(Author’s note: Originally a three–part series, “PPFA Evaluates the Electoral College” is now combined and streamlined below into one lengthy post. Wording has been changed. If you missed the original three parts, this post, though gargantuan, is the best version.
Also, I have a pretty solid streak of posting on Monday mornings that I didn’t want to lose, but I had nearly a hundred essays to grade last week and no time to write something original. Sorry for having a job.)
Harvard professor and former presidential candidate Lawrence Lessig, about whom PPFA wrote a piece two years ago, has an idea. The Electoral College, he says, is outdated, undemocratic, and it needs changes. And he’s preparing a lawsuit to make it happen.
Is he right? Is this a noble quest? Should the Electoral College be replaced, or at least amended?
A year after the Electoral College elected Donald Trump to be president, many of you are screaming “YES!” But let’s not be hasty. Let’s instead be educated.
To best understand the cases for and again the Electoral College, let’s take a classic PPFA deep dive into that murky pool where history’s chlorine tries to clarify our messy politics.
Part 1: An Electoral College Overview
Remember that time a presidential candidate earned more votes but lost anyway?
“Which time?“ you might ask.
You know — that recent time.
“Which recent time?” you might ask again. Shrewd as ever, you know that two of our last three presidents (Bush in 2000, Trump in 2016) were elected with fewer votes than their opponents. Is that a problem? Is our system broken?
There is no better way to tackle this issue than with some Frequently Asked Questions that precisely zero of you actually asked.
What even is this wonky “Electoral College” of which you speak?
Created by Article II, Section 1 of the Constitution (and later modified in the Twelfth Amendment), the Electoral College is currently a group of 538 Electors who vote for the president. (That number started at just 69 in the first presidential election but has grown with new states and a rising population.) Each state picks its own delegation, the size of which is equivalent to each state’s number of House members plus its Senators. Since the numbers of House members are determined by population, each state’s Electoral College delegation (very) roughly correlates to the population of the state. Every state has two Senators and at least one House member, so every state (and DC) has at least three electoral votes.
Members of the Electoral College cast their presidential ballots in December, a month after the general population’s Election Day.
How did those members get admitted to this so-called “college”? GPA? SAT scores? Guidance counselor recommendations?
Those were truly awful guesses.
Every presidential election brings with it an almost entirely new group of electors. Depending on which candidate wins each state, that candidate’s party gets to pick the state’s allotted electors. Thus, if the Democrat earns a few more votes than the Republican in, say, Virginia, then Virginia’s Democratic Party gets to pick loyal Democrats to fill out its entire 13-member delegation to the Electoral College. These Democrats will almost certainly vote for the Democratic candidate. Of the Electoral College’s 51 delegations, two operate differently: Nebraska and Maine allow each of their Congressional districts to pick an elector in their state’s delegation. The 48 states that set up winner-take-all systems did so in order to amplify their state’s importance in an election, hoping to get more attention from the candidates. Of course, all but two states amplifying muffles the amplification.
Some of these electors have been known to go rogue — they’re called faithless electors — and vote for someone other than the candidate preferred by the state’s voters. In fact, 2016 had seven faithless electors, the highest number in election history that included two candidates who were still alive. (In 1872, losing candidate Horace Greeley died between Election Day and Electoral College Election Day, probably the most prominent historical example of adding injury to insult.) Receiving votes were John Kasich, Bernie Sanders, Ron Paul, Colin Powell, and Faith Spotted Eagle.
Wait, so it’s these electors and NOT the voting public who elect the President?
Correct. The people are actually voting for these electors, and it’s the electors who then elect the president.
That sounds crazy. What’s the history behind the Electoral College?
For about a millennium the Catholic Church has elected its popes through the College of Cardinals, essentially an electoral college. Barely more secularly, the Holy Roman Empire, for much of its history, had a group of electors (originally seven, but the body grew over time) who elected each Holy Roman Emperor. They were known as reichsstände, a title which, if said out loud, begs to be replied with gesundheit.
WTF? The Holy Roman Empire? I’m asking about America, you unbelievable nerd.
Oh, right. America. The Electoral College likely birthed from the mind of Lin-Manuel Miranda Alexander Hamilton. Though the details of the Constitutional Convention are purposefully muddled (its members had to swear an oath of secrecy, though inevitable leaks escaped), we can still assume Hamilton championed the system behind its closed doors for two primary reasons:
- When Hamilton, James Madison, and John Jay combined forces for The Federalist papers (which aimed to rally public support for the Constitution ahead of a ratification vote in New York), it was Hamilton who explained the purposes and merits of the Electoral College, an essay which became “Federalist No. 68.”
- Hamilton, like many founding fathers but even more so, feared the “tyranny of the majority” — a term which implies democracy can’t always be trusted to make good decisions. The people, in other words, don’t know best, and can get carried away, They might even, I don’t know, get swept up in the rise of an unqualified demagogue who is a lot better at running for office than he is at exercising its authority.
We’ll return to the arguments of Hamilton and others in favor of the Electoral College a bit later. In the meantime, suffice it to say we’ve used the Electoral College in all 58 of our presidential elections. Some love it. Other say…
So which is it? A good system or a “disaster”?
And now we arrive at the heart of the matter.
Is it a good system? The answer depends on what one thinks the purpose of the Electoral College is, or at least what it should be. Is its purpose to confirm the will of the people? Or is it to serve as a check against the people’s power? Or something else entirely?
Because if it’s to confirm the will of the people, we might have a problem…
Part 2: The Case Against the Electoral College
Even before Lessig’s potential challenge, many liberals and Democrats had already pushed for a reevaluation of the Electoral College. They say the victories of Republicans Bush and Trump are symptoms of systemic problems with the college, arguing: A) It does not give voters an equal voice when choosing their president; and B) Further evidence of “A,” it favors the Republican Party through giving rural and red state voters disproportionate power compared to urban and blue state ones, an inherently unfair and undemocratic electoral process.
This argument is not baseless. Republicans do, in fact, enjoy a current advantage under the Electoral College. Let’s be clear: this is why Democrats want to change the system and Republicans want to defend it. Were the shoe on the other foot, so, too, would the parties and their respective media outlets be. Though each side bases its argument on what it considers a cherished American ideal — Democrats say all votes should be equally counted, while Republicans say we should respect our founding fathers and their Constitution that has served us well — we know what really drives them: exploiting any advantage they can get.
Regarding this Republican advantage and other faults of the Electoral College, Lessig and other Democrats point out the following:
- The very fact that it is not the American people but “electors” chosen by party leaders that elect the President sounds more oligarchic than democratic.
- The winner-take-all system used by 48 states disregards the vote of millions of Americans. A Republican vote in California (of which there were nearly five million in 2016) is not considered in the Electoral College. Same with a Democrat in Oklahoma. Meanwhile, votes from citizens in about a dozen swing states are worth a great deal. This gives some Americans more power at the ballot box than others. Hence, all votes aren’t treated equally, neither by the electors that cast ballots nor the presidential candidates who give more attention to certain states.
- Even in the swing states, the candidate that wins a plurality of the vote gets all the state’s electoral votes. In the end, just like in a non-swing state, the thousands of battleground state voters that voted for someone else does not have their votes counted in the Electoral College. Thus, no matter the state, “With a winner-take-all,” Lessig believes, “Most of America is ignored.”
- Since most Americans feel ignored and that their vote doesn’t make a difference, the motivation to vote, or to educate one’s self before that vote, drops. The natural result is a more apathetic citizenry, especially from moderate potential voters. Meanwhile, the partisans who think every election determines the very fate of freedom are the ones left making decisions in our ballot boxes and therefore our elected positions. Partisan print, TV, and radio media then tailor themselves to the only people left paying attention — the ideologues. A feedback loop is created.
- Now let’s get into that Republican advantage. Since every state, no matter how less populated than the bigger states, gets at least three electoral votes, the relative electoral power of states is not as proportional to their population as one might assume. Wyoming’s population of 586,000 nets them the minimum three electoral votes (one electoral vote per 195,000 residents), while California’s 39,250,000 earns them only 55 (one electoral vote per 714,000 residents). That means a Wyomingite’s vote counts 3.6 times more for the presidency than a Californian’s. All the smaller states enjoy this advantage. Slate shaded a useful map to reflect that:
Slate’s numbers are more appropriate, as its calculation uses only the voting eligible population, which is the number the Constitution instructs us to use when determining a state’s electoral power. Still, the results are similar: “The average electoral vote,” Slate tells us, “represents 436,000 people, but . . . the states with the fewest people per electoral vote, and therefore the highest ‘vote power,’ are Wyoming, Vermont, and North Dakota. In Wyoming, there are 143,000 people for each of its three electoral votes. The states with the weakest votes are New York, Florida, and California. These states each have around 500,000 people for each electoral vote.”
Put another way, if we wanted to grant Wyoming its Constitutionally mandated minimum of three electoral votes but also give Californians a say in the Electoral College equal to that of a Wyomingite, we’d have to make it so California got one electoral vote for every 143,000 eligible voters it has. For its 25 million eligible voters, instead of 55 electoral votes, California would then have — get this — 175! And again, that’s just so their vote counts equally as much as a voter’s in Wyoming already does.
Now, all states would see an uptick to match Wyoming’s power, but looking at the map we see the darker-shaded, more sparsely populated states are predominantly Republican, the party that has the overwhelming support of rural voters. The only strong Democratic states with above-average electoral power are Vermont and Delaware, while most Republican states carry above-average electoral sway.[1] The Republican advantage is real.
The most popular replacement for the Electoral College is a national popular vote, which proponents say would limit disenfranchisement and encourage more people to participate in the process and ensure not only that all votes are counted equally, but that the will of the people is directly reflected in a presidential race. Not surprisingly, polls show that a majority of Americans have long wanted a majority of Americans to have the ability to choose their president.
Lessig and his backers, however, are not promoting such a Constitutional overhaul. He’s not pushing for a Constitutional Convention or a revision of the founders’ original vision. Instead, he wants to modify what the Electoral College has become but wasn’t always. He reminds us the method for allocating electors was not prescribed in the Constitution. Forty-eight states eventually took it upon themselves to become winner-take-all in the Electoral College in order to attract more attention and have more political power. Once 48 states converted to that, this advantage was nullified. Lessig suggests moving away from this negated advantage that ignores millions of voters and toward something more proportional; if a state’s vote is close to 50-50, then its electoral allocation should be close to 50-50 as well.
The crux of Lessig’s lawsuit is that the current system treats all citizens’ votes unequally, but more political Democrats go one step further and point out that the electorate with less relative voting power — city dwellers — are not only disproportionately Democratic, but disproportionately black as well. This country, the argument goes, is therefore continuing to disenfranchise the African-American vote; it’s just the latest tapering from full disenfranchisement (pre-Civil War) to Jim Crow (the century after the Civil War) to now having minority votes marginalized in the Electoral College. Indeed, some argue that much of the impetus behind creating the Electoral College, to say nothing of equalizing states’ power in the Senate, was to protect rural, southern slave states from being overwhelmed by more densely populated northern anti-slave states; the Three-Fifth Compromise even allowed southern states to count slaves as three-fifths of a voter when determining representative power in the House even though those slaves did not have voting rights.
Lessig argues that this marginalization, to say nothing of ignoring the political minority in safely Republican or Democratic states, is in direct violation of the Fourteenth Amendment, the second section of which essentially protects a “one person, one vote” premise in American democracy. It’s part of what’s commonly known as the Equal Protection Clause, which mandates, among other protections, that all American citizens are treated equally the law, including their voting rights[2] It can be a disturbing realization that the Constitution, including the Electoral College, was codified in part by a couple dozen slave owners who now, from the grave, continue to discriminate against blacks.
Ultimately, the current system is undemocratic, unfair, discouraging, and possibly even racist. These are damning arguments. Surely the Electoral College needs a tweak, if not a drastic overhaul. Perhaps it should be eliminated altogether.
Or perhaps not.
Part 3: In Defense of the Electoral College
After reading Part 2, you’d be forgiven for wanting to abolish the undemocratic Electoral College. You might even be wondering what America’s founding fathers were thinking when they created it. I’ll get into their thought process and some of the more admirable qualities of the Electoral College in a moment, but first I want to ask anti-Electoral-College voters a difficult question.
What’s more important: majority rule or minority protections?
Think on that as we take a trip back to 1780s, when a fledgling country tried to find its way….
Our founding fathers had a few primary motivations when constructing the Electoral College. They designed the College as part of the broader Constitution at the Constitutional Convention, a meeting in the hot Philadelphia summer of 1787.
At the time, the 13 American states still operated under its first governing document, the Articles of Confederation, which gave every state equal power — precisely one vote each — in the purposefully weak, single-branch national government. Written during the Revolutionary War, the Articles reflected Americans’ reluctance to give up too much authority to a distant capital, whether it sat in London or Philadelphia, so most decisions were left to states to handle their own business. Though the Articles ultimately lacked enough uniformity to allow a viable nation to prosper, many revolutionaries defended its anti-authoritarian premise even as it proved unworkable. When American leaders looked to either amend or replace the system, continued union required that states would not totally give up their sovereignty to a central capital.
Meanwhile, small states fiercely protected state equality, worrying that population-based representation at the national level would allow larger states to push around the tiny ones. Had the Constitution allowed representation based solely on population, one large state, such as Virginia, could outvote several of the smaller states combined.[3]
Therefore, to secure smaller states’ support for the new Constitution, they were given power disproportionate to their population in a couple key ways. One was in the Senate, where every state sent the same number of Senators to the federal government. Since nothing that passed in the House could become law without the Senate (much to the chagrin of the modern House), the smaller states stayed protected. The other protection for smaller states was disproportionate power when picking the chief executive through the Electoral College.[4]
The combination of state sovereignty and the political survival of smaller states gave us federalism, a system that has treated us pretty well over the last 230 years. Each state is its own unique polity; like the national government, each state has its own constitution, bicameral congress (except for the weirdos in Nebraska), chief executive (a governor), and court system. States can make their own laws, assuming they don’t contradict the U.S. Constitution. Thus, each state, as titan Supreme Court Justice Louis Brandeis put it, is a “laboratory of democracy” fiddling with political, legal, and social ideas, many of which make the grade and jump to the national level if they work for the country and stay contained if they don’t.
Ultimately, local decision-making was at the crux of the American Revolution and the Constitution that followed it. It’s the foundation of American government, around since our country’s inception.
In addition to protecting federalism, another motivation behind the Electoral College was the installation of a barrier between the people and the chief executive. Whether they worried that people were too uneducated or given to reactionary, emotional mood swings, a purely democratic system risked turning into a “tyranny of the majority,” sometimes called a “mobocracy.” Our founders feared giving the voting public too much of a say.
Our Constitution consistently reflects this fear. Believe it or not, the people could not directly elect any part of the federal government except the first branch’s lower chamber: the House of Representatives. Before the Seventeenth Amendment, the upper chamber — the Senate — was appointed by state legislatures. The second branch, the chief executive, was picked by the Electoral College, which itself was also chosen by state leaders. Finally, federal judges, then and now, were appointed by this executive — who wasn’t chosen directly by the people — on advice and consent of the Senate — which, again, wasn’t elected by the people either. In sum, the people only directly voted for one half of one branch, or one-sixth of the government!
Meanwhile, that one-sixth — the House — couldn’t even do anything without agreement of the Senate, and then the chief executive usually had to sign off on it, so the Constitution hamstrung the people’s chamber. Thus, our founding fathers set up a government that not only had internal checks and balances, but a check on the people’s authority as well. They didn’t trust you.[5]
That distrust erected a wall between the voters and their election of the president. When Alexander Hamilton defended the system in Federalist No. 68, he argued that instead of allowing the volatile American people to make an unchecked bad decision, the college could be a last line of defense. Electors would be “most likely to have the information and discernment” to make a good choice. Instead of allowing a gullible electorate to be taken advantage of by a passionate demagogue, Hamilton believed that “the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation.” In our time as in theirs, it is decidedly impossible for millions of voters to have quality deliberation across class, race, and region (thank a lot, Fox and CNN), so our founders reasoned a smaller, more educated, more reasonable body should do it for us.[6]
Of course, in practice, this justification has some holes:
- Electors have never acted too independently of their state’s voters. Even in the five presidential elections where the popular vote winner lost in the Electoral College, it was always just a quirk of the system, never a case of enough electors faithlessly overruling their states’ wishes to the point where it swung an election.
- It’s also worth noting that states’ electors don’t actually meet to “deliberate.” Each state’s electors vote on their own.
- In the modern era, I can’t imagine the kind of uproar that would result from such an Electoral College veto over a state’s wishes. If it didn’t happen in 2016, when Donald Trump won the presidency (still crazy to think about), I don’t think it ever will.[7]
“If the manner of it be not perfect, it is at least excellent,” Hamilton wrote. Indeed, it’s not a perfect system, but that doesn’t take away from its wisdom. The Electoral College, like the rest of the Constitution, is most admirable when it not only protects us from government, but when it protects us from ourselves as well.
That brings us back to my opening question. I’ve given you time to think, so what is your answer? Which side are you on: majority rule or minority protections? How you answer that question might inform your stance on the Electoral College.
Before you lock in your response, perhaps your stance could be clarified if you remembered the story of Socrates‘s trial. Charged with rubbishness — disrespect toward the gods and corruption of the Athenian youth — a vote from citizens determined his guilt anyway. After finding him guilty, the same group voted on his punishment, and they chose execution. One swig of hemlock later, the greatest Western philosopher of his time was dead. Thus, as the saying goes, “Democracy killed Socrates.”
The lesson, of course, teaches us that just because a majority of people want something does not mean they should necessarily be given it. Majority rule is not inherently good. In fact, in Socrates’s case, it was quite dangerous. It’s the mob. Instead of pure democracy, a government would be wise to have stability through limited government and bulwarked institutions that can survive the capricious whims of the governed. The people should certainly have a say, but they should not be unchecked. That’s a concept on which our republic was founded, and some could argue that’s the very point of government: it provides protection from ourselves.
The Constitution overflows with protections against the majority and aggressive changes to our foundational laws.
- If a populist uprising peaks at a Congressional election, it can only take over the House and, thanks to staggered terms, one-third of the Senate.
- In the meantime, separation of powers and checks and balances help slow the gears of government — a frustrating but ultimately protective process.
- It’s exceedingly hard to amend the Constitution without broad support across the country and the states, so changes can’t happen merely because a small majority of people with a transient desire gain some political power.
- The first ten amendments further protected citizens.
All these mechanisms would be incredibly hard for a majority of Americans to overcome in a short amount of time. And that’s a good thing.
The Electoral College recognizes that. It does not give into the mob. Instead, it considers the diversity of an electorate, aiming to represent a mixture of minority interests across the country, not just the interests of the majority. Like it or not, President Trump won the industrial North (Rust Belt), Deep South, and Midwest while getting pretty close in two northeast states (New Hampshire and Maine). Hillary Clinton won racial minorities in urban areas, but not constituent minorities across a variety of regions. In contrast, 2008 Obama won Florida, Ohio, North Carolina, and Iowa — four very different states. Clinton lost them all.[8]
To win the majority of electors, a candidate must gain the confidence of the greatest number of interests in the country. Or, as someone once said in a typically imperfect way:
The ability to speak to a diversity of interests is an important quality in the head of state.[9]
And we mustn’t forget the federalism factor. The states agreed to the Constitution under a certain premise, a premise necessary for them to abandon the Articles of Confederation: states had to have a say, and the smaller states could not be easily overwhelmed. Are we now going to renege on that agreement because we don’t like the President?
Keep in mind that if you think smaller states having disproportionate power is unfair, you’re not only arguing for tossing the Electoral College, but the United States Senate as well. Why should Wyoming and California have the same power in the chamber, right? And since we’re ignoring individual states’ voices in the federal government, why not scrap state sovereignty altogether? Let’s convert to provinces under full control of Washington. No more local control. No more laboratories of democracy. Just a national unicameral Congress that serves alongside a popularly elected president. The 51 percent reign supreme.
As a holder of many minority opinions, that would break PPFA’s heart and terrify its soul.
Verdict: Sorry, Dems, but I say keep the College. I am, however, very much open to switching away from winner-take-all Electoral College states. Proportional results in the states — for example, a close vote in a state would mean a close electoral split in its delegation — would maintain smaller states’ relevance while also reflecting the will of political minorities in all states, decreasing the importance of swing states. More Americans would be motivated to vote. Voting shenanigans could still be contained. Remember, the Constitution does not say electoral delegations must be winner-take-all. We can do this!
But we probably won’t. I hear it’s pretty hard to make big changes.
FOOTNOTE:
[1]Slate also concludes a similar effect on Congress: “Because the Electoral College mirrors the allocation of representatives in Congress, this map also charts legislative power; 143,000 people in Wyoming have the same number of legislators in Congress as 500,000 in New York.” A double-advantage for smaller, predominantly Republican states.
[2]The courts have already used the Equal Protection Clause to strike down particularly egregious gerrymandering and the Florida recount in 2000.
[3]As evidence, consider the first House of Representatives. In the House, the size of a state’s delegation ties directly to its population. Virginia, the eighteenth century’s largest state, sent 10 delegates to the first House. The least populated states, Rhode Island and Delaware, each got one. The next smallest, New Hampshire and Georgia, each received three. Thus, a united Virginia delegation could outvote the four smallest states combined, 10 to 8.
[4]Shortly after the Constitution’s ratification, the Bill of Rights added a third protection of states’ rights: the Tenth Amendment.
[5]And, considering you made the dubious decision to spend a part of your day reading this website, can you blame them?
[6]Another crucial piece of historical context: in the founders’ era, it was rare to be a nationally known figure. News moved slowly, and all politics was local. While Americans might know their own state’s or region’s leaders, few national figures aside from George Washington (the man assumed to be the first president) were household names. What the framers instead expected was for citizens to vote for their own state’s or region’s leaders, meaning the winner would carry an almost non-existent national mandate. That’s partially why the Constitution tasked the House of Representatives with determining the winner if no candidate reached a majority, a “tiebreaker” that Virginian George Mason predicted would be necessary “nineteen times out of twenty.” Thus, a learned group of electors could hash out the contenders that made sense and only vote among them.
[7]That’s something that made this past election so weird. Hamilton thought the College could ensure “that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” Democrats and Republican Never-Trumpers figured if ever there was a time for the will of the people to be overruled by a more reasonable body, it was when the most uneducated, inexperienced, unprepared, and clownish mainstream candidate in the country’s history won the election. Federalist No. 68, anticipating a guy like Donald Trump, even acknowledged a fear of someone with “Talents for low intrigue, and the little arts of popularity.” And yet, the weird part is that overturning the results of election night still wouldn’t have quite been overruling the will of the people, as more Americans had voted for his opponent. So if the 2016 election doesn’t get overturned by the Electoral College, will any?
[8]And let’s not forget, even if it were a national popular vote that determined the winner, Hillary Clinton’s penchant for losing national elections that she’s supposed to win is almost unparalleled. Under different rules, that campaign would have been waged very differently, and Trump could well have won it anyway.
[9]I’d like to think speaking in coherent sentences and paragraphs is another attractive quality in a head of state, but the electorate disagreed.
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