How the Electoral College Distorts Our Democracy

With Hillary Clinton's majority in the popular vote now beyond 2,800,000, those who voted for her are thoroughly disillusioned by a system that doesn't look like a democracy at all. They are discovering — the young among them for the first time — that America's electoral system is rigged indeed, but by an ancient construct called the Electoral College.

The Founders wanted the slave states to join the Union so they acceded to counting slaves — who did not have the right to vote — each as 3/5ths of a person toward a state's population tally, which awarded a state disproportionate extra votes in the Electoral College relative to non-slave states where only those eligible to vote would be counted.

The Founders also did not fully trust democracy. The Electoral College served as a barrier against the electorate choosing a populist. For that reason, the electors are not bound to vote in league with the voters in their state. They are free to vote as they please, although in present times, virtually none go rogue; they throw all their votes to the candidate that wins the majority in their state. Thus in 2016, in Donald Trump the college itself produced the opposite of the original intent by certifying a populist — defined as an anti-establishment iconoclast with policies designed to appeal to the common person rather than traditional party adherents. "The Founders selected the system in part to moderate the worst impulses of a concentrated majority", says a Wall Street Journal editorial with no hint of irony. It was those who voted for Clinton who were evidently possessed by their worst impulses.
Demonstrators in Baltimore



hostage to the constitution

Instead of your vote for the presidency awarded directly, the Constitution prescribes that "Each State shall appoint…a Number of Electors" in your stead, and in 48 of the states, all of their votes are given to the winning candidate in those states. Only Maine and Nebraska apportion votes. As with the primaries, if you live in a state where a majority, however slim, vote for the other party, you might as well not exist. Your vote is nullified. You have been disenfranchised. Or you could say it has been stolen and given to the opposing candidate without your consent.

Nothing constitutionally prevents the electors in the various states from apportioning their votes like Maine and Nebraska, contrary to their states' usual practice, nor prevents them from flipping their state's vote to the other candidate altogether. A Change.org petition that had been signed by more than 4.3 million people at this writing asks them to do just that, urging Electoral College members to cast their votes for Hillary Clinton. It won't happen.

Because minority votes are not counted at all when all of a state's votes are handed to the majority candidate, the effect of the Electoral College is for states with foreordained outcomes to be ignored. In 2012, candidates campaigned in only 10 states after the conventions, Romney bypassing Democratic strongholds on the West Coast and the Northeast, and Obama flying over the South and Plains states. The other 40 states never got to see the candidate who took their votes for granted. Why spend resources on states where the minority votes are tossed in the trash?

The same pattern repeated in 2016, with Trump ignoring Democratic strongholds such as California and his own, New York, although toward the end Hillary Clinton, believing herself to be ahead, did take a stab at a couple of Midwest states. The result is lower turnout in the states that only get to watch from the sidelines. Why bother to vote in states where your minority vote is tossed in the trash?

Far more serious is that the Electoral College contrivance makes possible going against the public will and taking the presidency from the candidate who has won the national vote. It happened three times in the 19th Century, lay dormant throughout in the 20th, then struck in 2000 when George W. Bush was declared the winner despite having lost to Al Gore by more than a half million votes, and now has repeated with virulence with Hillary Clinton predicted to gather some 2 million votes more than Donald Trump. This makes a joke of democracy .

The election of 2004 came close. Had 60,000 Ohio votes shifted John Kerry's way, handing him all of that state's Electoral College votes, he would have won the presidency despite Bush's lead of some three million in the popular vote count.

There is widespread dislike of the Electoral College. But as did constitutional originalists such as Antonin Scalia, there are those who cling with idolatrous zeal to every word of this increasingly creaky document from two and a quarter centuries ago. And so, we have absolutists against any change such as Ted Cruz saying, "the founding fathers fought and bled for freedom and then crafted the most miraculous political document ever conceived, our Constitution". Without the Constitution's Electoral College provision, “You would not have any real representation of the people who are basically in the middle of the country", is Utah Senator Orrin Hatch's concern. "If it was just the large states, we’d be dominated completely."

Each state is accorded electoral college votes equal to its number of House representatives and its two senators, so what Hatch is really saying is that small states should have greater proportionate weight than larger states. That's so because their two senator votes are the same as the senator votes of the largest states. At the extremes, the two senator votes fatten California's electoral count by about 4% but they triple Wyoming's, which has but one representative. Ditto Montana, the Dakotas, Alaska, Vermont, Delaware and the District of Columbia. Next come five states with two House representatives and four college votes. For them, the senator bonus doubles their heft beyond their population's proportion to the country. You could that these are the states' superdelegates.

There are now calls for a constitutional amendment to do away with the Electoral College, but amendments have become all but impossible in this polarized country, especially one that would require Congress members from the states listed above to vote for principle rather than self-interest. The steep climb that Article V dictates — endorsement by two-thirds of the House and the Senate and then ratification by three-quarters of the state legislatures — has become insurmountable in our now polarized country.

It didn't used to be that way when there was a country unified in fixing what was not working. Testimony to that is that five amendments were adopted in just the 20 years of 1951 to 1971. That could have been six; a move to abolish the Electoral College in 1970 was filibustered out of consideration by small state senators.

There is something ludicrous about being so hog-tied by the hoary Constitution that schemes have been hatched to outwit it instead of fixing it. But contrivances have been put forth to do so, given the impossibility of a repeal amendment. States could agree to abolish winner-take-all and split their electoral votes proportionate to the popular vote for each candidate. But the bigger states doing so would, by splitting their votes, empower still further the bloc of small states that would hand all votes to one party.

More vigorous is the proposed National Popular Vote interstate compact. States collectively representing 30% of the Electoral College have so far banded together in an agreement that they will cast all their votes for the candidate who wins the national popular vote, a pledge to become effective once states representing half the college's votes (270) sign on. Enough further states have pending legislation that would bring the total to 46%.

But all such schemes have problems. Voters would likely challenge their state if it swung all its electoral votes to the national winner when the majority of the state's voters had voted for the losing candidate. Doesn't that steal your vote just as does the Electoral College? Actually, it doesn't, because your vote will have been counted in arriving at the national total. It's more like a committee changing its vote to unanimous as an expression of unity once the actual vote's outcome is clear.

The National Popular Vote also overwhelms the holdout states who do not join in the compact, especially the small states with their super-senators. Outsider states would probably build a case against the NPV that it's somehow unconstitutional for a state to throw all its votes to the candidate that a majority of its citizens voted against.

These defects in our voting practices — they're just the half of it. We haven't even touched on gerrymandering and the raft of new state laws that were engineered to throw the vote to one party. Taken all together, it's a stretch that we call this a democracy, and a wonder why Americans haven't insisted that it be fixed.