one question his fitness for the two preceding positions, has written a defense of the Electoral College in Slate. It qualifies as trolling, as done by a legal scholar. Let us take it point by point.

The Electoral College, an anti-democratic anachronism, should be abolished. Posner is, I hope, smart enough to know this. Especially considering the speciousness of his five arguments:

1) Certainty of Outcome

A dispute over the outcome of an Electoral College vote is possible-it happened in 2000-but it's less likely than a dispute over the popular vote. The reason is that the winning candidate's share of the Electoral College invariably exceeds his share of the popular vote... if the difference in the popular vote is small, then if the winner of the popular vote were deemed the winner of the presidential election, the losing candidate would have an incentive to seek a recount in the states in which he'd lost by only a small margin.

Here, Posner asserts that the prospect of recounting votes in order to get an accurate tally of the popular vote is so horrific that we should instead have in place a system that actively distorts the popular vote—simply because it makes it less likely that we might have to recount some votes. No.

2) Everyone's President

No region (South, Northeast, etc.) has enough electoral votes to elect a president. So a solid regional favorite, such as Romney was in the South, has no incentive to campaign heavily in those states, for he gains no electoral votes by increasing his plurality in states that he knows he will win. This is a desirable result because a candidate with only regional appeal is unlikely to be a successful president. The residents of the other regions are likely to feel disfranchised-to feel that their votes do not count, that the new president will have no regard for their interests, that he really isn't their president.

This is perhaps the most intellectually dishonest nonsensical argument of all. Because most states have a winner-take-all policy in awarding electors, the Electoral College system causes presidential candidates to completely ignore and write off states in which they feel their majority is strong enough to give them victory. Posner asserts that this is good, because it allows the candidate to ignore those states in favor of campaigning in other states, which will then not feel ignored. He neglects the fact that the states in which candidates take their lead for granted are completely ignored. Moronic.

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.

Haha! Did you catch that? This is the world in which Richard Posner lives: a world where voters in Ohio are "more likely to play close attention to the campaign," and "are likely to be the most thoughtful voters." How does Richard Posner know this? Well, the theoretical model inside of his head simply predicts it, that's all! Hilariously (as he does in the previous argument), he is trying to spin the fact that the Electoral College causes candidates to completely ignore the vast majority of American voters into a positive, by saying that the few remaining voters who do receive some attention from the campaigns will therefore be "the most thoughtful," and—please note—that because these voters have been deemed "most thoughtful" by Richard Posner, they should be the ones to decide the election. Here, Richard Posner is arguing against the wisdom of universal suffrage. He is quite plainly arguing that a system in which the (theoretically) "most thoughtful" voters decide everything is superior to a system in which everyone's vote is counted equally.

By his logic, the very best presidential election system would feature a group of the ten most thoughtful Americans huddling in a room by themselves, emerging to declare who had they had chosen. Perhaps Richard Posner would prefer Papal elections to presidential ones.

4) Big States

The Electoral College restores some of the weight in the political balance that large states (by population) lose by virtue of the mal-apportionment of the Senate decreed in the Constitution... The popular vote was very close in Florida; nevertheless Obama, who won that vote, got 29 electoral votes. A victory by the same margin in Wyoming would net the winner only 3 electoral votes. So, other things being equal, a large state gets more attention from presidential candidates in a campaign than a small states does. And since presidents and senators are often presidential candidates, large states are likely to get additional consideration in appropriations and appointments from presidents and senators before as well as during campaigns, offsetting to some extent the effects of the malapportioned Senate on the political influence of less populous states.

Here, Posner argues that the convoluted and undemocratic Electoral College system, with all of its flaws, is redeemed because it somewhat mitigates the convoluted and undemocratic setup of the U.S. Senate. A dumb conclusion to draw from this would be, "Well, let's keep the Electoral College, then." A much more glaringly obvious conclusion would be, "Let's use the popular vote for elections and abolish the Electoral College and the U.S. Senate."

5) Avoid Run-Off Elections

The Electoral College avoids the problem of elections in which no candidate receives a majority of the votes cast. For example, Nixon in 1968 and Clinton in 1992 both had only a 43 percent plurality of the popular votes, while winning a majority in the Electoral College (301 and 370 electoral votes, respectively). There is pressure for run-off elections when no candidate wins a majority of the votes cast; that pressure, which would greatly complicate the presidential election process, is reduced by the Electoral College, which invariably produces a clear winner.

Here, Richard Posner argues that a system that actively distorts the popular vote—the direct and measurable will of the people—is preferable to a system in which a run-off election might be required to choose our president. He argues, in other words, that a run-off election is so fearsome and horrible that it is worth having a system that may choose a president that the majority of people do not want. I do not recall how many deaths have been caused by American run-off elections, but it must have been many millions, judging by the level of fear such elections instill in Richard Posner's heart.

Abolish the Electoral College. And don't pay too much attention to Richard Posner.

[Slate; Previously. Photo: AP]