Edward B. Foley

Opinion contributor

Donald Trump amassed 101 Electoral College votes in states where he failed to win 50% of the popular vote. In each of these states, more voters voted for other candidates than for Trump, yet he received all the Electoral College votes. This windfall amounted to one-third of his total (304). Without it, he would have fallen 67 short of the 270 required to prevail.

Despite everything said about the 2016 election, insufficient attention has been paid to this basic fact. It means that while Trump technically achieved an Electoral College victory, he did so without genuinely receiving the support of the electorates in the states responsible for his Electoral College win. That is the opposite of what the architects of the Electoral College had in mind.

More:Let's fix the Electoral College. It'll be easy compared to gerrymandering.

More:The Russians are hacking. Luckily Trump voter fraud commission isn't in charge.

This point is different from the one about Hillary Clinton winning almost 3 million more votes nationally than Trump. That much-mentioned truth is irrelevant to how the Electoral College is supposed to work. It would matter if there were any realistic chance of replacing the Electoral College with something different, but there isn’t. And meanwhile, it blinds us to the problem that in 2016, the Electoral College did not function properly even according to its own logic. As long as we are stuck with the Electoral College, we should make it operate as intended.

This requires fixing the state laws that implement the Electoral College system. The good news is that each state already has the constitutional power to repair its own laws, without the need for three-quarters of the states agreeing to a constitutional amendment or some sort of multi-state compact that would not take effect until enough states sign on. If just a couple of states had adopted the necessary fix before last year, Clinton might be president now. To understand why, let’s review what went wrong, why it’s inconsistent with the Electoral College’s original intent, and how states already are empowered to remedy the defect.

Trump was able to win these states without a majority because there were more than two candidates on the ballot. Without Jill Stein and Gary Johnson in the mix, Clinton might have received more votes than Trump in some of these six states. If she had done so in just Florida and either Pennsylvania, Michigan, or North Carolina, that would have been enough for her to win the White House.

The Electoral College and majority winners

The Electoral College’s architects understood that an election with multiple candidates might produce a winner with under 50% of the votes, an outcome they wanted to avoid. That’s why they insisted that to win a candidate must receive a majority, and not merely a plurality, of Electoral College votes. And if no candidate does, then a candidate must get the support of a majority, and not merely a plurality, of state delegations in the House of Representatives.

The Founding Fathers thought each state would take care to assure that a candidate could not receive its Electoral College votes without support from a majority of its voters. States initially complied with this expectation. In Massachusetts and New Hampshire, for example, if no candidate won a majority of the popular vote, the legislature would appoint the state’s electors. New Hampshire then switched to a runoff, in which voters cast a second round of ballots if no candidate received a majority in the first round.

Later, states moved to letting presidential candidates get all of a state’s Electoral College votes with only a plurality of popular votes. This was a mistake and inconsistent with the original vision.

More:On foreign election interference, Manafort indictments miss real threat

POLICING THE USA: A look at race, justice, media

Restoring majority rule

States can return to the original plan by adopting the same kind of runoff that New Hampshire had or, instead, a modern form of runoff that avoids the need for a second round of ballots. Known as instant-runoff voting, it enables voters to rank their preferences among multiple candidates. Had this been used last year, a voter could have ranked Stein first, Clinton second, and Johnson third (for example). These rankings make it possible to eliminate candidates with less support than others and then identify which remaining candidate is preferred by a majority of voters.

If just two states had adopted a runoff, it could have made the difference in which candidate became commander in chief. The highest reform priority between now and 2020 should be to convince battleground states — like Florida and Michigan, where voters can adopt reforms by initiative and thus bypass recalcitrant legislatures — to adopt whichever type of runoff they prefer.

The imperative is to prevent another president who wins the White House without really winning the support of the electorates in the states that determine the outcome. The Founding Fathers would see that as a subversion of the Electoral College system. So should we.

Edward B. Foley is a professor and directs the election law program at the Ohio State University Moritz College of Law. Follow him on Twitter: @Nedfoley