Growing up in a less polarized era, I often heard the conventional wisdom that the Electoral College “has served us well.” To find counterexamples to its reasonableness, you had to go back to the horse and buggy era, and I don’t remember anyone at the time lamenting that Sam Tilden was robbed of the presidency by “Old Eight-to Seven” Rutherford B. Hayes.
In hindsight we can see how flawed that complacency was. After 9/11, the Iraq debacle, the 2008 economic meltdown, and the deadliest pandemic in a century made worse by arguably criminal negligence at the top, it matters that a president should have a popular mandate—and that a majority of voting Americans should, by right, choose who governs them.
Given how disasters have proliferated like mushrooms under recent presidents elected by a minority, people may also sense, if not fully consciously, that the chicanery involved in a process that declares losers to be winners is not democratically legitimate—even if it’s legal. The catastrophes of the last two decades might even signify that a president who does not have the mandate of the people loses the mandate of heaven.
Thanks to the elections of 2000 and 2016, it has become the new conventional wisdom that the Electoral College gives a structural advantage to the Republican Party, an advantage that might grow even stronger as demographic sorting by ideology and lifestyle continues. Yet some within the punditry claim to see fissures in the post-Trump GOP that could lead to a third party, a “genuine” conservative party that leaves behind the extremism and delusion of the present GOP.
I have written elsewhere that this is wishful thinking. After his loss, some have concluded that Trump threatens the very future of his party. But even after a violent insurrection he incited, Republican politicians have continued to grovel, affirming their loyalty to Trump. Media suggestions of a “civil war” within the party are exaggerations; what they’re describing are heresy hunts against a few dissenters, like Rep. Liz Cheney, proceedings that are reminiscent of Stalin’s purge of the Communist Party.
Other than Trump himself, the GOP did well in 2020 at the federal, state, and local levels. If past performance is any guide, they could increase their advantage in the 2022 midterm election, and with their built-in advantage in the Electoral College when facing 2024, why would the party split? And if Democratic midterm apathy doesn’t turn the trick, Republican state legislatures are cooking up even more gerrymandering and voter suppression.
But before any other consideration, and under normal circumstances, the Electoral College’s winner-take-all rule for the states suggests dismal prospects for any third party (although, as we shall see, the Electoral College actually incentivizes a peculiar kind of third party whose rise could be catastrophic for democracy).
What pundits typically overlook are additional perverse features of our constitutional system beyond the widely known Electoral College. These features may not only entrench Republicans as a competitive political force, but could, in certain cases, spell the end of democracy. The mischievous interaction among the Electoral College, the House of Representatives, and national demographic trends is such that under the present system of two competitive parties we could be confronted with a terrible outcome. But under three parties, we could see an even worse result.
So far, out of 59 presidential elections, the United States has had five in which the candidate who did not win a plurality of the popular vote became president: 1824, 1876, 1888, 2000, and 2016. That is an average of 8.5 percent, making it far more frequent than a “black swan” occurrence.
It not just the 2000 and 2016 elections that are notorious for the disastrous events that ensued. The election of 1876, in which neither Republican Hayes nor Democratic candidate Tilden received an electoral vote majority, triggered a constitutional provision empowering the House of Representatives to decide the winner. This resulted in the “compromise of 1877” engineered by the House that awarded the disputed electoral votes to Hayes, the losing candidate, ended Reconstruction, and effectively gave rise to Jim Crow – yet another massive citizen disenfranchisement.
The election of 1824 hinged on a contest among four major candidates. The one declared president, John Quincy Adams, won only 30.9 percent of the popular vote, far below Andrew Jackson’s 41.4 percent. Jackson also won more electoral votes.
This election is a vivid example of the time bombs concealed in our constitutional rules. Given that neither Jackson nor Adams won a majority of electoral votes, the election went to the House, where each state delegation had one vote to cast, choosing a president from the top two finishers. Candidate Henry Clay, who finished third in the popular vote and last in the electoral vote, threw his support to Adams. He then lobbied the state delegations (in an institution of which he was speaker and presiding officer!) to cast their votes for Adams, thereby electing him president. The maneuver became known ever after as the “corrupt bargain.”
The 1824 election ignited a rancorous partisanship in the country. The issue of slavery was already beginning to simmer after the Missouri Compromise of 1820, and the sectional rivalry over the election debacle fed a belief on both sides that the legal holding of slaves could neither be ended nor preserved by peaceful political means.
The examples of 1824 and 1876 are relatively well known, but there are other instances of Electoral College caprice that might make people beware what they wish for when they dream of the GOP splitting in two. Our peculiar method of choosing a president normally handicaps third parties—but not always. Occasionally, it can magnify their importance in ways that do not bode well for democracy and national unity.
Normally, third party candidacies are duds. The most recent example of one that was popular was in 1992, when Ross Perot won 18.9% of the popular vote – a respectable performance. But how many electoral votes did he win? Exactly zero. Had his electoral votes been tallied in proportion to popular votes cast, Perot would have gained 101 electoral votes, making him the potential decider of who the president would be.
The fact that he gained no electors shows another perversity of our voting system. Think what you like about Perot as a candidate, the issues he was highlighting – the deficit and the outsourcing of manufacturing – were politically serious matters that the public took to heart.
Ironically, Perot’s electoral problem was that his signature issues were a matter of nationwide concern, even if in the short term they weren’t perceived as existential. Accordingly, he garnered substantial support all over the country – just not enough to gain a popular vote plurality in even one state.
Contrast that with two other elections in the last century in which a third party could have made a difference The 1948 Dewey-Truman election is chiefly remembered for the Chicago Tribune’s famous headline gaffe, but the third party candidate, segregationist Strom Thurmond, was no laughing matter.
Thurmond did poorly at the polls, achieving only 2.4 percent of the popular vote. But he received 39 electoral votes (exclusively in the South) of the 431 available in 1948 (before Alaska and Hawaii were admitted to the United States.) He thus obtained more than triple the proportion of electoral votes than his share of popular vote would warrant. Given that the Dewey-Truman race was close, Thurmond could have been the kingmaker had Dewey gained a small number of additional popular votes in a few states.
In 1968, George Wallace was the third-party candidate; he achieved a 13.5 percent share of the popular vote, significantly fewer than Ross Perot in 1992. Yet he gained 46 electoral votes.
The 1968 contest between Nixon and Humphrey was close: if a small portion of votes in the battleground states had gone to Humphrey rather than Nixon, Wallace’s 46 electoral votes would have meant that neither Humphrey nor Nixon would have had the necessary 270 to become president. With the war in Vietnam raging and civil rights a contentious issue, our political fate might have been brokered by George Corley Wallace, arch-segregationist, who won a plurality in a few southern states.
The poisonous secret of the Electoral College is not just that it advantages the less popular of two parties—if that party’s main support is in a large number of low-population states. It also has a wildly disparate impact on third-party efforts.
Ordinarily, it stifles third parties and along with that, broad, nationwide movements for political change. To be successful, third parties need a well-established electoral machine in numerous states so that they can hope to gain a popular-vote plurality in at least a few of them.
But there is an exception to this rule: suppose the party represents strong, not to say vehement, sectional interests concentrated in one region of the country, as with segregationists George Wallace and Strom Thurmond? Then, weirdly, the Electoral College politically magnifies those interests: first, by using the winner-take-all principle to create a solid regional bloc of electors. Then, by potentially denying a winner from one of two major-party candidates, a third party can throw the election into the House. As in 1824, this process can manufacture a “corrupt bargain” such that the third party’s needs receive special consideration (Henry Clay, in fact, finagled from President-Elect Adams the post of secretary of state—in those days, the customary stepping stone to the presidency).
The 2020 election was a startling illustration of all these dysfunctions of the Electoral College:
First, Biden won by seven million votes, rolling up 51.3 percent of the popular vote: the highest share for any challenger who defeated an incumbent president since Franklin Roosevelt’s victory in 1932.
Second, Biden’s Electoral College victory was gained by winning Arizona, Georgia, and Wisconsin by a combined margin of only 43,000 votes in an election with almost 160 million votes cast nationwide. This shows that the two-party disparity created by the Electoral College has steadily widened compared to 2000 (when Gore defeated Bush by over 500,000 votes), and 2016 (Clinton over Trump by three million votes). “Demographic sorting” of Republicans and Democrats into enclaves strongly favors the GOP.
Third, had the electoral victories in those three states gone to Trump, a 269-269 electoral-vote tie would have resulted. It could have conceivably been broken by just one faithless elector anywhere in the nation (in fact, Strom Thurmond’s electoral vote total was bolstered by a faithless elector in Tennessee). Result: Trump could have legally become president had he reduced his seven million-vote loss by a miniscule 43,000 votes.
Fourth, in a future election, any third party that denied a majority of electoral votes to an otherwise-victorious Democratic candidate could create an even more pernicious inequity than what we have become accustomed to seeing when electoral votes are counted. It would automatically pitch the election into the House, where the one-vote-per-state rule amplifies the built-in Republican advantage even more.
In that case, would we have wanted to see in 2020 a “principled” center-right third party contesting specific battleground states, especially as Trump frequently ran behind other Republican candidates on the ballot? That evidence indicates that there was a non-negligible number of ticket-splitters who voted for Republican down-ballot candidates even while pulling the lever for Biden. A center-right third party operating strategically in a few states could have thrown the Electoral College to Trump by drawing those votes from Biden. In the future, with enough of a ground game, such a party could win electoral votes in its own right and default the election to the House, rich in Republican-controlled state delegations.
If these scenarios seem farfetched, it’s because we have been conditioned by the post-World War II consensus. That consensus included decorum, playing by the spirit and not just the letter of the rules, and a sense of fair play—despite the fact that there were all-too-frequent exceptions. No less a scoundrel than Nixon knew when the game was up, and after a short and un-embittered farewell speech to his White House staff (even if it was only acting), he left. Even the most empty, gestural form of that spirit is now dead.
To expect as a matter of course that a Republican House will honor the will of voters, even if a Democratic candidate had won a popular-vote landslide, is naïve. Under the right strategic circumstances, a party might also spend massive resources to bring into being a false-flag third party if they sensed it would keep them in power. The country largely slept while Republicans did something similar in the early 2000s with a scientific strategy of systematically gerrymandering congressional districts to the maximum extent feasible.
This makes it all the more urgent to ask why our political system seems to empower not only a minority party in a two-party regime, but also favors third parties when they advance retrograde ideas that have no traction in the country as a whole, or that merely act as spoilers. Perhaps the explanation is that human institutions operate as money operates according to Gresham’s Law: the bad drives out the good. Without vigilant oversight and periodic reform, civic machinery breaks down.
On the other hand, if the writing of the Constitution was a compromise among many participants, one key faction of them was totally uncompromising. If it did not get its way, it was prepared to walk out and abandon the United States. It was obsessed with protecting slavery to the exclusion of other interests, including national unity; it was confined to a particular region; and it was conscious that it not only represented low-population states compared to the northern states, but that the disparity in population would likely increase.
The slave interests knew perfectly well what they were doing at the Constitutional Convention, and now, 230 years later, the electoral scheme they saddled us with is working just as they might have hoped: as a bulwark of reactionary conservatism against democratic self-government. Today’s Republican Party knows that, too.Print