The Indefensible Electoral College

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Albin Lohr-Jones/Sipa via AP Images

When someone as manifestly unfit for office as Donald Trump can be elected president of the United States, it represents a collective institutional failure. But it is important to keep one crucial fact front and center: The American electorate did not choose him. By the time the vote counting is finished in California, Hillary Clinton will have received roughly 2.5 million more votes than Trump. This is a larger margin than Richard Nixon in 1968 or JFK in 1960 had achieved. The people's choice did not become president because an indefensible anachronism malfunctioned for the second time in less than two decades. The lessons of this should be clear. In the long term, the Electoral College must be eliminated or circumvented; in the short term, the fact that Donald Trump was not the choice of the American people needs to be front and center to the progressive opposition to his administration.

Because of the strong tendency to valorize the founding fathers and the Constitution, many people will still defend and rationalize the Electoral College. But it's exactly as indefensible as it seems on its face. Departing from the norm that the candidate with the most votes wins places the burden of proof on the deviant institution. Defenders of the Electoral College will often invoke the phrase "the United States is a republic, not a democracy," or observe that the United States is not a "pure democracy." But these explanations do not constitute meaningful defenses. Even if the American president, as in most other democratic countries, was elected by popular vote, the United States would still be a representative democracy, not a pure one. Given the complexities of American government in the 21st century, the concept of pure democracy, where every citizen votes on every policy issue or initiative, is meaningless.

The Electoral College has to be defended on its own merits. Which is a problem for apologists, because it can't be. Indeed, even the origins of the Electoral College make it look worse, not better. Some founders, including James Madison, preferred a direct popular vote. But the Electoral College was a compromise made to accommodate other concerns. Some founders believed that the citizens' political ignorance would be a problem, and that the public should have their votes filtered, first by elites in the Electoral College and then by members of Congress (where the founders, who didn't anticipate the formation of a party system, expected most elections to be decided.)

The Electoral College also was designed to increase the representation of slave states; slaves, of course, did not vote but were counted as three-fifths of a person when apportioning the House of Representatives-which, in turn, determined the representation states received in the Electoral College. It should go without saying that both of these justifications are not merely inadequate but repugnant in 2016. Moreover, the Electoral College still has a distinctly white supremacist tilt, as it substantially over-represents white voters, a factor that contributed to Donald Trump's victory despite losing badly to Clinton in the popular vote.

Some will defend the Electoral College on the grounds that it requires presidential candidates to pay more attention to small states. But there is little reason to give small states, already overrepresented somewhat in the House and massively overrepresented in the Senate, yet another thumb on the scale. Besides, if it were a good idea in theory, it doesn't work in practice. As Ari Berman of The Nation observes, "94 percent of campaign visits and money went to just 12 states." To defend the Electoral College on the grounds that it broadens the scope of presidential campaigning is truly perverse.

Perhaps if a popular vote system had been in place, the campaigns would have been run differently. According to this line of reasoning, we still cannot be sure that Clinton would have won. If Clinton's margin were smaller, something like a few hundred thousand votes, this would be a fair point. But it is implausible in the extreme to think that Trump could have picked up more than two million net votes by campaigning differently, particularly since mobilizing voters in the otherwise neglected large states of New York, California, and Texas who would be far more likely to favor Clinton than Trump.

If the Electoral College cannot be defended, what can be done?

This is a more complicated question. California Democratic Senator Barbara Boxer filed a bill that would abolish the Electoral College by kicking off the arduous process of amending the constitution to establish a popular vote system. The bill will go nowhere fast in a Republican Congress.

Three eminent legal scholars have advocated a more radical, short-term solution. They have argued that the Electoral College should fulfill its original function by having the electors independently choose Clinton as the better-qualified candidate with greater popular support. There is a certain dark irony to the fact that a system designed to prevent the people from choosing an unqualified demagogue has resulted in the election of an unqualified demagogue not chosen by the people.

But a move by the electors to override the Electoral College and elect Clinton would be a disaster. Her presidency would be fatally hobbled from Day One. The potential for violence would be terrifying, and the presidential election system would be permanently broken-and the Republicans would declare any future Democratic winner an unqualified demagogue. The cure would be worse than the disease.

The Electoral College needs to be eliminated and replaced with a popular vote system. But this is easier said than done. Under current conditions, a constitutional amendment (which requires two-thirds of both houses of Congress and three-fourths of state legislatures to all agree) would be nearly impossible. One alternative is the National Popular Vote: Under this bill, states representing a majority of the Electoral College would agree to award their electoral votes to the popular vote winner. This plan also faces a major barrier: With Republicans in control of most state houses, securing a majority of legislatures will be impossible.

The fundamental problem reformers face is that the two Electoral College malfunctions in the past 16 years have both benefitted Republicans. Had John Kerry gotten 150,000 more votes in Ohio in 2004, he would have won the presidency without winning the popular vote, and a sequence in which each party got stiffed in turn might have created the necessary bipartisan consensus to change a bad system. But with one party clearly benefitting from the Electoral College, getting rid of it will be impossible.

In the meantime, the Democrats need to emphasize that Donald Trump was not the people's choice. Paul Ryan has already claimed a mandate for a radical and deeply unpopular policy agenda. More people voted for Clinton's agenda, which should be a good reason for Democrats to unite in opposition to put pressure on wavering Republicans in the Senate. The Democratic Party cannot normalize the Trump administration. Trump's popular vote loss is a perfect way of illustrating his incompatibility with norms of American governance.

The Electoral College, tilting the playing field in favor of a party increasingly hostile to racial minorities has the regrettable effect of shielding it from reform in the next few years. But Hillary Clinton got more votes than Donald Trump: That is an undisputable and politically significant fact that progressives need to point out to the American public early and often.