← Back to Blog
Free May (NCFL) Lincoln-Douglas Topic Analysis
By Adam Tomasi
The 2021 NCFL Nationals LD resolution, â€œResolved: The U.S. presidency ought to be decided by a national popular vote instead of the electoral college,â€ is philosophically sophisticated because it reaches fundamental questions about individual rights and equality in a democracy. The outcome of the 2016 presidential election, where Hillary Clinton lost to Donald Trump in the Electoral College despite winning the popular vote by three million votes, generated thought-provoking debates about whether the Electoral College was outdated in a modern democracy. The final round of the ACC Debate Championship, on April 2, 2017, addressed the same resolution and offers an excellent preview of important topic questions. There are at least three frameworks worth considering on this topic that are consequentialist, non-consequentialist, and legal in nature. I differentiate legal frameworks from the first two because although laws lean in a non-consequentialist direction, the way theyâ€™re uniquely justified in debate requires a separate discussion.
There are two types of consequentialist frameworks that the Aff could consider on this topic. The first, utilitarianism, establishes that our moral obligation is to maximize happiness (or the â€œgreatest good for the greatest numberâ€). Philosopher Ben Eggleston argues that utilitarianism is best for policymakers because â€œAll major policy decisions involve tradeoffs, and utilitarianism provides a framework for making those tradeoffs and trying to do so in the way that promotes the common good the most.â€ This framework is less often applied in debates on the Electoral College which tend to focus on issues of rights, representation, equality, and power. However, both sides can still think like utilitarians in evaluating the topic. For example, the Electoral College may give undue weight to corn ethanol in political campaigns and lead to its wider adoption in government in order to maintain support. According to Lee Simmons, under the Electoral College â€œall the action happens in a handful of swing states like Iowa, Ohio, Nevada, Colorado, and Florida. Itâ€™s no surprise, then, that nearly every candidate supports otherwise indefensible subsidies on corn ethanol â€” a litmus test for Iowans.â€ In the 2020 presidential election, ethanol waivers became a key issue as the Trump and Biden campaigns made an extra push to win Minnesota. The Util AC could argue that with a national popular vote, corn ethanol would become more marginal in political campaigns, and this will reduce the likelihood of laws that promote an environmentally unsustainable energy source. Much has been written about the high greenhouse gas emissions produced by corn ethanol, and with that you can read a climate change impact. A Util NC could similarly focus on corn ethanol and argue that it is a sustainable alternative to fossil fuels, also with a climate change impact.
The second consequentialist framework that debaters could read is a value criterion of â€œpromoting democracy.â€ Whereas a non-consequentialist framework would argue that we should honor pre-existing rights, this consequentialist framework argues that we should make our society as democratic as possible. In fact, a Democracy AC would disagree with have to disagree with the non-consequentialist premise that certain freedoms are absolute (inviolable). As political theorist Tom Christiano argues, â€œit appears that one of the main reasons for having political decision-making procedures is that they can settle matters despite disagreement. Hence it is hard to see how any political decision-making method can respect everyoneâ€™s liberty.â€ The framework would argue that democracy is the most moral form of government, and elections should more thoroughly commit to majority rule, even if that fails to respect every personâ€™s freedom. This directly refutes the â€œtyranny of the majorityâ€ premise of the Neg by establishing that minority rights are certainly important, but should not be privileged at the expense of the majorityâ€™s voices.
Frameworks that engage with the principles of democracy â€“ such as majority rule versus minority rights â€“ are most exciting on this topic because they delve into the most basic assumptions guiding the Electoral College debate. Whereas other debate formats might focus more on the practical consequences of abolishing the Electoral College (such as the ramifications of abolition for campaign finance, political strategies, and the two-party system), LD gives us the opportunity to investigate the contours of democracy itself. Why should we subscribe to â€˜one person, one voteâ€™? Why is it a problem if the most populous states and cities have a greater voice, when presumably we should pay more attention to the places where most people live? And if a candidate wins the Electoral College but loses the popular vote, are they the politically and morally legitimate victor? History can be a guide to investigating the last question, because there have only been a handful of cases where the winner of the popular vote lost the Electoral College. The framework debate can help us discern patterns in these historical events to see if they suggest moral or democratic failings of the system. Most of the time, the winner of the popular vote also wins the Electoral College, but is this really a sign that the system is â€œworking,â€ or have we just been lucky that there werenâ€™t so many more wacky results in our past?
Another framework that both debaters could read on this topic is consistency with equal freedom, as articulated by professor of philosophy Arthur Ripstein. In Force and Freedom: Kantâ€™s Legal and Political Philosophy, Ripstein defines equal freedom as a system in which â€œnobody use[s] his own person in a way that will deprive another of hers, or use another personâ€™s without her permission,â€ which he also puts as â€œpeopleâ€™s respective independence.â€ From this framework, you could argue that the United States must morally prioritize the Equal Protection Clause of the Fourteenth Amendment, which establishes that the federal and state governments must not â€œdeny to any person within its jurisdiction the equal protection of the laws.â€ Law professor Erwin Chemerinsky argues that the Electoral College violates the principle of â€˜one person, one voteâ€™ required by the Equal Protection Clause. Under the Electoral College, votes in small states count for more than votes in large states, but under the national popular vote each personâ€™s vote counts exactly the same: a total of one, with no added weight. This argument is more strategic than one that focuses primarily on the winner-take-all system, because the Neg can always argue that a system of â€˜proportional representationâ€™ (award electors based on Congressional districts, as Maine and Nebraska do) could solve the issue.
How does the Neg use an equal protection/equal freedom framework? The Neg can argue from a recent Ninth U.S. Circuit Court of Appeals decision, in 2019, that the Electoral College is consistent with the Equal Protection Clause. The courtâ€™s opinion was about the winner-take-all system being consistent with equal protection, but you could similarly apply its logic about the burdens being â€œminimalâ€ to the argument about small states. Of course, the Neg cannot simply argue that the Electoral College does not violate a framework of equal freedom; they have to argue that a national popular vote would be worse. To generate offense under equal freedom, the Neg can argue that the Electoral College is a bulwark against a â€œtyranny of the majorityâ€ by ensuring that Presidents have to respect all states instead of a few areas with large populations. However, this offense assumes that individual rights depend upon statesâ€™ rights in a federalist system. A national popular vote more directly respects citizensâ€™ rights as individual agents, so the Neg has to prove that small-state voters need the added boost from a federalist system in order for their voices to be equal to others. But, the Aff has valid arguments for why a national popular vote gives more of a voice to small-state voters, even if their states as political units matter less per se. Kristin Eberhard explains that with a national popular vote, â€œwinning over a voter in Wyoming would be just as important on the path to victory as a voter in Florida,â€ especially because Florida would no longer have outsized importance as a battleground state.
Both sides could also argue for the Equal Protection Clause, and other considerations, based on a value criterion of â€œconsistency with the United States Constitution.â€ The framework would argue, based on social contract theory, that governments must always hold themselves accountable to the legal agreements that establish their authority. Philosopher John Searle argues for â€œconstitutive rulesâ€ that create â€œobligations, commitments, rights, and responsibilitiesâ€ inherent to an institution. The US Constitution sets the constitutive rules for all three branches of government, and the government has to prioritize these rules over any moral theory. For example, you could argue that the Constitution takes precedence over utilitarianism because although the Constitution requires the government to provide for â€œgeneral welfare,â€ the Bill of Rights constrains what the government can do to maximize utility. Under utilitarianism, side-constraints are negotiable if they hinder expected well-being. Even though the Constitution can be amended, and observers can disagree on its interpretation, the Constitution still provides the umbrella under which these changes and debates occur. For the Aff, a Constitution AC would be strategic because the Equal Protection Clause, a compelling Aff argument, comes directly from the Fourteenth Amendment.
The Neg can argue that the Electoral College itself originates with the ratification of the original Constitution, but this argument only gets you so far: the original Electoral College had state legislatures appoint electors to pick the president, when a popular vote for president was a foreign concept. That alone makes an originalist argument for the Electoral College difficult, in addition to the fact that the original Electoral College was designed to protect the interests of slave-holding Southern states. With these historical realities in mind, any Constitution NC should find a way to agree with the premise of a â€˜living Constitutionâ€™ (we shouldnâ€™t interpret the document as if we were living in 1787). You may be able to argue that abolishing the Electoral College will create a political crisis that leads to a complete rewrite of the Constitution through a convention, which would have problematic implications for many important rights.Political scientist Timothy S. Boylan also argues for the Electoral College because a system requiring â€œa constitutional rather than a popular majorityâ€ is more consistent with the original intent of the Framers and more democratically legitimate. To make the Constitution NC workable, you may have to argue that certain aspects of Madison and Hamiltonâ€™s vision for the Electoral College remain legitimate in a society that has since departed from its slave-holding, less democratic origins.
The NCFL Nationals LD resolution, like the Sept/Oct 2020 topic (compulsory voting) re-introduces major questions in political philosophy alongside the traditional issues of morality that LD addresses. Debating about the Electoral College should inspire high school students, many of whom are not yet eligible to vote, to think deeply about the ethics of their vote â€“ most of all, why their vote matters. Elections may not be the end-all of legitimate political activity, but voting remains one of the most basic and essential activities of democratic citizenship. When writing about democracy, you can imagine the loud voices that insist the United States is a republic, not a democracy. Usually those are the same people who argue for the Electoral College. But whether you are Aff or Neg, you should take seriously the differing implications of America being a democracy (or, maybe, a republic â€“ if those two are ever different) and what rule by the people ought to look like.
 ACC Debate Championship Tournament, â€œFinal Round | Wake Forest vs Miami | ACC Debate Championship Tournament,â€ YouTube, April 2, 2017, https://www.youtube.com/watch?v=0pifr8DkHwQ, accessed April 10, 2021.
 George Diepenbrock and Ben Eggleston, â€œProfessor Studies How Utilitarianism Provides Framework for Major Policy Decisions,â€ June 16, 2014, https://today.ku.edu/2014/06/02/professor-studies-how-utilitarianism-provides-framework-major-policy-decisions
 Lee Simmons, â€œSick of Presidential Campaign Ads? Blame the Electoral College,â€ Stanford Graduate School of Business, April 18, 2016, https://www.gsb.stanford.edu/insights/sick-presidential-campaign-ads-blame-electoral-college
 Jim Spencer, â€œEthanol waivers become central issue in presidential battle for Minnesota farm votes,â€ StarTribune, September 18, 2020, https://www.startribune.com/ethanol-waivers-become-central-issue-in-presidential-battle-for-minnesota-farm-votes/572455302/
 T.D. Christiano, â€œDemocracy: Normative Theory,â€ in International Encyclopedia of the Social & Behavioral Sciences, 2001, https://www.sciencedirect.com/topics/computer-science/collective-decision-making
 Arthur Ripstein, Force and Freedom: Kantâ€™s Legal and Political Philosophy (Cambridge: Harvard University Press, 2010), page 39. Google Books.
 Erwin Chemerinsky, â€œWhy the Electoral College system violates the Constitution,â€ Los Angeles Daily News, updated August 28, 2017, https://www.dailynews.com/2016/12/13/why-the-electoral-college-system-violates-the-constitution-erwin-chemerinsky/
 Sandra Hong, â€œNo Constitutional Violation in â€˜Winner-Take-Allâ€™ Voting System,â€ Metropolitan News-Enterprise, September 9, 2020, http://www.metnews.com/articles/2020/gonzalez090920.htm
 Donald Roth, â€œSphere Sovereignty and the Electoral College,â€ February 10, 2017, https://digitalcollections.dordt.edu/cgi/viewcontent.cgi?article=1645&context=faculty_work
 Kristin Eberhard, â€œSmall States Arenâ€™t Actually Protected by the Electoral College,â€ Sightline Institute, December 11, 2020, https://www.sightline.org/2020/12/11/small-states-arent-actually-protected-by-the-electoral-college/
 John Searle, â€œHow to Derive an â€˜Oughtâ€™ From an â€˜Isâ€™,â€ The Philosophical Review Vol. 73, No. 1, January 1964, http://commonsenseatheism.com/wp-content/uploads/2010/03/Searle-How-to-Derive-Ought-from-Is.pdf
 National Archives, â€œElectoral College History,â€ accessed April 10, 2021, https://www.archives.gov/electoral-college/history
 Wilfred Codrington III, â€œThe Electoral Collegeâ€™s Racist Origins,â€ The Atlantic, November 17, 2019, https://www.theatlantic.com/ideas/archive/2019/11/electoral-college-racist-origins/601918/
 Allen Guelzo, â€œIn Defense of the Electoral College,â€ National Affairs, Winter 2018, https://www.nationalaffairs.com/publications/detail/in-defense-of-the-electoral-college
 Timothy S. Boylan, â€œA Constitutional Defense of the Electoral College and the Election of the American President,â€ The Open Political Science Journal, 2008, https://benthamopen.com/contents/pdf/TOPOLISJ/TOPOLISJ-1-50.pdf