I have, however, been opposed to the Electoral College since I first studied it in depth 25 years ago and would be no less opposed to it if the situation were reversed. You can choose to believe that or not. If you don’t, you won’t care about anything else I write here and will assume I am viewing this through a partisan lens. If that’s the case you may as well move along and save yourself some time.
It is, however, a fact that I would be against the Electoral College even if it had elected Clinton despite Trump winning the popular vote. I’m against it even when it does not work such anomalous results. As I said the other day, Donald Trump is the fairly-elected President of the United States. I do not claim that he was illegitimately elected. This is the system we have and both he and Clinton knew it going in. The results will stand. And they should.
But the system should not stand.
The Electoral College is a Remnant of Slavery and is thus Morally Odious
The Electoral College exists because of slavery. There is no way to get around that. To understand why this is so, you must understand the Three-Fifths Compromise.
As you may remember from school, there was a big problem trying to figure out how to structure Congress at the Constitutional Convention in 1787. The big idea – giving states equal representation in one house, the Senate, while giving larger states more sway in the House of Representatives – was eventually agreed upon. The small states, however, were still sort of freaked out about it because the big states like Pennsylvania and New York were SO MUCH BIGGER than the small states, almost all of which were down south in slave territory. So they proposed doing something they’d never do in the normal course: they suggested counting their slaves as people.
The northern delegates were NOT having that. Partially, I assume, because even most of them didn’t consider slaves to be human beings, but mostly because doing so would give a ton of power to the south. So a compromise was reached: “we’ll count your slaves to determine your number of congressmen, but not on a one-to-one basis. How about each slave counts as 60% of a person?” The deal was done and the Three-Fifths Compromise was enshrined in the Constitution.
Most history and civics classes end this here, with Congress, and handle the method of electing the president as a totally separate subject. It is not, however, separate at all. The ugly struggle for power and attendant racism which allowed for the Three-Fifths Compromise was just as responsible for the adoption of the Electoral College. Indeed, the existence of the Three-Fifths Compromise made its adoption possible.
When it came to the business of electing the president, some delegates, including James Wilson of Pennsylvania, who was a primary author of the Three-Fifths compromise, proposed a direct national election of the president with the winner of the popular vote prevailing. Popular conception is that this was rejected because the population was too ignorant or too widely dispersed to handle the task. This may have been a sentiment held by some, but it was not the sentiment which ultimately put the kibosh on direct elections. Rather, it was the same concern which caused the Three-Fifths Compromise to come into being.
James Madison, a slave owner from Virginia, knew what was up. He said this on the matter of a direct presidential election at the Convention:
“The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes”
The solution: the Electoral College, which ties the election of the president to the number of representatives each state has in Congress, which was itself set by the Three-Fifths Compromise to deal with the problem of those pesky Negroes. Without it, the Electoral College would’ve been a nonsensical non-starter. The same slavery-inspired, dehumanizing solution for Congressional matters was the primary selling point for the Electoral College. The Three-Fifths Compromise is now a repealed and notorious bit of darkness in our nation’s history. Yet one of its most significant products – the Electoral College – remains.
The Electoral College’s existence is not illegal, obviously, and disposing of slavery as we did in the wake of the Civil War did not, technically speaking, require us to dispose of all of its remnants. But do we not have a moral obligation to dispose with as many of those remnants as we can? Do we not owe it to our national conscience to erase as much as we possibly can of that legacy? And to put past wrongs right as much as we possibly can? The intention behind the Electoral College was indisputably bound up in our nation’s most egregious collective sin and, on that basis alone, it is odious.
The Electoral College System is Simply Unfair
Even if you do not find its origin and history odious – even if you believe that what has gone on in the past is over and should not be dwelled on in the present – it is hard to dispute the inherent inequality the Electoral College system continues to foster.
Under the Electoral College, even the smallest states are guaranteed three Electoral College votes. As a result, roughly four percent of the country’s population in the smallest states end up being allotted around 8 percent of Electoral College votes. If you play around with the Electoral College map, you can find all manner of anomalous and non-democratic results. Indeed, one can win the presidency by carrying 37 states which possess only 45% of the nation’s voters per the 2010 census.
Against this backdrop, various pro-and-con arguments for the Electoral College system form. You’ve likely heard many of them before:
Q: Doesn’t the Electoral College ensure that rural areas aren’t placed at a disadvantage to urban areas in elections?
A. Even assuming it does – which I do not think it would, for reasons stated later on – why would that be a bad thing? Sixty-three percent of the our nation’s population lives in cities. That percentage is growing. The notion that people who live in rural, heartland areas are somehow “real Americans” while city dwellers are not is, in addition to being demographically inaccurate, insulting and condescending. Any defense of rural areas over urban areas is either (a) an exercise in elevating acreage over people in terms of importance; or (b) elevating a particular sort of person over another in terms of Americanness or importance. In a democracy, no person’s vote should count more than any other person’s. The Electoral College ensures this to be the case.
Q: Is it not too unwieldy to count over a hundred million votes across the nation?
A: Not at all. We’ve had final popular vote totals within a day or two of the general in every election in modern history and, with one or two exceptions, clear and accurate popular vote winners the night of the election, even if some final counting was required.
Q: What about those exceptions? Like Florida in 2000? Would a Bush-Gore-style recount not be a nightmare if it occurred nationwide?
A: A national popular vote makes that less likely, not more. The larger the vote sample, the less likely that it will be close. In many elections we’ve had one tipping-point state which could have a close call. We have not had a national vote that was separated by fewer than half a million votes in 56 years.
Q: What if third party candidates kept any one candidate from getting more than 50% of the popular vote?
A: Instant runoff voting (IRV) is designed to deal with this problem. It is utilized in Ireland, Australia and India. It’s used in provincial elections in Canada. It is used in internal party elections the world over, including in the United Kingdom. While there are pros and cons to IRV too, they are not, in my view, any worse than those of other systems and, in many ways, far better. One benefit: it reduces the incentive to campaign negatively, as candidates from one party have an incentive to attract voters from minor parties in order to become their second choice. It thus gives more power to third parties which many people have clamored for in recent years.
Q: Wouldn’t a popular vote election cause candidates to ignore vast swaths of the country and concentrate on population centers when campaigning?
Like they don’t do this already? Given that the overwhelming majority of “safe” states in the Electoral College for each party, the candidates effectively ignore 38 of our 50 states now and concentrate on 12 swing states – Wisconsin, Pennsylvania, New Hampshire, Minnesota, Ohio, Iowa, Virginia, Florida, Michigan, Nevada, Colorado, and North Carolina – which can deliver well over half of the necessary Electoral College votes to win despite containing far less than half of the population of the United States.
By one measure, Donald Trump and Hillary Clinton concentrated 94 percent of their campaign events in the 12 swing states and all but ignored campaigning in states which hold 70% of the population. In light of this, it’s inescapable that the Electoral College system does far more to encourage candidates to exclude vast swaths of the nation while campaigning than a popular vote system would. Anyone who makes the argument that a popular vote would silo-off campaigns to a few small areas is ignoring the reality that the Electoral College system already does this far, far more effectively.
Q: So, can anything be done about it? Can we abolish the Electoral College?
A: Short answer, not easily. But there is one possible means of short circuiting the damn thing.
A 2013 Gallup poll showed 63 percent of adults wanted to do away with the Electoral College. Only 29 percent wanted to keep it. The rest had no opinion. Which, hey, that’s great, but that’s not nearly enough. Not all matters that were decided upon in 1787 were decided poorly, and one of the good things they did was to make it hard to amend the Constitution. And amending the Constitution would be required to get rid of the Electoral College.
Such a Constitutional amendment would require, at the outset, two-thirds of the House and Senate to vote in favor of it. At the moment, given how the Electoral College favors the party that has majorities in both houses of Congress, it will never happen. Fairness and democracy are wonderful things, but they pale compared to craven power plays when it comes to Congress.
Even if two-thirds in Congress approved it, however, it would then require voters in 38 states to ratify it. While those polls about the Electoral College make that seem possible, it likely would not be that easy in practice. As noted, we have 12 swing states that, if they voted to get rid of the Electoral College, would be voting to reduce their own power. Not bloody likely. There are also hordes of other smaller states that, while non-swing states, would not like to see larger population centers benefit by the end of the Electoral College. What you or I may see as a measure of fairness will be characterized by opponents as a power grab or the trampling upon the weak by the strong. Insert whatever political rhetoric you’d like, but the ratification process would lend itself to some pretty ugly politics which would have “maximizing the fairness of the electoral process” as one of its least pressing concerns.
There is one way, however, to get rid of the Electoral College which would not require a Constitutional Amendment. Well, it would not get rid of it as much as serve as a work-around. It’s called The National Popular Vote Interstate Compact.
Article II of the Constitution allows each state to choose the way it allocates its Electoral College voters (yes, they are actual people) and allows states to dictate how they cast their electoral vote. The extent to which that power has been used has, primarily, been to bind Electoral College voters to cast their ballot in favor of the candidate who won that state and to punish so-called “faithless electors” who do not do so, usually with fines. The National Popular Vote Interstate Compact is a measure, adopted on a state-by-state basis, which would require Electoral College Voters to cast their votes to the candidate who wins the national popular vote.
While the Compact will not and never will be national law it will, by its own terms, come into power once once states representing 270 Electoral College votes adopt it. And, by definition, it will make the national popular vote the determining factor in who wins the Electoral College and thus becomes president.
So far it has been adopted by 10 states and the District of Columbia, which represent 165 Electoral College votes (Rhode Island, Vermont, Hawaii, Maryland, Massachusetts, Washington, NewJersey, Illinois, New York and California). All of these are Democratic-leaning states, obviously, as the current state of politics has the popular vote favoring Democrats. This may not always be the case, however, and it’s worth noting that the Compact has seen at least some legislative headway made in Republican-controlled Arizona, Oklahoma and Georgia. As I said above: the outcome of the 2016 election is not my motivation for wishing to get rid of the Electoral College system. Our nation’s political demographics are not static. It’s worth nothing that the shoe could very well be on the other foot one day. It could just as easily usher a Democrat into office despite him or her receiving a minority of votes as well and thus some Republican leaning states may themselves become big fans of the Compact as time goes on.
Conclusion
As I noted at the outset, I first studied the Electoral College in depth as an undergraduate 25 years ago. Since then it has been a fascination of mine and I read about it and engage in debates about it quite often.
In all of this time, the only arguments I have ever heard which clearly favor the Electoral College are ones rooted in tradition, the self-interest of small states and swing states and, for many, the fact that, at present, the Electoral College math favors one particular party over another. All factors which look at the present, as opposed to the past, and which focus on matters of fairness, democracy and the value of a person’s vote irrespective of current political tactics, favor a national popular vote.
If we were drawing up the system today, there is no way on Earth we would ever implement the Electoral College system. It is nonsensical and exists out of nothing but historical inertia. We should abolish it as quickly as possible. Formally if we can but via a workaround like the Compact if we cannot. It’s simply better for democracy.
