Every four years, Americans learn something about the Electoral College. On election night, it becomes something of a game, with individual states being “called” for one candidate or another, and the winning candidate getting all of each state’s electoral votes (with the exception of two small states, Maine and Nebraska, which allocate their votes proportionally by congressional district). The candidate who gets a majority of the Electoral College vote, according to the Constitution, becomes president.

Neil Kraus

This year, for the second time in five presidential elections, the winner of the popular vote will not become the president. In 2000, Al Gore got nearly 550,000 more votes than George W. Bush, but Bush went on to become president because of the Electoral College vote. With the final count for 2016 yet to be determined, currently Hillary Clinton has roughly 1.27 million more votes than Donald Trump (1.0 percent of the total vote). Yet Trump will become president. And let us not forget that in 2004, had John Kerry received 120,000 more votes in Ohio, he would have become president despite losing the popular vote by over 2.5 million.

The Electoral College was created by the Framers of the Constitution as a method of preventing average voters, who were not fully trusted, from directly electing the president. In Federalist #68, Alexander Hamilton defended this system: “It was equally desirable, 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, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.” The expectation was that states would choose electors, who would deliberate in the state capitols, and each elector would choose the two people best qualified to be president. The candidate with the most votes would be president, and the one with the second highest vote total would be vice president.

Changed by the 12th Amendment

The 12th Amendment changed this system so that electors chose one person for president, and one for vice president. The fact that each state received the number of electors equal to their total number of representatives in Congress was also a way to ensure that slave states had sufficient influence in choosing presidents. The Constitution also mandated that slaves would be counted as 3/5 of a free person for population purposes, and in combination with equal representation in the Senate, the South was poised to have significant influence in the national government.

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Beginning with the election of 1820, however, the states began to move toward a winner-take-all slate of electors based on each state’s popular vote. Hamilton and James Madison objected to this, saying it violated the spirit of the Constitution. Nonetheless, the winner-take-all system was in place, and within the context of Jacksonian democracy, in which suffrage was gradually being extended to all white males, there was no going back to the previous, elitist system of electing the president.

While we still have the same basic system of electing the president in place today, all of the other conventions about political participation dominant in the late 18th century have, one by one, been transformed through constitutional amendments, federal and state laws, or Supreme Court decisions. Some of these fundamental changes include: the 14th Amendment, which gave voting rights to former slaves; the 17th amendment, which allowed for the direct election of senators; the 19th Amendment, which established women’s suffrage; the 1965 Voting Rights Act, which prohibited racial discrimination in voting; the establishment of the one-man (one-person) – one-vote principle, which affirmed that all legislative districts have to be equal in population; and the 26th Amendment, which extended voting rights to all 18-year-olds.

Further, the creation of direct democratic processes in 20th century state and local politics — including the initiative, referendum, and recall — would have been unthinkable in the early republic. Considering how we have fundamentally redefined democracy since the founding period, it is remarkable that we still even have the Electoral College.

Untenable: Citing the Framers’ intentions

Those who support the Electoral College on constitutional grounds, specifically the intentions of the Framers, are in the untenable position of defending every other law and practice of the founding period that limited suffrage and participation. Besides, no one would even seriously think of arguing that we ought to have the Electoral College function the way the framers actually intended, as a group of free agents filtering public sentiment and coming to their own conclusion about who is most qualified to be president.

The main political argument, one I have heard repeated too many times recently to count, is that it is too difficult to change the Constitution. As a political scientist, I know the difficulties of the amendment process. But this is not a principled argument in favor of the Electoral College, and does nothing to advance public debate on the issue. Rather, this admission simply fuels anger toward the government and the political process. Moreover, because the text of the Constitution gives states substantial latitude in terms of how they allocate their Electoral College votes, we can reform the current system in any number of ways without a constitutional amendment. For example, the national popular vote model would guarantee that the states award their electoral votes to the winner of the popular vote. In no way does the Constitution mandate the winner-take-all system.

Keeping the Electoral College because it helps smaller states is also dubious when one considers all of the votes for losing candidates in smaller states that are either solidly Republican or Democratic (think about all the Democrats in states like Idaho and Republicans in states like Vermont). And the majority of the largest states are also dominated by one party, such as California, Texas, Illinois and New York. Those voting for the losing party in each of these four states make up a significant percentage of the American electorate, yet with the Electoral College, one could reasonably claim that the nearly 3.9 million Texans who voted for Clinton or the 3.2 million Californians who voted for Trump may as well not have voted at all. As my late father always used to ask me each presidential election, “Neil, as a Republican, why do I bother voting in New York?”

If Trump had lost …

Let us imagine for a moment what would be happening if Donald Trump were on the losing end of a split between the popular and electoral vote. In the last several weeks of the campaign, Trump repeatedly refused to state unequivocally that he would accept the results of the election if he lost, and the question assumed he would lose both the electoral and popular vote. If Trump were in Clinton’s position now, the usual voices would browbeat the issue onto the political agenda, and legislative bills and constitutional amendments would be introduced and formally considered in the very near future.

Powerful institutions and individuals have known for decades that if you want to change laws, policies, and government in significant ways, you first have to engage in an extended public relations campaign. Recent examples of this are numerous, including the systematic effort to convince the public of alleged voter fraud, thus the need for voter ID laws, and the ongoing effort to cast doubt on all scientific claims about global warming. Both of these campaigns have been enormously successful in terms of influencing public opinion and ultimately laws and policies. Unlike both of these efforts, however, which are based largely on falsehoods and misleading claims, making the case against the Electoral College is relatively easy because it is based on basic historical events that we all learned in high school within the context of the evolution of our definition of democracy.

The office of the presidency is the only elective office in the United States that one can win without winning a plurality – without winning a plurality – of the vote. With the population continuing to move to the nation’s larger metropolitan areas, which are predominately located on the coasts, the possibility of another 2000 or 2016 happening in the near future remains very real. Advocates of democracy should not wait until this happens again, or simply throw up their hands in defeat. If we choose not to engage in this debate, we choose to accept an anti-democratic institution that has not functioned according to the expressed rationale of its creators for nearly 200 years and bears no relationship to our contemporary understanding of democracy. We will continue to sacrifice democratic legitimacy, public cynicism and distrust of government will grow, and tens of millions of Americans will not be able to meaningfully participate in electing candidates to the highest office in the land.

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Neil Kraus, of St. Paul, is a professor and chair of political science at the University of Wisconsin, River Falls. He is the author of “Majoritarian Cities: Policy Making and Inequality in Urban Politics.”

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