Defending the Electoral College

Who would ever have predicted that the Electoral College would attract so much public discussion, let alone the last-ditch hope of the anti-Trump fanatics? Given so many misstatements about it, let me briefly set the record straight. Begin with the argument that the Founders intended the Electoral College to act as a final quality control review board to weed out unfit demagogues – that is, Donald Trump. This is a complete lie, though some pundits quote Alexander Hamilton's Federalist 68 in support of this "final judge," argument, an argument lacking any legal standing. The Constitution stipulates only a single qualification – electors cannot at the time of their vote hold federal office (Article II, Section 1). Nothing is said about age, experience, background, or any other trait implying an ability to reject the unworthy. Especially relevant, there has never been any effort to enshrine this talent into laws. Picking judicious, independent-minded electors is a non-issue. The opposite is true – electors overwhelmingly tend to be party stalwarts.

Equally dubious is the oft heard claim from Hillary's fans that the College is inherently undemocratic, and since Clinton won the popular vote, the only true measure of democracy, she "really" won the election, and Trump's electors ought to honor "democracy" by stepping aside for Hillary. Totally false. Prior to the Constitution's final form, the mechanism to choose our chief executive went through multiple versions and direct election was considered and then rejected. Opponents believed that such a mechanism in a vast nation lacking decent communications would cede power to only a few wealthy notables whose resources permitted a nationwide campaign. Rather than being the authentic voice of the people, this plebiscite would, in the words of South Carolina delegate Charles Pinckney (1757-1824), be led by "a few active and designing men." In other words, the staggering cost of a "national" campaign guaranteed plutocracy, not popular rule. By comparison, appealing to a hundred or so legislatively selected electors, though hardly easy, was at least possible for candidates lacking wealth and a towering nationwide reputation. Moreover, in the context of the day, allowing state legislatures – not the voters acting directly – to choose electors was widely viewed as a democratic mechanism since state legislatures were dominated by farmers, tradesmen, small merchants, and other "ordinary" people. Nor is there anything undemocratic about legislatures' delegate power, including the power to choose a president. To further avoid "a dangerous tendency to aristocracy," the Constitution also authorized the directly elected House, not the Senate, to elect the president if no candidate secured a majority of the Electoral College vote. On balance, the Electoral College is a democratic element of the Constitution. What about candidates winning the Electoral College vote but losing the popular vote, as occurred with Trump and Clinton plus the past elections of 1824, 1876, 1888, and 2000? Surely, this is smoking-gun proof of the Electoral College's anti-democratic nature. Not quite. The Constitution is silent about how state legislatures choose electors, and in the Republic's early years, states used a district system where the state was divided into districts where each district picked a single elector. In fact, a similar system is currently used by Maine and Nebraska (four electors each) – you get a single electoral vote by winning a congressional district and then two for winning the state overall. But by 1832, the district plan gave way to the unit or winner-take-all system (except, as just mentioned, Maine and Nebraska), so winning by a hair meant harvesting all the electoral votes. Thus, it is the unit rule intended to maximize a state's political clout, and less the Electoral College per se that produces this "undemocratic" outcome. Now, those preferring a tighter relationship between the popular and Electoral College votes need only to convince their state legislature (not pass a constitutional amendment) to make the allocation of electors more proportional to the popular vote. For example, since California has 55 electoral votes and if Trump received 40% of the state's popular vote, he would receive 22 electoral votes. To be sure, not perfect proportionality, but a big improvement. What about the bias introduced by giving small states "bonuses" by awarding them two electoral votes regardless of population? Statistically true, but this was the price paid for the union – absent this "bonus," small states like Delaware might never have ratified the Constitution. Such distortion is certainly a bearable price of the Union (and eliminating this bonus would require a constitutional amendment). Needless to say, today's political realities make it unlikely that Democrats would pursue this relatively easy way to boost proportionality. Yes, Democrats would pick up a few electoral votes in vote-rich GOP-dominated Texas, but they would have to surrender far more in their big-state strongholds of California; New York; Illinois; and, most of the time, Pennsylvania and Michigan. Meanwhile, the Republicans would lose a vote or two in Idaho, South and North Dakota, Wyoming, and other thinly populated states. It is hardly surprising that Democrats are cool to this proportionality solution. Recall how the domination of large population states was commonly labeled Hillary's "Blue Wall" that gave Trump a far narrower path to victory. To be blunt, Democrats prefer only solutions to the popular vote-Electoral College distortion that gives Democrats an advantage. Now for what appears to be the last-ditch effort for those horrified by the Trump victory: convincing Trump electors to jump ship and hand over victory to Clinton, i.e., hold Presidential Election 2.0. This is a complicated legal issue, and unlikely to happen, but one thing is clear – playing the unattached or faithless elector game opens a Pandora's box, and Democrats may rue the day they introduced this tactic to American elections. To appreciate the two-edged sword nature of playing with the Electoral College, recall the 1960 Kennedy-Nixon contest. Back then, much of the South bitterly opposed black civil rights and sought to use the Electoral College to pursue this anti-civil rights agenda. Both Alabama and Mississippi offered voters the option of choosing unpledged presidential electors and 15 of these "free agents" were elected. All initially pledged support for Virginia's segregationist Senator Harry F. Byrd, but due to the interval between the election and the actual casting of the Electoral College vote, they had yet to formally cast their electoral vote for Byrd. The aim was not to elect Byrd, but to negotiate with Kennedy and Nixon over civil rights. Alternatively, if they did choose Byrd, it was hoped that neither Kennedy nor Nixon would secure an Electoral College majority, and the House, with each state casting a single vote, would decide the presidency. Now, given numerous Southern states (conceivably 12), the South would bargain to extract concessions from either Nixon or Kennedy. What saved the day from this devious strategy was Kennedy winning 303 electoral votes without these "free agents" (270 were then needed to win). The 1960 maneuver came up short, but future machinations to peel off a few GOP electors of this sort do not favor the Democratic Party. Specifically, since, absent an Electoral College majority, the House decides, and the "one state, one vote" rule advantages the GOP, since Republicans tend to win more states. In this House-based game, a few voters in red Wyoming, North Dakota, and Idaho count the same as millions of voters in blue California, Illinois, and New York. Overall, throwing the election into the House via pressuring electors is an exceedingly difficult strategy and will succeed only if Democrats control 26 state delegations, a reality that may well be a long time in coming. The moral of this story is clear: fiddling with the Electoral College is risky business, and today's winner could be the next election's loser. The Electoral College is not a perfect democratic instrument, but a system of direct popular election has its own flaws – for example, encouraging vote fraud nationally. Recall Voltaire's adage about the perfect being the enemy of the good. To win elections in America, one plays by the rules, and losers should not try to win by retroactively altering the rules. It's that simple.