End Gerrymandering by Focussing on the Process, Not on the Outcomes

A.  Introduction

There is little that is as destructive to a democracy as gerrymandering.  As has been noted by many, with gerrymandering the politicians are choosing their voters rather than the voters choosing their political representatives.

The diagrams above, in schematic form, show how gerrymandering works.  Suppose one has a state or region with 50 precincts, with 60% that are fully “blue” and 40% that are fully “red”, and where 5 districts need to be drawn.  If the blue party controls the process, they can draw the district lines as in the middle diagram, and win all 5 (100%) of the districts, with just 60% of the voters.  If, in contrast, the red party controls the process for some reason, they could draw the district boundaries as in the diagram on the right.  They would then win 3 of the 5 districts (60%) even though they only account for 40% of the voters.  It works by what is called in the business “packing and cracking”:  With the red party controlling the process, they “pack” as many blue voters as possible into a small number of districts (two in the example here, each with 90% blue voters), and then “crack” the rest by scattering them around in the remaining districts, each as a minority (three districts here, each with 40% blue voters and 60% red).

Gerrymandering leads to cynicism among voters, with the well-founded view that their votes just do not matter.  Possibly even worse, gerrymandering leads to increased polarization, as candidates in districts with lines drawn to be safe for one party or the other do not need to worry about seeking to appeal to voters of the opposite party.  Rather, their main concern is that a more extreme candidate from their own party will not challenge them in a primary, where only those of their own party (and normally mostly just the more extreme voters in their party) will vote.  And this is exactly what we have seen, especially since 2010 when gerrymandering became more sophisticated, widespread, and egregious than ever before.

Gerrymandering has grown in recent decades both because computing power and data sources have grown increasingly sophisticated, and because a higher share of states have had a single political party able to control the process in full (i.e. with both legislative chambers, and the governor when a part of the process, all under a single party’s control).  And especially following the 2010 elections, this has favored the Republicans.  As a result, while there has been one Democratic-controlled state (Maryland) on common lists of the states with the most egregious gerrymandering, most of the states with extreme gerrymandering were Republican-controlled.  Thus, for example, Professor Samuel Wang of Princeton, founder of the Princeton Gerrymandering Project, has identified a list of the eight most egregiously gerrymandered states (by a set of criteria he has helped develop), where one (Maryland) was Democratic-controlled, while the remaining seven were Republican.  Or the Washington Post calculated across all states an average of the degree of compactness of congressional districts:  Of the 15 states with the least compact districts, only two (Maryland and Illinois) were liberal Democratic-controlled states.  And in terms of the “efficiency gap” measure (which I will discuss below), seven states were gerrymandered following the 2010 elections in such a way as to yield two or more congressional seats each in their favor.  All seven were Republican-controlled.

With gerrymandering increasingly common and extreme, a number of cases have gone to the Supreme Court to try to stop it.  However, the Supreme Court has failed as yet to issue a definitive ruling ending the practice.  Rather, it has so far skirted the issue by resolving cases on more narrow grounds, or by sending cases back to lower courts for further consideration.  This may soon change, as the Supreme Court has agreed to take up two cases (affecting lines drawn for congressional districts in North Carolina and in Maryland), with oral arguments scheduled for March 26, 2019.  But it remains to be seen if these cases will lead to a definitive ruling on the practice of partisan gerrymandering or not.

This is not because of a lack of concern by the court.  Even conservative Justice Samuel Alito has conceded that “gerrymandering is distasteful”.  But he, along with the other conservative justices on the court, have ruled against the court taking a position on the gerrymandering cases brought before it, in part, at least, out of the concern that they do not have a clear standard by which to judge whether any particular case of gerrymandering was constitutionally excessive.  This goes back to a 2004 case (Vieth v. Jubelirer) in which the four most conservative justices of the time, led by Justice Antonin Scalia, opined that there could not be such a standard, while the four liberal justices argued that there could.  Justice Anthony Kennedy, in the middle, issued a concurring opinion with the conservative justices there was not then an acceptable such standard before them, but that he would not preclude the possibility of such a standard being developed at some point in the future.

Following this 2004 decision, political scientists and other scholars have sought to come up with such a standard.  Many have been suggested, such as a set of three tests proposed by Professor Wang of Princeton, or measures that focus on the share of seats won to the share of the votes cast, and more.  Probably most attention in recent years has been given to the “efficiency gap” measure proposed by Professor Nicholas Stephanopoulos and Eric McGhee.  The efficiency gap is the gap between the two main parties in the “wasted votes” each party received in some past election in the state (as a share of total votes in the state), where a wasted vote is the sum of all the votes for a losing candidate of that party, plus the votes in excess of 50% when that party’s candidate won.  This provides a direct measure of the two basic tactics of gerrymandering, as described above, of “packing” as many voters of one party as possible in a small number of districts (where they might receive 80 or 90% of the votes, but with all those above 50% “wasted”), and “cracking” (by splitting up the remaining voters of that party into a large number of districts where they will each be in a minority and hence will lose, with those votes then also “wasted”).

But there are problems with each of these measures, including the widely touted efficiency gap measure.  It has often been the case in recent years, in our divided society, that like-minded voters live close to each other, and particular districts in the state then will, as a result, often see the winner of the district receive a very high share of the votes.  Thus, even with no overt gerrymandering, the efficiency gap as measured will appear large.  Furthermore, at the opposite end of this spectrum, the measure will be extremely sensitive if a few districts are close to 50/50.  A shift of just a few percentage points in the vote will then lead one party or the other to lose and hence will then see a big jump in their share of wasted votes (the 49% received by one party or the other).

There is, however, a far more fundamental problem.  And that is that this is simply the wrong question to ask.  With all due respect to Justice Kennedy, and recognizing also that I am an economist and not a lawyer, I do not understand why the focus here is on the voting outcome, rather than on the process by which the district lines were drawn.  The voting outcome is not the standard by which other aspects of voter rights are judged.  Rather, the focus is on whether the process followed was fair and unbiased, with the outcome then whatever it is.

I would argue that the same should apply when district lines are drawn.  Was the process followed fair and unbiased?  The way to ensure that would be to remove the politicians from the process (both directly and indirectly), and to follow instead an automatic procedure by which district lines are drawn in accord with a small number of basic principles.

The next section below will first discuss the basic point that the focus when judging fairness and lack of bias should not be on whether we can come up with some measure based on the vote outcomes, but rather on whether the process that was followed to draw the district lines was fair and unbiased or not.  The section following will then discuss a particular process that illustrates how this could be done.  It would be automatic, and would produce a fair and unbiased drawing of voting district lines that meets the basic principles on which such a map should be based (districts of similar population, compactness, contiguity, and, to the extent consistent with these, respect for the boundaries of existing political jurisdictions such as counties or municipalities).  And while I believe this particular process would be a good one, I would not exclude that others are possible.  The important point is that the courts should require the states to follow some such process, and from the example presented we see that this is indeed feasible.  It is not an impossible task.

The penultimate section of the post will then discuss a few points that arise with any such system, and their implications, and end with a brief section summarizing the key points.

B.  A Fair Voting System Should Be Judged Based on the Process, Not on the Outcomes

Voting rights are fundamental in any democracy.  But in judging whether some aspect of the voting system is proper, we do not try to determine whether or not (by some defined specific measure) the resulting outcomes were improperly skewed or not.

Thus, for example, we take as a basic right that our ballot may be cast in secret.  No government official, nor anyone else for that matter, can insist on seeing how we voted.  Suppose that some state passed a law saying a government-appointed official will look over the shoulder of each of us as we vote, to determine whether we did it “right” or not.  We would expect the courts to strike this down, as an inappropriate process that contravenes our basic voting rights.  We would not expect the courts to say that they should look at the subsequent voting outcomes, and try to come up with some specific measure which would show, with certainty, whether the resulting outcomes were excessively influenced or not.  That would of course be absurd.

As another absurd example, suppose some state passed a law granting those registered in one of the major political parties, but not those registered in the other, access to more early days of voting than the other.  This would be explicitly partisan, and one would assume that the courts would not insist on limiting their assessment to an examination of the later voting outcomes to see whether, by some proposed measure, the resulting outcomes were excessively affected.  The voting system, to be fair, should not lead to a partisan advantage for one party or the other.  But gerrymandering does precisely that.

Yet the courts have so far asked declined to issue a definitive ruling on partisan gerrymandering, and have asked instead whether there might be some measure to determine, in the voting outcomes, whether gerrymandering had led to an excessive partisan advantage for the party drawing the district lines.  And there have been open admissions by senior political figures that district borders were in fact drawn up to provide a partisan advantage.  Indeed, principals involved in the two cases now before the Supreme Court have openly said that partisan advantage was the objective.  In North Carolina, David Lewis, the Republican chair of the committee in the state legislature responsible for drawing up the district lines, said during the debate that “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.”

And in the case of Maryland, the Democratic governor of the state in 2010 at the time the congressional district lines were drawn, Martin O’Malley, spoke out in 2018 in writing and in interviews openly acknowledging that he and the Democrats had drawn the district lines for partisan advantage.  But he also now said that this was wrong and that he hoped the Supreme Court would rule against what they had done.

But how to remove partisanship when district lines are drawn?  As long as politicians are directly involved, with their political futures (and those of their colleagues) dependent on the district lines, it is human nature that biases will enter.  And it does not matter whether the biases are conscious and openly expressed, or unconscious and denied.  Furthermore, although possibly diminished, such biases will still enter even with independent commissions drawing the district lines.  There will be some political process by which the commissioners are appointed, and those who are appointed, even if independent, will still be human and will have certain preferences.

The way to address this would rather be to define some automatic process which, given the data on where people live and the specific principles to follow, will be able to draw up district lines that are both fair (follow the stated principles) and unbiased (are not drawn up in order to provide partisan advantage to one party).  In the next section I will present a particular process that would do this.

C.  An Automatic Process to Draw District Lines that are Fair and Unbiased

The boundaries for fair and unbiased districts should be drawn in accord with the following set of principles (and no more):

a)  One Person – One Vote:  Each district should have a similar population;

b)  Contiguity:  Each district must be geographically contiguous.  That is, one continuous boundary line will encompass the entire district and nothing more;

c)  Compactness:  While remaining consistent with the above, districts should be as compact as possible under some specified measure of compactness.

And while not such a fundamental principle, a reasonable objective is also, to the extent possible consistent with the basic principles above, that the district boundaries drawn should follow the lines of existing political jurisdictions (such as of counties or municipalities).

There will still be a need for decisions to be made on the basic process to follow and then on a number of the parameters and specific rules required for any such process.  Individual states will need to make such decisions, and can do so in accordance with their traditions and with what makes sense for their particular state.  But once these “rules of the game” are fully specified, there should then be a requirement that they will remain locked in for some lengthy period (at least to beyond whenever the next decennial redistricting will be needed), so that games cannot be played with the rules in order to bias a redistricting that may soon be coming up.  This will be discussed further below.

Such specific decisions will need to be made in order to fully define the application of the basic principles presented above.  To start, for the one person – one vote principle the Supreme Court has ruled that a 10% margin in population between the largest and smallest districts is an acceptable standard.  And many states have indeed chosen to follow this standard.  However, a state could, if it wished, choose to use a tighter standard, such as a margin in the populations between the largest and smallest districts of no more than 8%, or perhaps 5% or whatever.  A choice needs to be made.

Similarly, a specific measure of compactness will need to be specified.  Mathematically there are several different measures that could be used, but a good one which is both intuitive and relatively easy to apply is that the sum of the lengths of all the perimeters of each of the districts in the state should be minimized.  Note that since the outside borders of the state itself are fixed, this sum can be limited just to the perimeters that are internal to the state.  In essence, since states are to be divided up into component districts (and exhaustively so), the perimeter lines that do this with the shortest total length will lead to districts that are compact.  There will not be wavy lines, nor lines leading to elongated districts, as such lines will sum to a greater total length than possible alternatives.

What, then, would be a specific process (or algorithm) which could be used to draw district lines?  I will recommend one here, which should work well and would be consistent with the basic principles for a fair and unbiased set of district boundaries.  But other processes are possible.  A state could choose some such alternative (but then should stick to it).  The important point is that one should define a fully specified, automatic, and neutral process to draw such district lines, rather than try to determine whether some set of lines, drawn based on the “judgment” of politicians or of others, was “excessively” gerrymandered based on the voting outcomes observed.

Finally, the example will be based on what would be done to draw congressional district lines in a state.  But one could follow a similar process for drawing other such district lines, such as for state legislative districts.

The process would follow a series of steps:

Step 1: The first step would be to define a set of sub-districts within each county in a state (parish in Louisiana) and municipality (in those states where municipalities hold similar governmental responsibilities as a county).  These sub-districts would likely be the districts for county boards or legislative councils in most of the states, and one might typically have a dozen or more of these in such jurisdictions.  When those districts are also being redrawn as part of the decennial redistricting process, then they should be drawn first (based on the principles set out here), before the congressional district lines are drawn.

Each state would define, as appropriate for the institutions of that specific state, the sub-districts that will be used for the purpose of drawing the congressional district lines.  And if no such sub-jurisdictions exist in certain counties of certain states, one could draw up such sub-districts, purely for the purposes of this redistricting exercise, by dividing such counties into compact (based on minimization of the sum of the perimeters), equal population, districts.  While the number of such sub-districts would be defined (as part of the rules set for the process) based on the population of the affected counties, a reasonable number might generally be around 12 or 15.

These sub-districts will then be used in Step 4 below to even out the congressional districts.

Step 2:  An initial division of each state into a set of tentative congressional districts would then be drawn based on minimizing the sum of the lengths of the perimeter lines for all the districts, and requiring that all of the districts in the state have exactly the same population.  Following the 2010 census, the average population in a congressional district across the US was 710,767, but the exact number will vary by state depending on how many congressional seats the state was allocated.

Step 3: This first set of district lines will not, in general, follow county and municipal lines.  In this step 3, the initial set of district lines would then be shifted to the county or municipal line which is geographically closest to it (as defined by minimizing the geographic area that would be shifted in going to that county or city line, in comparison to whatever the alternative jurisdiction would be).  If the populations in the resulting congressional districts are then all within the 10% margin for the populations (or whatever percent margin is chosen by the state) between the largest and the smallest districts, then one is finished and the map is final.

Step 4:  But in general, there may be one or more districts where the resulting population exceeds or falls short of the 10% limit.  One would then make use of the political subdivisions of the counties and municipalities defined in Step 1 to bring them into line.  A specific set of rules for that process would need to be specified.  One such set would be to first determine which congressional district, as then drawn, deviated most from what the mean population should be for the districts in that state.  Suppose that district had too large of a population.  One would then shift one of the political subdivisions in that district from it to whichever adjacent congressional district had the least population (of all adjacent districts).  And the specific political subdivision shifted would then be the one which would have the least adverse impact on the measure of compactness (the sum of perimeter lengths).  Note that the impact on the compactness measure could indeed be positive (i.e. it could make the resulting congressional districts more compact), if the political subdivision eligible to be shifted were in a bend in the county or city line.

If the resulting congressional districts were all now within the 10% population margin (or whatever margin the state had chosen as its standard), one would be finished.  But if this is not the case, then one would repeat Step 4 over and over as necessary, each time for whatever district was then most out of line with the 10% margin.

That is it.  The result would be contiguous and relatively compact congressional districts, each with a similar population (within the 10% margin, or whatever margin is decided upon), and following borders of counties and municipalities or of political sub-divisions within those entities.

This would of course all be done on the computer, and can be once the rules and parameters are all decided as there will no longer be a role for opinion nor an opportunity for political bias to enter.  And while the initial data entry will be significant (as one would need to have the populations and perimeter lengths of each of the political subdivisions, and those of the counties and municipalities that they add up to), such data are now available from standard sources.  Indeed, the data entry needed would be far less than what is typically required for the computer programs used by our politicians to draw up their gerrymandered maps.

D.  Further Remarks

A few more points:

a)  The Redistricting Process, Once Decided, Should be Locked In for a Long Period:  As was discussed above, states will need to make a series of decisions to define fully the specific process it chooses to follow.  As illustrated in the case discussed above, states will need to decide on matters such as what will be the maximum margin of the populations between the largest and smallest districts (no more than 10%, by Supreme Court decision, but it could be less).  And rules will need to be set on, also as in the case discussed above, what measure of compactness to use, or the criterion on which district should be chosen first to have a shift of a sub-district in order to even out the population differences, and so on.

Such decisions will have an impact on the final districts arrived at.  And some of those districts will favor Republicans and some will favor Democrats, just by random.  There would then be a problem if the redistricting were controlled by one party in the state, and that party (through consultants who specialize in this) tried out dozens if not hundreds of possible choices on the parameters to see which would turn out to be most advantageous to it.  While the impact would be far less than what we have now with the deliberate gerrymandering, there could still be some effect.

To stem this, one should require that once choices are made on the process to follow and on the rules and other parameters needed to implement that process, there could not then be a change in that process for the immediately upcoming decennial redistricting.  They would only apply to those following.  While this would not be possible for the very first application of the system, there will likely be a good deal of attention paid by the public to these issues initially so such an attempt to bias the system would be difficult.

As noted, this is not likely to be a major problem, and any such system will not introduce the major biases we have seen in the deliberately gerrymandered maps of numerous states following the 2010 census.  But by locking in any decisions made for a long period, where any random bias in favor of one party in a map might well be reversed following the next census, there will be less of a possibility to game the system by changing the rules, just before a redistricting is due, to favor one party.

b)  Independent Commissions Do Not Suffice  – They Still Need to Decide How to Draw the District Maps:  A reform that has been increasingly advocated by many in recent years is to take the redistricting process out of the hands of the politicians, and instead to appoint independent commissions to draw up the maps.  There are seven states currently with non-partisan or bipartisan, nominally independent, commissions that draw the lines for both congressional and state legislative districts, and a further six who do this for state legislative districts only.  Furthermore, several additional states will use such commissions starting with the redistricting that follows the 2020 census.  Finally, there is Iowa.  While technically not an independent commission, district lines in Iowa are drawn up by non-partisan legislative staff, with the state legislature then approving it or not on a straight up or down vote.  If not approved, the process starts over, and if not approved after three votes it goes to the Iowa Supreme Court.

While certainly a step in the right direction, a problem with such independent commissions is that the process by which members are appointed can be highly politicized.  And even if not overtly politicized, the members appointed will have personal views on who they favor, and it is difficult even with the best of intentions to ensure such views do not enter.

But more fundamentally, even a well-intentioned independent commission will need to make choices on what is, and what is not, a “good” district map.  While most states list certain objectives for the redistricting process in either their state constitutions or in legislation, these are typically vague, such as saying the maps should try to preserve “communities of interest”, but with no clarity on what this in practice means.  Thirty-eight states also call for “compactness”, but few specify what that really means.  Indeed, only two states (Colorado and Iowa) define a specific measure of compactness.  Both states say that compactness should be measured by the sum of the perimeter lines being minimized (the same measure I used in the process discussed above).  However, in the case of Iowa this is taken along with a second measure of compactness (the absolute value of the difference between the length and the width of a district), and it is not clear how these two criteria are to be judged against each other when they differ.  Furthermore, in all states, including Colorado and Iowa, the compactness objective is just one of many objectives, and how to judge tradeoffs between the diverse objectives is not specified.

Even a well-intentioned independent commission will need to have clear criteria to judge what is a good map and what is not.  But once these criteria are fully specified, there is then no need for further opinion to enter, and hence no need for an independent commission.

c)  Appropriate and Inappropriate Principles to Follow: As discussed above, the basic principles that should be followed are:  1) One person – One vote, 2) Contiguity, and 3) Compactness.  Plus, to the extent possible consistent with this, the lines of existing political jurisdictions of a state (such as counties and municipalities) should be respected.

But while most states do call for this (with one person – one vote required by Supreme Court decision, but decided only in 1964), they also call for their district maps to abide by a number of other objectives.  Examples include the preservation of “communities of interest”, as discussed above, where 21 states call for this for their state legislative districts and 16 for their congressional districts (where one should note that congressional districting is not relevant in 7 states as they have only one member of Congress).  Further examples of what are “required” or “allowed” to be considered include preservation of political subdivision lines (45 states); preservation of “district cores” (8 states); and protection of incumbents (8 states).  Interestingly, 10 states explicitly prohibit consideration of the protection of incumbents.  And various states include other factors to consider or not consider as well.

But many, indeed most, of these considerations are left vague.  What does it mean that “communities of interest” are to be preserved where possible?  Who defines what the relevant communities are?  What is the district “core” that is to be preserved?  And as discussed above, there is a similar issue with the stated objective of “compactness”, as while 38 states call for it, only Colorado and Iowa are clear on how it is defined (but then vague on what trade-offs are to be accepted against other objectives).

The result of such multiple objectives, mostly vaguely defined and with no guidance on trade-offs, is that it is easy to come up with the heavily gerrymandered maps we have seen and the resulting strong bias in favor of one political party over the other.  Any district can be rationalized in terms of at least one of the vague objectives (such as preserving a “community of interest”).  These are loopholes which allow the politicians to draw maps favorable to themselves, and should be eliminated.

d)  Racial Preferences: The US has a long history of using gerrymandering (as well as other measures) to effectively disenfranchise minority groups, in particular African-Americans.  This has been especially the case in the American South, under the Jim Crow laws that were in effect through to the 1960s.  The Voting Rights Act of 1965 aimed to change this.  It required states (in particular under amendments to Section 2 passed in 1982 when the Act was reauthorized) to ensure minority groups would be able to have an effective voice in their choice of political representatives, including, under certain circumstances, through the creation of congressional and other legislative districts where the previously disenfranchised minority group would be in the majority (“majority-minority districts”).

However, it has not worked out that way.  Indeed, the creation of majority-minority districts, with African-Americans packed into as small a number of districts as possible and with the rest then scattered across a large number of remaining districts, is precisely what one would do under classic gerrymandering (packing and cracking) designed to limit, not enable, the political influence of such groups.  With the passage of these amendments to the Voting Rights Act in 1982, and then a Supreme Court decision in 1986 which upheld this (Thornburg v. Gingles), Republicans realized in the redistricting following the 1990 census that they could then, in those states where they controlled the process, use this as a means to gerrymander districts to their political advantage.  Newt Gingrich, in particular, encouraged this strategy, and the resulting Republican gains in the South in 1992 and 1994 were an important factor in leading to the Republican take-over of the Congress following the 1994 elections (for the first time in 40 years), with Gingrich then becoming the House Speaker.

Note also that while the Supreme Court, in a 5-4 decision in 2013, essentially gutted a key section of the Voting Rights Act, the section they declared to be unconstitutional was Section 5.  This was the section that required pre-approval by federal authorities of changes in voting statutes in those jurisdictions of the country (mostly the states of the South) with a history of discrimination as defined in the statute.  Left in place was Section 2 of the Voting Rights Act, the section under which the gerrymandering of districts on racial lines has been justified.  It is perhaps not surprising that Republicans have welcomed keeping this Section 2 while protesting Section 5.

One should also recognize that this racial gerrymandering of districts in the South has not led to most African-Americans in the region being represented in Congress by African-Americans.  One can calculate from the raw data (reported here in Ballotpedia, based on US Census data), that as of 2015, 12 of the 71 congressional districts in the core South (Louisiana, Mississippi, Alabama, Georgia, South Carolina, North Carolina, Virginia, and Tennessee) had a majority of African-American residents.  These were all just a single district in each of the states, other than two in North Carolina and four in Georgia.  But the majority of African Americans in those states did not live in those twelve districts.  Of the 13.2 million African-Americans in those eight states, just 5.0 million lived in those twelve districts, while 8.2 million were scattered around the remaining districts.  By packing as many African-Americans as possible in a small number of districts, the Republican legislators were able to create a large number of safe districts for their own party, and the African-Americans in those districts effectively had little say in who was then elected.

The Voting Rights Act was an important measure forward, drafted in reaction to the Jim Crow laws that had effectively undermined the right to vote of African-Americans.  And defined relative to the Jim Crow system, it was progress.  However, relative to a system that draws up district lines in a fair and unbiased manner, it would be a step backwards.  A system where minorities are packed into a small number of districts, with the rest then scattered across most of the districts, is just standard gerrymandering designed to minimize, not to ensure, the political rights of the minority groups.

E.  Conclusion

Politicians drawing district lines to favor one party and to ensure their own re-election fundamentally undermines democracy.  Supreme Court justices have themselves called it “distasteful”.  However, to address gerrymandering the court has sought some measure which could be used to ascertain whether the resulting voting outcomes were biased to a degree that could be considered unconstitutional.

But this is not the right question.  One does not judge other aspects of whether the voting process is fair or not by whether the resulting outcomes were by some measure “excessively” affected or not.  It is not clear why such an approach, focused on vote outcomes, should apply to gerrymandering.  Rather, the focus should be on whether the process followed was fair and unbiased or not.

And one can certainly define a fair and unbiased process to draw district lines.  The key is that the process, once established, should be automatic and follow the agreed set of basic principles that define what the districts should be – that they should be of similar population, compact, contiguous, and where possible and consistent with these principles, follow the lines of existing political jurisdictions.

One such process was outlined above.  But there are other possibilities.  The key is that the courts should require, in the name of ensuring a fair vote, that states must decide on some such process and implement it.  And the citizenry should demand the same.

Impact of the 1994 Assault Weapons Ban on Mass Shootings: An Update, Plus What To Do For a Meaningful Reform

A.  Introduction

An earlier post on this blog (from January 2013, following the horrific shooting at Sandy Hook Elementary School in Connecticut), looked at the impact of the 1994 Federal Assault Weapons Ban on the number of (and number of deaths from) mass shootings during the 10-year period the law was in effect.  The data at that point only went through 2012, and with that limited time period one could not draw strong conclusions as to whether the assault weapons ban (with the law as written and implemented) had a major effect.  There were fewer mass shootings over most of the years in that 1994 to 2004 period, but 1998 and 1999 were notable exceptions.

There has now been another horrific shooting at a school – this time at Marjory Stoneman Douglas High School in Parkland, Florida.  There are once again calls to limit access to the military-style semiautomatic assault weapons that have been used in most of these mass shootings (including the ones at Sandy Hook and Stoneman Douglas).  And essentially nothing positive had been done following the Sandy Hook shootings.  Indeed, a number of states passed laws which made such weapons even more readily available than before.  And rather than limiting access to such weapons, the NRA response following Sandy Hook was that armed guards should be posted at every school.  There are, indeed, now more armed guards at our schools.  Yet an armed guard at Stoneman Douglas did not prevent this tragedy.

With the passage of time, we now have five more years of data than we had at the time of the Sandy Hook shooting.  With this additional data, can we now determine with more confidence whether the Assault Weapons Ban had an impact, with fewer shootings incidents and fewer deaths from such shootings?

This post will look at this.  With the additional five years of data, it now appears clear that the 1994 to 2004 period did represent a change in the sadly rising trend, with a reduction most clearly in the number of fatalities from and total victims of those mass shootings.  This was true even though the 1994 Assault Weapons Ban was a decidedly weak law, with a number of loopholes that allowed continued access to such weapons for those who wished to obtain them.  Any new law should address those loopholes, and I will discuss at the end of this post a few such measures so that such a ban would be more meaningful.

B.  The Number of Mass Shootings by Year

The Federal Assault Weapons Ban (formally the “Public Safety and Recreational Firearms Use Protection Act”, and part of a broader crime control bill) was passed by Congress and signed into law on September 13, 1994.  The Act banned the sale of any newly manufactured or imported “semiautomatic assault weapon” (as defined by the Act), as well as of newly manufactured or imported large capacity magazines (holding more than 10 rounds of ammunition).  The Act had a sunset provision where it would be in effect for ten years, after which it could be modified or extended.

However, it was a weak ban, with many loopholes.  First of all, there was a grandfather clause that allowed manufacturers and others to sell all of their existing inventory.  Not surprisingly, manufacturers scaled up production sharply while the ban was being debated, as those inventories could later then be sold, and were.  Second and related to this, there was no constraint on shops or individuals on the sale of weapons that had been manufactured before the start date, provided just that they were legally owned at the time the law went into effect.  Third, “semiautomatic assault weapons” (which included handguns and certain shotguns, in addition to rifles such as the AR-15) were defined quite precisely in the Act.  But with that precision, gun manufacturers could make what were essentially cosmetic changes, with the new weapons then not subject to the Act.  And fourth, with the sunset provision after 10 years (i.e. to September 12, 2004), the Republican-controlled Congress of 2004 (and President George W. Bush) simply could allow the Act to expire, with nothing done to replace it.  And they did.

The ban was therefore weak.  But it is still of interest to see whether even such a weak law might have had an impact on the number of, and severity of, mass shootings during the period it was in effect.

The data used for this analysis were assembled by Mother Jones, the investigative newsmagazine and website.  The data are available for download in spreadsheet form, and is the most thorough and comprehensive such dataset publicly available.  Sadly, the US government has not assembled and made available anything similar.  A line in the Mother Jones spreadsheet is provided for each mass shooting incident in the US since 1982, with copious information on each incident (as could be gathered from contemporaneous news reports) including the weapons used when reported.  I would encourage readers to browse through the spreadsheet to get a sense of mass shootings in America, the details of which are all too often soon forgotten.  My analysis here is based on various calculations one can then derive from this raw data.

This dataset (through 2012) was used in my earlier blog post on the impact of the Assault Weapons Ban, and has now been updated with shootings through February 2018 (as I write this).  To be included, a mass shooting incident was defined by Mother Jones as a shooting in a public location (and so excluded incidents such as in a private home, which are normally domestic violence incidents), or in the context of a conventional crime (such as an armed robbery, or from gang violence), and where at least four people were killed (other than the killer himself if he also died, and note it is almost always a he).  While other possible definitions of what constitutes a “mass shooting” could be used, Mother Jones argues (and I would agree) that this definition captures well what most people would consider a “mass shooting”.  It only constitutes a small subset of all those killed by guns each year, but it is a particularly horrific set.

There was, however, one modification in the updated file, which I adjusted for.  Up through 2012, the definition was as above and included all incidents where four or more people died (other than the killer).  In 2013, the federal government started to refer to mass shootings as those events where three or more people were killed (other than the killer), and Mother Jones adopted this new criterion for the mass shootings it recorded for 2013 and later.  But this added a number of incidents that would not have been included under the earlier criterion (of four or more killed), and would bias any analysis of the trend.  Hence I excluded those cases in the charts shown here.  Including incidents with exactly three killed would have added no additional cases in 2013, but one additional in 2014, three additional in 2015, two additional in 2016, and six additional in 2017 (and none through end-February in 2018).  There would have been a total of 36 additional fatalities (three for each of the 12 additional cases), and 80 additional victims (killed and wounded).

What, then, was the impact of the assault weapons ban?  We will first look at this graphically, as trends are often best seen by eye, and then take a look at some of the numbers, as they can provide better precision.

The chart at the top of this post shows the number of mass shooting events each year from 1982 through 2017, plus for the events so far in 2018 (through end-February).  The numbers were low through the 1980s (zero, one, or two a year), but then rose.  The number of incidents per year was then generally less during the period the Assault Weapons Ban was in effect, but with the notable exceptions of 1998 (three incidents) and especially 1999 (five).  The Columbine High School shooting was in 1999, when 13 died and 24 were wounded.

The number of mass shootings then rose in the years after the ban was allowed to expire.  This was not yet fully clear when one only had data through 2012, but the more recent data shows that the trend is, sadly, clearly upward.  The data suggest that the number of mass shooting incidents were low in the 1980s but then began to rise in the early 1990s; that there was then some fallback during the decade the Assault Weapons Ban was in effect (with 1998 and 1999 as exceptions); but with the lifting of the ban the number of mass shooting incidents began to grow again.  (For those statistically minded, a simple linear regression for the full 1982 to 2017 period indicates an upward trend with a t-statistic of a highly significant 4.6 – any t-statistic of greater than 2.0 is generally taken to be statistically significant.)

C.  The Number of Fatalities and Number of Victims in Mass Shooting Incidents 

These trends are even more clear when one examines what happened to the total number of those killed each year, and the total number of victims (killed and wounded).

First, a chart of fatalities from mass shootings over time shows:

 

Fatalities fluctuated within a relatively narrow band prior to 1994, but then, with the notable exception of 1999, fell while the Assault Weapons Ban was in effect.  And they rose sharply after the ban was allowed to expire.  There is still a great deal of year to year variation, but the increase over the last decade is clear.

And for the total number of victims:

 

One again sees a significant reduction during the period the Assault Weapons Ban was in effect (with again the notable exception of 1999, and now 1998 as well).  The number of victims then rose in most years following the end of the ban, and went off the charts in 2017.  This was due largely to the Las Vegas shooting in October, 2017, where there were 604 victims of the shooter.  But even excluding the Las Vegas case, there were still 77 victims in mass shooting events in 2017, more than in any year prior to 2007 (other than 1999).

D.  The Results in Tables

One can also calculate the averages per year for the pre-ban period (13 years, from 1982 to 1994), the period of the ban (September 1994 to September 2004), and then for the post-ban period (again 13 years, from 2005 to 2017):

Number of Mass Shootings and Their Victims – Averages per Year

Avg per Year

Shootings

Fatalities

Injured

Total Victims

1982-1994

1.5

12.4

14.2

26.6

1995-2004

1.5

9.6

10.1

19.7

2005-2017

3.8

38.6

71.5

110.2

Note:  One shooting in December 2004 (following the lifting of the Assault Weapons Ban in September 2004) is combined here with the 2005 numbers.  And the single shooting in 1994 was in June, before the ban went into effect in September.

The average number of fatalities per year, as well as the number injured and hence the total number of victims, all fell during the period of the ban.  They all then jumped sharply once the ban was lifted.  While one should acknowledge that these are all correlations in time, where much else was also going on, these results are consistent with the ban having a positive effect on reducing the number killed or wounded in such mass shootings.

The number of mass shootings events per year also stabilized during the period the ban was in effect (at an average of 1.5 per year).  That is, while the number of mass shooting events was the same (per year) as before, their lethality was less.  Plus the number of mass shooting events did level off, and fell back if one compares it to the previous half-decade rather than the previous 13 year period.  They had been following a rising trend before.  And the number of mass shootings then jumped sharply after the ban was lifted.

The data also allow us to calculate the average number of victims per mass shooting event, broken down by the type of weapon used:

Average Number of Victims per Mass Shooting, by Weapon Used

Number of Shootings

Fatalities

Injured

Total Victims

Semiauto Rifle Used

26

13.0

34.6

47.6

Semiauto Rifle Not Used

59

7.5

5.6

13.1

Semiauto Handgun Used

63

10.0

17.5

27.5

Semiauto Handgun (but Not Semiautomatic Rifle) Used

48

7.7

6.0

13.7

No Semiauto Weapon Used

11

6.6

4.0

10.6

There were 26 cases where the dataset Mother Jones assembled allowed one to identify specifically that a semiautomatic rifle was used.  (Some news reports were not clear, saying only that a rifle was used.  Such cases were not counted here.)  This was out of a total of 85 mass shooting events where four or more were killed.  But the use of semiautomatic rifles proved to be especially deadly.  On average, there were 13 fatalities per mass shooting when one could positively identify that a semiautomatic rifle was used, versus 7.5 per shooting when it was not.  And there were close to 48 total victims per mass shooting on average when a semiautomatic rifle was used, versus 13 per shooting when it was not.

The figures when a semiautomatic handgun was used (from what could be identified in the news reports) are very roughly about half-way between these two.  But note that there is a great deal of overlap between mass shootings where a semiautomatic handgun was used and where a semiautomatic rifle was also used.  Mass shooters typically take multiple weapons with them as they plan out their attacks, including semiautomatic handguns along with their semiautomatic rifles.  The fourth line in the table shows the figures when a semiautomatic handgun was used but not also a semiautomatic rifle.  These figures are similar to the averages in all of the cases where a semiautomatic rifle was not used (the second line in the table).

The fewest number of fatalities and injured are, however, when no semiautomatic weapons are used at all.  Unfortunately, in only 11 of the 85 mass shootings (13%) were neither a semiautomatic rifle nor a semiautomatic handgun used.  And these 11 might include a few cases where the news reports did not permit a positive identification that a semiautomatic weapon had been used.

E.  What Would Be Needed for a Meaningful Ban

It thus appears that the 1994 Assault Weapons Ban, as weak as it was, had a positive effect on saving lives.  But as noted before, it was flawed, with a number of loopholes which meant that the “ban” was far from a true ban.  Some of these might have been oversights, or issues only learned with experience, but I suspect most reflected compromises that were necessary to get anything approved by Congress.  That will certainly remain an issue.

But if one were to draft a law addressing these issues, what are some of the measures one would include?  I will make a few suggestions here, but this list should not be viewed as anything close to comprehensive:

a)  First, there should not be a 10-year (or any period) sunset provision.  A future Congress could amend the law, or even revoke it, as with any legislation, but this would then require specific action by that future Congress.  But with a sunset provision, it is easy simply to do nothing, as the Republican-controlled Congress did in 2004.

b)  Second, with hindsight one can see that the 1994 law made a mistake by defining precisely what was considered a “semiautomatic” weapon.  This made it possible for manufacturers later to make what were essentially cosmetic changes to the weapons, and then make and sell them.  Rather, a semiautomatic weapon should be defined in any such law by its essential feature, which is that one can fire such a weapon repeatedly simply by pulling the trigger once for each shot, with the weapon loading itself.

c)  Third, fully automatic weapons (those which fire continuously as long as the trigger is pulled) have been banned since 1986 (if manufactured after May 19, 1986, the day President Reagan signed this into law).  But “bump stocks” have not been banned.  Bump stocks are devices that effectively convert a semiautomatic weapon into a fully automatic one.  Following the horrific shooting in Las Vegas on October 1, 2017, in which 58 were killed and 546 injured, and where the shooter used a bump stock to convert his semiautomatic rifles (he had many) into what were effectively fully automatic weapons, there have been calls for bump stocks to be banned.  This should be done, and indeed it is now being recognized that a change in existing law is not even necessary.  Attorney General Jeff Sessions said on February 27 that the Department of Justice is re-examining the issue, and implied that there would “soon” be an announcement by the department of regulations that recognize that a semiautomatic weapon equipped with a bump stock meets the definition of a fully automatic weapon.

d)  Fourth, a major problem with the 1994 Assault Weapons Ban, as drafted, was it only banned the sale of newly manufactured (or imported) semiautomatic weapons from the date the act was signed into law – September 13, 1994.  Manufacturers and shops could sell legally any such weapons produced before then.  Not surprisingly, manufacturers ramped up production (and imports) sharply in the months the Act was being debated in Congress, which provided then an ample supply for a substantial period after the law technically went into effect.

But one could set an earlier date of effectiveness, with the ban covering weapons manufactured or imported from that earlier date.  This is commonly done in tax law.  That is, tax laws being debated during some year will often be made effective for transactions starting from the beginning of the year, or from when the new laws were first proposed, so as not to induce negative actions designed to circumvent the purpose of the new law.

e)  Fifth, the 1994 Assault Weapons Ban allowed the sale to the public of any weapons legally owned before the law went into effect on September 13, 1994 (including all those in inventory).  This is related to, but different from, the issue discussed immediately above.  The issue here is that all such weapons, including those manufactured many years before, could then be sold and resold for as long as those weapons existed.  This could continue for decades.  And with millions of such weapons now in the US, it would be many decades before the supply of such weapons would be effectively reduced.

To accelerate this, one could instead create a government-funded program to purchase (and then destroy) any such weapons that the seller wished to dispose of.  And one would couple this with a ban on the sale of any such weapons to anyone other than the government.  There could be no valid legal objection to this as any sales would be voluntary (although I have no doubt the NRA would object), and would be consistent with the ban on the sale of any newly manufactured semiautomatic weapon.  One would also couple this with the government buying the weapons at a generous price – say the original price paid for the weapon (or the list price it then had), without any reduction for depreciation.

Semiautomatic weapons are expensive.  An assault rifle such as the AR-15 can easily cost $1,000.  And one would expect that as those with such weapons in their households grow older and more mature over time, many will recognize that such a weapon does not provide security.  Rather, numerous studies have shown (see, for example, here, here, here, and here) that those most likely to be harmed by weapons in a household are either the owners themselves or their loved ones.  As the gun owners mature, many are likely to see the danger in keeping such weapons at home, and the attractiveness of disposing of them legally at a good price.  Over time, this could lead to a substantial reduction in the type of weapons which have been used in so many of the mass shootings.

F.  Conclusion

Semiautomatic weapons are of no use in a civilian setting other than to massacre innocent people.  They are of no use in self-defense:  One does not walk down the street, or while shopping in the aisles of a Walmart or a Safeway, with an AR-15 strapped to your back.  One does not open the front door to your house each time the doorbell rings aiming an AR-15 at whoever is there.  Nor are such weapons of any use in hunting.  First, they are not terribly accurate.  And second, if one succeeded in hitting the animal with multiple shots, all one would have is a bloody mess.

Such weapons are used in the military precisely because they are good at killing people.  But for precisely the same reason as fully automatic weapons have been banned since 1986 (and tightly regulated since 1934), semiautomatic weapons should be similarly banned.

The 1994 Assault Weapons Ban sought to do this.  However, it was allowed to expire in 2004.  It also had numerous loopholes which lessened the effectiveness it could have had.  Despite this, the number of those killed and injured in mass shootings fell back substantially while that law was in effect, and then jumped after it expired.  And the number of mass shooting events per year leveled off or fell while it was in effect (depending on the period it is being compared to), and then also jumped once it expired.

There are, however, a number of ways a new law banning such weapons could be written to close off those loopholes.  A partial list is discussed above.  I fully recognize, however, that the likelihood of such a law passing in the current political environment, where Republicans control both the Senate and the House as well as the presidency, are close to nil.  One can hope that at some point in the future the political environment will change to the point where an effective ban on semiautomatic weapons can be passed.  After all, President Reagan, the hero of Republican conservatives, did sign into law the 1986 act that banned fully automatic weapons.  Sadly, I expect many more school children will die from such shootings before this will happen.

Delusional: Is This What We Are to Expect from the New Trump Administration?

Definition of delusional in English:

delusional

ADJECTIVE

Characterized by or holding idiosyncratic beliefs or impressions that are contradicted by reality or rational argument, typically as a symptom of mental disorder:

‘hospitalization for schizophrenia and delusional paranoia’

‘he was diagnosed with a delusional disorder’

 Based on or having faulty judgement; mistaken:

‘their delusional belief in the project’s merits never wavers’

‘I think the guy is being a bit delusional here’

 

Donald J. Trump was inaugurated as President of the United States at 12:00 noon on January 20.  A day later, his new White House Press Secretary and Communications Director Sean Spicer in his very first press briefing of the new administration, launched a tirade against the press, for reporting (falsely he claimed) that attendance at the inauguration was less than the number who had attended Obama’s inauguration in 2009 (or indeed any prior inauguration). And he was visibly angry about this, as can be seen both in the transcript of the press briefing, and in a video of it.  He charged that “some members of the media were engaged in deliberately false reporting” and claimed that “This was the largest audience to ever witness an inauguration — period — both in person and around the globe.”

Furthermore, after many reports challenged Spicer’s assertions, the new administration doubled down on the charges.  Reince Priebus, the new White House Chief of Staff, vowed on Sunday that the new administration will fight the media “tooth and nail every day and twice on Sunday” over what they see as unfair attacks on Trump (by claiming, falsely they say, that the crowds had been larger at Obama’s inauguration).  And Kellyanne Conway, a spokesman for the White House and Counselor to the President, said on Sunday that what Press Secretary Spicer had asserted was not wrong but rather “alternative facts”.

Finally, one has Donald Trump himself, who claimed that he saw what “looked like a million, a million and a half people” present at his inauguration as he took the oath of office. One does not know how he was able to make such a count, and perhaps he should not be taken too seriously, but his administration’s senior staff appear to be obliged to back him up.

What do we know on the size of the crowds?  One first has to acknowledge that any crowd count is difficult, and that we will never know the precise numbers.  Unless each person has been forced to pass through a turnstile, all we can have are estimates.  But we can have estimates, and they can give some sense as to the size.  Most importantly, while we might not know the absolute size, we can have a pretty good indication from photos and other sources of data what the relative sizes of two crowds likely were.

So what do we know from photos?  Here we have a side-by-side photo (taken at Obama’s first inauguration and then at Trump’s) from the top of the Washington Monument, of the crowd on the Mall witnessing the event.  They were both taken at about the same time prior to the noon swearing-in of the new president, where the ceremony starts at 11:30:


inaugeration-attendance-2017-vs-2009

 

 

 

 

 

 

 

The crowd in 2017 is clearly far smaller.  This has nothing to do with the white mats laid down to protect the grass (which was also done in 2013 for Obama’s second inauguration).  There are simply far fewer attendees.

There is also indirect evidence from the number of Metrorail riders that day.  Spicer said in his press briefing “We know that 420,000 people used the D.C. Metro public transit yesterday, which actually compares to 317,000 that used it for President Obama’s last inaugural.”  Actually these numbers are wrong, as well as misleading (since the comparison at issue is to Obama’s first inauguration in 2009, not to his second in 2013). As the Washington Post noted (with this confirmed by CNN) the correct numbers from the Washington Metropolitan Area Transit Authority (which operates the Metro system) are that there were 570,500 riders on Metro on Trump’s inauguration day, 1.1 million riders in 2009 on Obama’s first inauguration day, and 782,000 riders in 2013 on Obama’s second inauguration day.  What Trump’s press secretary said “we know” was simply wrong.

It is also simply not true that Trump drew a larger estimated TV audience than any president before.  Nielsen, the TV ratings agency, estimated that Trump drew 30.6 million viewers, while Obama drew 38 million viewers at his first inauguration.  And Reagan drew more, at 42 million viewers, for his first inauguration.  Furthermore, both Nixon (in 1973) and Carter (in 1977) drew more viewers than Trump, at 33 million and 34 million respectively. The Trump figure was far from a record.

So how many people attended Trump’s inauguration, and how does that figure compare to the number that Obama drew for his first inauguration?  A widely cited figure is that Obama drew an estimated 1.8 million for his first inauguration, but, as noted above, any such estimate must be taken as approximate.  But based on a comparison of the photos, experts estimate that Trump drew at most one-third of the Obama draw in terms of the number in attendance just on the Mall.  There were in addition many others at the Obama inaugural who were not on the Mall because they could not fit due to the crowding.

Why does this matter?  It matters only because the new Trump administration has made it into an issue, and in doing so, has made assertions that are clearly factually wrong.  Trump did not draw a record number to his inauguration, nor a record number of viewers, nor were there a record number of riders on the Washington Metro system.  These are all numbers, and they can be checked.  While we may not be able to know the precise number of those who attended, we can come to a clear conclusion on the relative size of those who attended this year versus previous recent inaugurations.  And Trump’s attendance was not at all close to the number who attended Obama’s first inaugural.

What is disconcerting is that Trump, his new Press Secretary, his Chief of Staff and others in his administration, should feel compelled to make assertions that are clearly and verifiably wrong, and then to attack the press aggressively for pointing out what we know. And this on his second day in office.  While this is not inconsistent with what the Trump team did during his campaign for the presidency, one would have hoped for more mature behavior once he took office.  And especially so for an issue which is fundamentally minor. It really does not matter much whether the number attending Trump’s inauguration was more or less than the number who had attended prior inaugurations.

Presumably (and assuming thought was given to this) they are setting a marker for what they intend to do during the course of the presidential term, with aggressive attacks on the press for reporting errors in their assertions or on contradictions with earlier statements.  If so, such a strategy, including denial of facts that can readily be verified, is truly worrisome. Facts should matter.  Not all that we will hear from the new administration will be so easy to check, and the question then is what can be believed.

Perhaps, and more worrying, they really believe their assertions on the numbers attending. If so, they are truly delusional.

Why It Is Important to Vote This November 8

trump-and-clinton-picture2-001

There is little need to repeat here the many reasons why the election of Donald Trump to the presidency (or indeed any position of authority) would be a disaster.  He has eminently disqualified himself by both his words and his actions, and I have little to add.  And there are many reasons why Hillary Clinton should be elected, not simply in order not to elect Trump.  Even her critics admit that she has the background and experience in both the executive and legislative branches of government – as First Lady (with an active role in policy discussions), as Senator from New York, and as Secretary of State for four years under President Obama –  that few candidates for the presidency could match.

Furthermore, even Donald Trump has said she is a fighter, and that is precisely what is needed if the policies that Obama has championed are to continue to move forward.  A Clinton administration will fight for action to address global warming, to moderate health care costs, to improve education, to reform immigration, to re-build our infrastructure, and more, just in the domain of domestic policy.  A Trump administration would move us backwards on each.  And I far prefer an administration that takes pride in making decisions based on what is in their head, as Obama has done, rather than based on what is in their gut, as Obama’s predecessor was proud to brag of.

As I write this, the polls indicate Hillary Clinton holds a substantial lead.  That may unfortunately have the effect of leading some share of Clinton supporters (and Trump opposers) not to bother to vote on November 8.  They may feel it would not matter, so why bother.  But there are important reasons why all those supporting Clinton, who want the country to move forward rather than backward, need to make the effort to vote.  This blog post will outline a few.

a)  Trump’s share in the vote might well be higher than what the polls indicate:  As of October 23, an average of recent polls indicates that Clinton leads Trump by about 7 percentage points nationally.  While in the US system the candidate receiving the most votes nationally is not necessarily the one elected (due to the electoral college system, so only the votes in a limited number of swing states decide the outcome, as discussed in this earlier blog post), a national margin of 7 percentage points is substantial and reflective of what is happening in the key states.

But the final vote may well be different.  First, it is common that there is a tightening in the race in the last few weeks of most American elections.  There is a good chance this might happen again here.  But second, and more fundamentally, it is important to recognize that the polls may not be assessing accurately the extent of Trump’s support.  This is not due to any kind of conspiracy, or incompetence, but rather because polling this year is particularly difficult to do well.  Trump is an especially controversial candidate, known for his racist as well as misogynist remarks in this campaign.  Some Trump supporters might not admit to a pollster that they support him.  His true support might be several percentage points higher than what the polls indicate, and there are indications that this may have been an issue during the polling for the primaries in at least some of the states. I am not saying that it necessarily is now, but rather that we just do not know.

b)  A focus by Trump on high turnout of his base, instead of a broadening of his base, is not an unreasonable strategy:  Most major party candidates for the presidency seek to broaden their base of support as the election approaches by appealing to the middle.  Trump has not done this.  His focus has been and continues to be on energizing his base, with a continued use of extremist remarks to stoke concerns (the election is rigged, Hillary is a crook whom I will throw into jail, I won’t necessarily accept the results of the election unless they show I won, and so on).

With a base of support that is well less than 50% (even if one discounts the polls to a significant extent; see above), such a strategy might be seen as making it impossible to win.  The moderate middle is not attracted, but indeed repelled.  But it is not necessarily an unreasonable strategy.

The key is to recognize that a very high share of eligible Americans do not vote.  In the 2012 presidential election, only 58% of the population that were eligible to vote in fact cast a ballot for the presidency.  If Trump is able to energize his base and get a high share of them to vote, they can end up winning.

This can be illustrated with some numbers.  Using the polling averages as worked out by the Huffington Post, and rescaling to remove the undecideds, then as of October 23, polling indicated that Clinton would receive 48% of the vote and Trump 41% (with others receiving 11%, primarily Gary Johnson of the Libertarians and Jill Stein of the Greens).  To arrive at these numbers, pollsters used various methods to try to take into account the likelihood that those being polled would actually vote.  But none of these methods are very good.  Some pollsters ask the individual whether they voted in the previous election. However, the share saying they voted is always substantially higher than the share we know actually did vote.  Or some pollsters adjust the figures based on patterns for the share of those who voted in the past who have a similar income or education level, or are of the same ethnic group, or some other such grouping (using exit polling).  But this also does not work very well since the share of different groups who vote changes from election to election depending on the candidates and other issues.

For the purposes here, which are simply illustrative, let’s assume that these polling numbers reflect accurately the share of the population who prefer each of the candidates, but not necessarily the shares of those who actually will vote.  Furthermore, let’s assume that 53% of Clinton’s supporters will actually vote while 63% of Trump’s supporters will (recall the actual average in 2012 was 58%).  Multiplying out the numbers to get those who actually will vote, one finds that Trump in such a scenario would receive a higher share of the vote than Clinton:

Supporters

Turnout

Voters

Share of Vote

Clinton

48%

53%

25.44

44.1%

Trump

41%

63%

25.83

44.8%

Other

11%

58%

6.38

11.1%

All

100%

 

57.65

100.0%

Turnout matters.  A strategy focussed on turning out a high share of your base supporters, by energizing them through extremist rhetoric with no suggestion of compromise, is not necessarily an irrational one, even if it means losing the more moderate voters.  You could end up with more votes than your opponent.

c)  The winning margin matters for Trump to accept the result of the election:  If Hillary Clinton wins the election, but by a relatively narrow margin, Trump has said that he will not necessarily accept the result.  Trump made this clear in the third presidential debate, and has repeated his remarks since then despite of, and in the face of, strong criticism.  An important strength of American democracy, which distinguishes it from what is seen in a number of other countries around the world, is that the loser of the election concedes and accepts the result.  It might take some time (and court challenges) to determine the winner, but in the end the loser has always graciously accepted the decision (as Al Gore did in 2000).

Trump has been intentionally ambiguous on whether he will.  But the larger the margin by which he loses, the more difficult it will be for him to contest the results.

d)  The winning margin matters for the Republicans to move on:  Trump has upended the national Republican Party by capturing a base, primarily of angry white males with less than a college education, who have said they are willing to take extreme measures to get what they want.  If Trump loses, but by a relatively narrow margin, one can be sure that there will be Trump-like candidates seeking the Republican nomination in 2020, and perhaps even Trump himself.

Strong supporters of the Democrats might feel that this may not be so bad.  Such a candidate would likely lose again.  But that would be short-sighted.  Democracies need a multi-party system, with at least two responsible parties that can each govern responsibly. One-party states, whether in Japan or elsewhere, end up in difficulty.  And one-party states are indeed rare.  Eventually, an opposition party wins, as the electorate tires of those in power and as those long in power become increasingly ineffective.

American democracy needs a responsible opposition party.  Republicans at the national level are not providing that now, and that is a problem for all of us.

e)  The winning margin matters for Clinton to govern effectively:  Everyone agrees that there is much that needs to be done.  But opponents of the measures a Clinton administration would promote to move the  country forward would be emboldened in their opposition should Clinton win by a relatively narrow margin.  The larger the margin, the more difficult it will be for her opponents to block her proposals.

f)  There is an innate inconsistency to be opposed to Washington gridlock, but also to be in favor of divided government:  Everyone agrees that gridlock in Washington is bad.  The country needs to move forward in numerous areas, but gridlock is blocking it.  At the same time, political scientists have long observed (and backed up in their research) that voters often prefer “balanced” government, where the executive branch is controlled by one party with the legislature by the other.

This arrangement may have worked well in periods in the past.  With the system of checks and balances built in to the US Constitution, one branch of government cannot change much alone, but must also receive the support of the other branches (with the judiciary playing an essential, but separate, role as well).

This changed, however, over the last two decades.  Rather than seek common ground on measures, with compromises in order to move things forward, Republicans in Congress decided to adopt a position of opposition.  As documented in the excellent book of Thomas Mann and Norman Ornstein, It’s Even Worse Than It Looks, Republicans decided that if the administration supported something, they would be opposed.  This applied even on measures that they themselves had originally proposed.  The authors, one based at the left-of-center Brookings Institution and one at the right-of-center American Enterprise Institute, provide numerous examples.

Such opposition continues.  Last week, Senator John McCain (who at one time was considered a relative moderate among Republicans) said on a radio talk show that he and his colleagues will oppose any Supreme Court nominee of Hillary Clinton.  He said “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. … I promise you.”  While a spokeswoman later sought to moderate his position, it does not appear that his views had in fact changed.

Such an approach to government, of united opposition to any proposals put forward by the chief executive, can work in a different form of government.  In parliamentary systems (such as in the UK), the opposition party will typically oppose any measures put forward by the prime minister.  But the prime minister represents a majority in parliament, and hence with party line votes the measure will pass.

But the US Constitution did not establish a parliamentary form of government.  Rather, the system set up by the US Constitution has an independently elected president, along with certain powers assigned to the legislature (such as to make laws, pass a budget, provide “advice and consent” on judicial and senior executive branch appointments, and more).  It is a system of checks and balances, and does not work well when one party decides to act like the opposition in a parliamentary system and routinely oppose measures proposed by the chief executive.

A large winning margin by Hillary Clinton will make it more difficult for a Republican majority to continue to act in this way, at least at the start of the new administration.  And while it is conceivable that the Democrats might win control of the Senate (they need to pick up a net of four seats, assuming Clinton wins so that Vice President Tim Kaine will have the tie-breaking vote), it is doubtful they will pick up the net of 30 seats required to win control of the House.  Too many seats have been gerrymandered.

Voters can resolve this by not voting for divided government, but rather for one party.  And if that party is not to be the one with Trump as president, that means the Democrats. What will not resolve the issues would be to vote for Clinton, but then vote for Republican candidates for the House and the Senate, including those who have sought to keep their distance from Trump, with a number saying they will not themselves vote for Trump.  But it is not really that vote that matters.  What matters is the vote they will take for the leadership of the House or the Senate, and whether that leadership says that they will oppose anything being proposed by Clinton, as they have for Obama.  If so, then gridlock will continue.

Conclusion

It would be surprising if Hillary Clinton were not to win this election.  I do not expect her to lose.  But it should be recognized that it is possible.  While the polls put her comfortably ahead as I write this, polls can be wrong, for reasons discussed above.  And we have seen two major such cases already this year.  Most expected British voters would reject the proposal in the June referendum to leave the European Union (Brexit).  Most polls indicated the vote would be in favor of staying.  Instead, it lost, and by the substantial margin of 52% to leave and 48% to stay.

To be fair, the polls in the Brexit referendum were relatively close, especially just before the day of the vote.  A better example of how the polls can be wrong in a major way was the vote in Colombia on October 2 on whether to accept the peace accord the government had negotiated with the FARC rebel army.  The war had been going on for decades, and about 220,000 Colombians had died over the years.  Polls before the vote indicated that over 60% of Colombians would vote in favor of the accord.  But it narrowly lost, by 50.2% to 49.8%.  It is not clear why, although there are many theories.  But one important factor was turnout.  Only 37% of eligible Colombian voters actually voted, perhaps because they believed the peace accord would win easily.  Voter turnout was especially hurt along the country’s Caribbean coast, where a hurricane, while it remained off shore, nonetheless delivered heavy rains on the day of the vote.  Support for the peace accord was especially high in that region, but turnout was low.

I would not predict that the polls in the US presidential elections are wrong, but that there can be uncertainties.  This is especially so this year.  And, for reasons discussed above, the issue is not only who will win or lose, but also what the winning margin will be.  So vote this November 8, and vote for Hillary Clinton.

 

Bringing Democracy to America: The Popular Vote Should Determine Who Wins the Presidency

Map of Battleground States in 2012

A.  Introduction

The US is once again in the middle of a presidential election, with possible consequences this time that are more worrying than ever.  And once again it is an election where the candidates focus their attention on a limited sub-set of US states – those states where the result is expected to be relatively close and winnable by a candidate if given sufficient attention. This is a consequence of the unique US system where presidents are selected not by who receives the most votes in the nation, but rather by who wins a plurality of votes in individual states whose electoral college votes sum to 270 or more (i.e. more than half of the total 538 electoral votes allocated across the nation).  It does not matter if the candidate wins the state by a little or a lot; they receive the same number of electoral votes from the state regardless.

Hence if a candidate is almost certain to win a state, as well as if they are almost certain to lose a state, it makes no sense to campaign there.  They gain nothing by winning by somewhat more, or by losing by somewhat less.  Total votes in the nation by the population do not count; only electoral votes count, and these are won at the state level.

This is not a democratic system, and no other democratic country in the world with a president with substantial real powers selects their president this way.  There are systems in some countries with a parliamentary form of government (where the party with a majority of seats in the parliament selects the prime minister) that might be seen as somewhat similar to an electoral college.  But in such situations, the president is largely or totally a figurehead.  In no other democratic country where the president is the head of the executive branch, other than the US, does one select that president other than through a popular vote of the entire nation.

Until recently, I had thought there was nothing one could do about this in the US other than through a constitutional amendment.  And a constitutional amendment on such an issue with divided interests, especially in the current political environment, is a non-starter. But there is in fact an initiative, already well underway, that would resolve this problem through a compact being reached across states that have at least 270 electoral votes between them.  It is actually pretty ingenious, and might well pass.  It is certainly in the interest of the three-quarters of the states that are not swing states to see it approved.

This blog post will first review some of the problems that come out of the current electoral college system.  It will then describe the National Popular Vote Interstate Compact, where an agreement would be reached to ensure electoral votes are cast for the candidate receiving the most votes nationally, and not necessarily the most votes in the individual state.  The benefits of such a system will then be examined, as well as the politics of whether or not it will ultimately be approved.

B.  The Problems With the Current Electoral College System

a)  It is Not Democracy

To start, the current system is not democratic.  Electoral votes are allocated by state to be equal to the number of congressmen from that state plus two (equal to the number of senators from each state).  There are 538 electoral votes, the sum of 435 Congressmen, 100 Senators, and 3 electoral votes granted to Washington, DC, by the 23rd amendment to the Constitution (ratified in 1961).

The result is that voters in a state like Wyoming, a small state with fewer voters even than Washington, DC, have a disproportionate share of influence in the electoral college and hence in the selection of the president.  In 2012, the voting-eligible population (VEP, equal to the voting age population of the state, less non-citizens and felons ineligible to vote) of Wyoming was 425,142.  With 3 electoral votes, Wyoming had 141,714 voters per electoral vote.

In contrast, the voting-eligible population of California in 2012 was 23,681,837 for 55 electoral votes.  Thus there were 430,579 voters in California for each of its electoral votes. That is, there were almost exactly 3 times as many voters in California per electoral vote as there were in Wyoming.  Each vote in California counted only one-third as much.  This is not democracy.  In a democracy, each vote counts the same.

It should be noted that the framers of the Constitution in 1787 never presented the selection of the US President via the electoral college as being democratic.  Congressmen were selected democratically, by popular vote.  But senators were appointed by state legislatures not by popular vote (until the 17th amendment to the Constitution was ratified in 1913) and presidents were chosen through the electoral college process.  There was an open and explicit decision to by-pass a popular vote for the president as a requirement (although that remained as an option within each state), where it was left up to each state to decide how the electors representing that state would be chosen.  Article II, Section 1, Paragraph 2, of the Constitution reads:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

That is, it leaves the method to be used in a state up to the legislature of that state, with the only constraint being that the electors may not be a US Senator, a US Congressman, or a federal government official.

Not surprisingly, the states used a variety of ways initially to choose their electors.  In 1789 (when George Washington was ultimately chosen as president), there were direct popular at-large votes within a state to choose the electors in only two of the states (Maryland and Pennsylvania), and popular votes but by specially drawn districts within the states in two more (Delaware and Virginia).  The electors were simply chosen directly by the state legislatures in four of the states, and two states had hybrid systems where the voters chose a list of possible electors and the state legislatures then chose the specific electors from those lists.  Finally, one state (New York) could not decide in time what to do, and hence did nothing.  Two more (North Carolina and Rhode Island), did not accede to the Constitution until after the process was over.

In the early years of the republic, states frequently changed their system of choosing electors.  But over time, states shifted to systems where their state population would vote for their electors, as is now the case in all states (with Maine and Nebraska choosing them by votes in individual congressional districts, plus two for the winner of the state-wide vote).  The election of 1824 is generally taken as the first election where the popular vote totals were meaningful (even though in that year, 6 of the then 24 states still had their electors chosen by their legislatures).  Indeed, it appears that there is not even any record of what the vote totals were (in the states where votes were used) in the elections before 1824.

As noted, the framers of the Constitution never viewed this system as democratic.  It was only later that the myth grew that the US is a great democracy, including in how it elects the most important official in the land.  We don’t, and this should be recognized.

b)  A Candidate Can Be Elected President Even Though He or She Received Fewer Votes

Directly following from the fact the current system is not democratic, is the possible consequence that whomever receives the most votes might not win the presidency.  It is worth flagging this separately only because many believe that while this is theoretically possible, in practice it has been and would be so rare that we should not worry about it.

The results of the 2000 election between George Bush and Al Gore did serve to wake people up that this result is indeed possible in modern times.  Al Gore won the nation-wide popular vote over Bush by a not so small 0.5% points (544,000 votes), but lost due to a loss in Florida.

Furthermore, the loss in Florida was by just 537 votes, or 0.01% of the votes cast in that state.  But this loss was due to the use of the terribly designed and now infamous “butterfly ballot” in Palm Beach County (and only that county), where to vote for Al Gore, whose name appeared second on the ballot, one had to punch the third hole in the column to the right of his name.  Punching the second hole would be a vote for Pat Buchanan, a minor third party candidate who received only 0.4% of the votes in the country.  A careful statistical analysis of the Palm Beach County results indicate that at least 2,000 votes intended for Al Gore mistakenly went to Buchanan.  This was far more than the 537 vote state-wide margin.  Without this confusing ballot in just one county, Al Gore would have won Florida and the presidency.

The impact of the Florida result on the 2000 election is well known.  And if it were not for the electoral college system, where electoral votes are allocated by state and with winner-take-all in each individual state or district, there would not have been such an impact from one poorly designed ballot in one county of one state.  Al Gore won the popular vote in the country by over a half million votes, and a badly designed ballot in one jurisdiction would not have mattered.

And it is in fact not so rare that there might be an election where the winner of the electoral vote lost the popular vote.  Aside from the 2000 election, there were three other such cases in American history (although all were in the 1800s).  Thus in the 48 presidential elections since 1824 (the first election where, as discussed above, the popular vote at the state level was meaningful), there have been four cases where the person elected president received fewer votes than his opponent.  That is, in one of 12 cases (4 in 48) the loser of the popular vote still became president.  One in 12 cases means, on average, that one might expect there to be such a case every 48 years or so, given the four-year presidential terms.  That is, each voter should expect this to happen about once in their voting lifetimes.  That is not uncommon.

c)  Focus Only on the Swing States

Beyond any statement of principle, there are also other, and highly important, problems stemming from the current system.  As a direct consequence of the current system, presidential candidates and their campaigns will focus their efforts and policy commitments not on the nation as a whole, but only on the limited number of swing states (also referred to as battleground states) where the race is so tight that the victor is not clear.

While most are aware of this focus, the extent of the focus may be surprising.  While the definition of precisely which states might be considered swing states will differ a bit between analysts, and especially for those states near the margin between being considered a swing state or not, there is actually a surprising degree of consensus.  For the 2012 presidential election, 11 states were considered by most as swing states.  They are shown in brown in the map at the top of this post.  The only real debate is whether Michigan should be included, thus leading to 10 swing states.  And some might have substituted Minnesota for Michigan.

These 11 states made up 22% of the voting jurisdictions (50 states plus DC) in the nation, 27% of the voting eligible population, and also 27% of the electoral votes:

11 Swing States

Shares in Nation in 2012:

% Share

Number of States (and DC)

22%

Voting Eligible Population

27%

Electoral Votes

27%

Campaign Events

99.6%

TV Ad Spending

99.8%

But these 11 states accounted for 99.6% of the campaign events held in the presidential campaigns in 2012, and 99.8% of the TV ad spending!  The rest of the country simply did not matter, and was ignored.

This also had consequences for voter turnout.  For the largely same set of 10 swing states considered to be battlegrounds in 2012 (the list of 11 above less Michigan), voter turnout has increased steadily over time relative to turnout in the non-swing 40 states plus DC:

10 Swing States of 2012 vs. Rest:

Difference in Turnout in % Points

1996

0.1%

2000

1.2%

2004

4.4%

2008

5.2%

2012

7.4%

In 1996, when a number of the states considered to be battlegrounds in 2012 were not so before (as the list evolves, but slowly, over time), voter turnout was essentially the same as in the rest of the country (51.5% in this set of 10 states vs. 51.4%).  But as these states became increasingly seen as competitive, with increased attention then afforded to them and with voters increasingly recognizing that their votes there could indeed matter, the turnout differential grew steadily, reaching a difference of 7.4% points in 2012.  This is a big difference.

A different study made use of the fact that the states considered to be swing or battleground states do evolve over time, and looked at how much voter turnout then shifted based on whether the states gained or lost battleground status:

Difference in % Points

Shifts in Voter Turnout:

2004 to 2008

2008 to 2012

Gained Battleground Status

+5.2%

no cases

Lost Battleground Status

-2.0%

-4.9%

Stayed Battleground

+1.0%

-1.0%

Stayed Spectator

+1.0%

-3.7%

Nation as a Whole

+1.5%

-3.6%

States that gained battleground status in the 2008 election saw their turnout jump by 5.2% points, when national turnout rose by only 1.5% points.  There were no such cases in 2012.  States that lost battleground status saw their turnout drop by 2% points in 2008 and by 4.9% points in 2012.  Other states had smaller changes.

It should not be surprising that fewer people vote if they believe their vote does not count. And for a presidential election, if you do not live in a battleground state, it most certainly does not matter:  One candidate or the other is certain to win that state.  But while this is a problem in itself, there are important implications for the other offices up for election in that year.  Fewer people will vote in the non-battleground states in the congressional and senate races, and for the various state and local offices and referenda that might also be on the ballot.

d)  People Want the President to be Selected by Popular Vote

Finally, doing away with the electoral college and selecting the president by popular vote is overwhelmingly favored by the population.  For example, a Gallup Poll from January 2013 found that 63% are in favor of such a reform:

Gallup Poll, January 2013

Do Away With Electoral College

In Favor

Opposed

No Opinion

All

63%

29%

8%

Republicans

61%

30%

9%

Independents

63%

29%

8%

Democrats

66%

30%

4%

What is perhaps surprising is that such support is basically identical between Republicans, Independents, and Democrats.  This is not a partisan issue.

Other polls have found similar results (see for example this poll, specifically question # 22).

C.  The National Popular Vote Interstate Compact

While the problems with the electoral college system have long been recognized, most (including myself) thought until recently that a constitutional amendment would be required to change it.  But in fact that is not so.  Following the 2000 election debacle, Professor Roger Bennett of Northwestern University Law School pointed out that the US Constitution (in its Article II, Section 1, Paragraph 2, quoted above) gives state legislatures the power to decide how electors will be chosen in their state.  States could use this power to choose a slate of electors pledged not to the presidential candidate who received the most votes within their own state, but rather pledged to the presidential candidate who received the most votes in the nation.

This is simple and clear, and provided states with electoral votes that sum to 270 or more agree, we could have the democratic election of the president where the candidate who gets most votes nationally, will win.  The mechanism is the approval in each state of legislation that would commit that state, provided other states holding 270 or more electoral votes also agree, to select electors from the slate committed to the candidate that wins the most votes nationally.  So far ten states plus Washington, DC, have approved and signed such legislation.  They hold 165 electoral votes between them, and approvals include from such large states as California and New York.

Not only does this approach by-pass the need for a new constitutional amendment, but it also does not give a veto right to the small number of states who benefit from the current system.  For a swing state, and particularly for a small swing state, the current system has its advantages.  Presidential candidates are forced to pay special attention to you, and to grant you special favors that others may not enjoy and which could indeed cost others. But the system effectively ignores the voters in more than three-quarters of the states, and the National Popular Vote initiative is a mechanism to restore their democratic rights.  One should not want to grant a veto right to this to a small number of swing states who benefit from the current system.

D.  The Benefits of a Selecting the President by National Popular Vote

The benefits of selecting the president by a national popular vote are clear, and include:

  1. It is democratic.
  2. Votes would count the same across the nation.  Currently, a vote in California counts only one-third as much as a vote in Wyoming in terms of electoral votes.
  3. It would end the possibility that a candidate receiving more votes than another would nonetheless lose the election, as happened in Bush vs. Gore in 2000 and three other times in US history.
  4. There would be less incentive than now for states like North Carolina, Florida, and Pennsylvania to try to introduce measures to selectively disenfranchise targeted voters (such as the poor or from minority groups) through voter ID and similar restrictions.  Such voter disenfranchisement measures can be effective at the margin, where by shifting voting shares by a few percentage points in the state the favored candidate might win that state.  But if what now matters is the total votes cast in the nation, a swing of a few percentage points in a few states such as Florida are less likely to decide the outcome.  I should add, however, that while there would be less of an incentive to introduce such voting measures for elections for the president, the incentive would remain for state and local offices.

But perhaps the biggest concrete impact would be the impact of such a reform on how candidates run for office.  Instead of focusing almost all of their attention on a limited number of swing states, they would now have a reason to campaign across the entire nation.  Their aim would be to pick up votes wherever they can.  Thus a Republican would want to campaign in states like California, New York, and Massachusetts.  While he might not expect to win a majority in such a state, there are a large number of potential Republican voters in such states whom he would want to encourage to go out and vote. Similarly, a Democrat would have an incentive to campaign in states like Texas and Alabama.  Their aim would be to campaign wherever they might gain a significant number of votes, including in states where they might well still expect not to receive a majority overall.

This would change the dynamics of US presidential campaigns, and in a good way. Three-quarters of the nation would not be neglected.

E.  The Politics of the Proposal

As noted above the National Popular Vote Interstate Compact has now seen legislation passed and signed in ten states plus Washington, DC, who between them have 165 electoral votes. Maryland was the first (in 2007) and New York the most recent (in 2014).   Unfortunately for the politics of this, all the states (including DC) who have passed this are strong “blue” (Democratic leaning) states.  No red states have as yet passed it, although such legislation has been passed in one but not both of the legislative chambers in red states such as Arizona, Arkansas, and Oklahoma.

Many Republicans appear to believe that selection of the president by popular vote would not be of benefit to them.  But this is not at all clear.  First, it is quite possible that more Republican votes would be gained on a net basis in states like California, New York, Illinois, and others, than would be gained on a net basis by Democrats in states like Texas. It is very difficult to predict what the net impact on votes will be because, as noted above, the focus of attention of the election campaigns would then be totally different than what it is now.  While one could safely predict that voter turnout will rise (it is abysmally poor in the US), whether the fact that all votes would count (and count equally) would favor one party or the other is not at all clear.

But what is clear is that under the current electoral college system, many observers have concluded that the Democrats have a clear electoral vote advantage over the Republicans. While there are various ways that they have come to this conclusion, one example is based on an examination of which states have voted for the Democrat in every one of the six presidential elections since 1992, in comparison to the states that have every time voted for the Republican.  The Democrats have a huge electoral college advantage by this measure, with 19 states plus Washington, DC, having always voted for the Democratic candidate since 1992, with 242 electoral votes between them.  This has been called the “Blue Wall”.  Starting from this as a base, a win just in also Florida (with its 29 electoral votes) will hand the election to the Democrat (with a minimum of 271 electoral votes, even if no other state is won).  The Republicans, in contrast, have consistently won only 13 states since 1992, with just 102 electoral votes.  It is a far bigger reach for them to get to 271 electoral  votes from this base.

While there are also critics of this specific measure of the Blue Wall, most commentators agree the Democrats do have a major electoral college advantage.  It is then not at all clear that Republicans should oppose a reform where the president would be chosen by a nation-wide popular vote instead.  Presidential elections have generally been won or lost by only a few percentage points when measured in terms of the popular vote (in years other than when there was a major third party candidate, such as Ross Perot in 1992).

Tellingly, even Newt Gingrich, the former Speaker of the House, former presidential candidate, and close advisor to Donald Trump, has endorsed the National Popular Vote initiative.  Newt Gingrich is highly political.  One would not expect him to do this if he saw it to be other than an advantage for the Republicans.

F.  Conclusion

The electoral college system might well have made sense in 1788, when the US Constitution was ratified.  But that does not mean it makes sense now.  While a formal constitutional amendment might well be a preferable solution, the current politics in Washington means that any amendment process would not go far.

But the US Constitution does specifically provide the state legislatures the flexibility to decide how their electors are to be chosen.  States can use that flexibility to direct that the slate of electors for that state will be the slate committed to the candidate who receives the most votes in the nation, rather than in the individual state.  And the states can agree that they will begin to abide by this process when, and only when, states with a minimum of 270 electoral college votes have agreed.

This is thus eminently doable.  However, while states with 165 electoral votes have already approved this initiative, there is a need for states with a further 105 electoral votes also to agree.  This will not happen until Republican controlled states recognize that this reform is as much in their interest as it is for others.