# Efficiency and Legitimacy

Joe Biden is becoming more efficient. At least based on recent polls. His weighted average in national surveys is +6.8%. If the election were today and the polls are correct, his tipping point state (the one that would put him to/over 270) is Pennsylvania. He leads by 4.6% on average. He’s got a gap of 2.2 points between his national number and the one that actually matters. You can think of this as an efficiency measure.

It’s pretty much impossible to game the Electoral College in such a way that a candidate could lose the popular vote by more than 6 points, yet still triumph. If not impossible, it’s a 1 in 100 thing that we can ignore for the purposes of doing a little math. An election where the tipping point state and national popular vote exactly match is perfectly efficient. We’ll give this an index number of 100. If a candidate would need to win the popular vote by 6 points or more, we’ll give that a 0. That’s as inefficient as you can be.

For the candidate who could lose the popular vote by up to 6 points and still win, they’d get an index of 200. No matter how you calculate, there are a total of 200 index points to split between the candidates, so that the average is always 100. Based on current numbers, Biden’s index number is 63, while Donald Trump’s is 137.

Here’s what the past several elections look like by this measure:

2016: Trump 147, Clinton 53

2012: Obama 125, Romney 75

2008: Obama 137, Romney 63

2004: Kerry 107, Bush 93

2000: Bush 108, Gore 92

1996: Clinton 112, Dole 88

1992: Bush 115, Clinton 85

Average: Democrat 101.58, Republican 98.42

There is no long term Electoral College advantage for either side. It couldn’t possibly be closer. Trump is going to have a pretty decent to large advantage this year, but this balances out the two elections where Barack Obama had a clear advantage. Both George W. Bush and Bill Clinton had a mild edge in one election and a mild disadvantage in the other.

What if 2016 was the start of something new? A lot of states are very locked in as red or blue. At least it seems this way. Could Republicans enjoy a similar or even larger advantage for the next several elections?

Sure.

There’s precedent. From 1936 to 1948, Republicans were working with a very favorable Electoral College. Look at this:

1948: Dewey 168, Truman 32

1944: Dewey 142, FDR 58

1940: Willkie 152, FDR 48

1936: Landon 170, FDR 30

What’s that? You don’t recall learning about the huge controversy of an electoral map that made life almost impossible for Democrats? Wasn’t going to happen with the Democrats winning every election. The next time the popular vote was truly close, 1960, the EC favored the Democrat, JFK. Should Trump lose the popular vote by two, three, even four points, and win the election, there’s nothing historically weird about this.

But there is a legitimacy problem. Nobody cares about that 1960 election anymore. It was basically a tie. The EC favored Kennedy. The results in Illinois and Texas were highly questionable. Richard Nixon was encouraged to contest the election, and while he passed, there is a direct line from what happened here to the steps he took to ensure his 1968 election and 1972 re-election.

Many people do remember 2000. It was also an effective tie. This time the Republican won. I’d call it karmic justice. Whatever Richard Daley might have done in Cook County, IL, or LBJ saw to in Texas, forty years later, a messy ballot design in Broward County, FL led to a bunch of elderly Jews voting for the anti-Semitic Pat Buchanan instead of Al Gore.

Bad enough that the GOP-favoring outcome is the one in more recent memory. Add to that 2016, where Trump became the first candidate to win the EC while losing the popular vote by more than a point since 1876. That it hadn’t happened in 140 years was pure luck. Nonetheless, it makes Trump’s win stand out, and combined with Russian interference, left a very bad taste with a voter base that remembers 2000 and thinks the EC is stacked against them, Obama’s edge being hidden by his clean wins.

Even if Trump were less controversial, it would be tough to sell Democrats on a repeat of 2016. Particularly if Biden were to win the popular vote by 4 or 5 points while losing. Then you add in the chaos of new voting procedures in most states, legitimate concern about access in minority precincts, and whatever is happening at the Post Office. And it’s not like Vladimir Putin is taking this election off.

I’d have written this post at some point even if RBG were still alive. The legitimacy issue was already there. If you combine the above with Mitch McConnell and friends pushing through a hypocritical confirmation of a conservative justice, the foundation upon which the Constitution was built is in question. It’s not just the Electoral College in lieu of a national popular vote. There’s also the two senators per state thing.

While the EC continues to balance itself out over any several election period, Congress is another matter. California has two senators. Twenty-two mostly red states have 44 senators. Duh, you say. Ok. Well, California has about 40 million people. As do those 22 states. Combined. And that imbalance makes it possible for Republicans to push through a Supreme Court nomination, even though Democratic Senate candidates have received more popular votes nationally.

Though it has nothing to do with judicial confirmations, there’s a similar, and long-standing imbalance in the House of Representatives. Republicans can lose the national popular vote by several points while winning the House. This is a districting issue, partially due to gerrymandering, mostly the huge concentration of Democratic votes in highly populated urban areas. Even if non-partisan software were handling all districting, there’s still a structural imbalance.

These three core components (Electoral College, Senate, House) of how Americans are represented on the national level have remained mostly unchanged for 230+ years. If one of the most (to put it mildly) controversial presidents is re-elected by a minority popular vote, while the GOP keeps control of the Senate, despite having their candidates net/net outvoted, you’d expect a furor.

But what exactly could Democrats do? Try to pass legislation? Through a Senate that knows the current system is keeping the majority with the GOP? Constitutional Amendments require state legislatures to follow passed legislation. Even if the legislation somehow happened, the majority of states have huge incentive to keep the current system. Under what circumstances do South Dakotans say “you know, this isn’t fair. We should give larger states four senators.” Do Iowans decide they’d love to have a national popular vote, which would ensure candidates spend most of their time in more congested places, rather than fighting over a traditional swing state?

Apologies if you were looking for a solution, but I don’t see a way out of this one. Angry protestors in New York or LA aren’t going to make people in Sioux Falls, SD say “hey, we better listen to them.” Ironically, when things are out of balance, you can’t do anything because the system so clearly favors one side. When you could get bipartisan interest, it doesn’t feel necessary, because the system is appearing to work.

Which brings us back to Mr. Biden. If the election were today, and the polls are mostly correct, he would win the popular vote and electoral vote. Neither would be super close. And he’d be efficient enough on the distribution of his votes. He’d also likely have a Senate majority. Partly because it would be hard for Republicans to run more than a few points ahead of Trump in their states, and partly because Democrats would only need 50 senators instead of 51 (with VP Kamala Harris breaking any ties.)

It would then fall to Democrats to push forward with altering a system that allowed them to control both houses and the presidency. There’s already some talk about a Democratic Senate trying to make up for a rushed Supreme Court confirmation by “packing” the court and adding a couple new justices. Unlike messing with the Electoral College or how Congress is distributed, there’s precedent here. The Court was founded with 6 justices, a Chief plus 5 associates. If Democrats tried to add two, which would still leave a 6 to 5 conservative majority, just not one that would almost definitely hold for a generation, I think they’d get away with it.

When FDR overstepped in 1937, his plan would have allowed him to appoint up to 6 additional justices. Enough to ensure he had a majority. Democrats would need four extra seats in 2021 to accomplish this. I believe this would not work. Could they get the votes? Very possibly. Would they regret it in the 2022 midterms? Absolutely. And it would set off a cycle where as soon as a party had control of both the presidency and Senate, they would automatically add enough justices to gain control again. We’d wake up one day in 2050 with a Supreme Court that had 39 justices.

Our system rests on avoiding the tyranny of the majority. Especially when the majority is narrow, it’s crucial the winners take some care with the losers. As great as the small state/large state compromise seemed when I learned about it in grade school, nobody said anything about one state having a senator for each 20 million people, while 22 others average a senator for each 909,000. This will need to get dealt with at some point. Ideally, next time one side wouldn’t have to give up very much, there will be a change. Or in a hallucinatory world where politicians can still make deals, perhaps the Dems pass on adding justices in exchange for movement on this (won’t happen, but it would be “fair.”)

Even if you don’t think a 22:1 ratio is a problem, there has to be some point where it is ridiculous. The gap is continuing to grow. When Virginia was the population juggernaut in 1790, the ratio was 7:1. Are we going to be ok with 50:1 some day? The Court is on everyone’s mind. The Electoral College is too. But the huge disparity in Senate representation is the one element that is most out of historical balance.