The Electoral Vote System Is Absurd, but It's the Law

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The Giants won the World Series using the designated hitter. The next president will be chosen through the electoral college. In both cases, it's a win, fair and square.

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Ryan Theriot, hypocrite-in-chief? (Mark Blinch/Reuters)

Rich in history, strong in heart, the San Francisco Giants play for one of America's most lovable cities in one of America's most exquisite ballparks.

Nonetheless, I must suggest -- no, demand -- that the Giants be stripped of the 2012 World Series Title.

They cheated.

Sort of. Well, no, not really cheated. But they were hypocrites.

The Giants won game four of the Series on a 10th-inning run by Ryan Theriot. Theriot singled, moved to second on a sacrifice by Brandon Crawford, and romped home after Mario Scutaro singled to center field.

What's the problem?

Theriot was playing designated hitter.

The Giants are a National League team. NL players and fans (I'm one) don't believe in the designated hitter. It spoils the purity of the game. It pampers overpaid, overage hitters in the autumn of their careers. Ty Cobb would have scorned it. It's generally no good, wimpy, newfangled.

So the Giants cannot "earn" a title by relying on the DH rule. Better luck next time, fellas -- and next time, play fair.

Of course, technically speaking, use of the DH in the World Series is permitted by Major League Baseball's Rule 6.10(a)(1) when the game is being played in the home stadium of an American League team. Game Four was played at Comerica Park. The Giants were following the rules, and they won.

So what? They are hypocrites, and I am sure polling results can be found somewhere to support my position that they should lose their crown. True, they might still have won with no DH rule, but they didn't, and they should lose.

These reflections are spurred by the rumbles that the results of Tuesday's election should be determined not by the number of electoral votes (EVs) won by each candidate, but by the tally in the popular vote. In an NPR Weekend Edition Saturday interview with Obama campaign spokesman Ben LaBolt, host Scott Simon belabored LaBolt with implied charges of hypocrisy for believing that Obama should win if he gets 270 electoral votes. In 2004, Senate candidate Obama had told a forum that the electoral-college system is "breaking down." Surely, Simon said, that means the president must believe that "people in the electoral college ought to vote for the winner of the popular vote." A few days later, a Washington Post poll revealed that the majority of its likely-voter sample believes that the winner of the popular vote should be the winner of the election.

If there is a split between the popular vote and the electoral vote on Tuesday, we can expect to hear more of this. But no matter from which side it comes, the idea that this election should be decided after the fact on the popular vote is as silly as the idea of stripping the Giants of their Series title -- and far more dangerous.

A couple of preliminary points. First, I would be very surprised if the popular vote and electoral vote are split. The apparent discrepancy between state and national polls, I think, is most likely an artifact of various sampling techniques. Nate Silver of FiveThirtyEight puts the chance of a split at about 6.4 percent.

Second, a split might benefit either Obama or Romney. According to Silver, there's a 2 percent chance Obama will win the popular vote but lose the electors, and a 4.4 chance that it will be Romney who does so: roughly two-thirds/one-third. I know which candidate I am voting for, but I am writing about this issue behind the veil of ignorance.

Third, there is absolutely nothing bad you can say about the electoral college that I won't agree with. With the exception of the Fugitive Slave Clause, the electoral voting system is the Framers' worst handiwork. It was created largely to protect the interests of slave-owning parts of the country. It has never worked right. It first brought the country to the edge of violence in 1800. It has produced popular-vote-losing presidents four times -- 1824, 1876, 1888, and 2000 -- and came close to doing so in 2004. It allows obscure individuals (Quick! Can you name one person of any party on your home state's electoral ballot?) to apply their own whims instead of the will of their state's voters. (Electors run as "pledged" to one candidate, but can, and sometimes do, vote for another just because they want to.)

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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