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.)

Equally important, it doesn't produce any corresponding benefit. At all. My students learn in high school civics that the system "protects" the small states. But that's not true and, as Yale Professor Akhil Reed Amar demonstrated in his book, America's Constitution: A Biography, it has never been true. If you think the system benefits "small states," then please say hello to your fellow citizens from Vermont and Wyoming, neither one of which sees a national candidate from cycle to cycle. The system benefits a shifting set of "swing states." Some are big -- Ohio, seventh largest -- and others are small -- New Hampshire, 42nd; they are alike only in being narrowly divided in a given year. The attention they get is not only unfair, it's irrational.

So why am I sticking up for the electoral college in 2012?

Because it is the law.

In fact, according to Article VI, § 2 of the Constitution, it is "the supreme Law of the Land" -- anything in the Washington Post-ABC News tracking poll to the contrary notwithstanding.

Because it's the law, following it represents basic fairness at this point in the election. Each side has created a strategy aimed not at producing a popular majority but at producing 270 electoral votes. (Consider Andy Borowitz's quip that "both Obama and Romney must now spend hundreds of hours and millions of dollars to become President of Ohio.") If the popular vote determined the outcome, the candidates would both have run far different campaigns. Romney would have spent time in Texas and the Cotton South, running up red-state turnout, while Obama would have worked Illinois, California, and the Northeast, because that's where his votes are. As a result, we can't say that the popular vote Tuesday is the "will of the people." It's the result of the electoral system, and is meaningless if we treat it as anything else.

Finally, since the electoral vote system is required by the Constitution in 2012, trying to select the president by any other means -- say, by ginning up faux outrage on cable news and partisan blogs about the inequities of the electoral vote system -- would be lawless. It is an attempted coup d'état. It puts the advantage of one party over the general stability and legitimacy of the American system of government.

And that is true regardless of which party might benefit from a switch a few days hence.

Is it possible that our recurring near-death experiences with the electoral college might eventually spur a bipartisan move to reform it? We can only hope so. The "college" is a loaded cannon rolling across democracy's deck. Senate candidate Barack Obama was right to question it; Scott Simon was wrong to suggest that, having once done so, he isn't allowed to win under the system we actually have.

The DH rule should be changed too. But had it been changed before October 2012, I suspect the Giants would have found a way to win. That's why we call them the champions of the world.

The winner of the electoral vote is also called by a technical title:

Mr. President.

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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, and is the author of American Epic: Reading the U.S. Constitution.

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