11/10/2016 01:45 pm ET

Why Do We Have The Electoral College?

Why Do We Have the Electoral College
By Leon Friedman

Very little attention is being paid to the fact that Hillary Clinton apparently won the popular vote, even while she lost the electoral vote. The latest figures show Hillary Clinton winning 59,638,751 votes and Donald Trump winning 59,434,798 votes, a difference of 203,953 votes. As we all know if we looked at the ballot, voters do not vote for a candidate running for President. We vote for a group of electors in each state, whose numbers are determined by adding the number of members of the House of Representatives in each state plus the two Senators. So if a candidate wins one state by one vote and another candidate wins another state (with the same number of members of Congress) by a million votes, each candidate gets the same number of electoral votes. Five times in our history, in 1824 (Adams over Jackson), 1876 (Hayes over Tilden), 1888 (Harrison over Cleveland), 2000 (Bush over Gore) and now in 2016, the candidate with the higher popular vote lost the election because of the electoral college.

No other democratic country has a similar system where voters choose some intermediate body whose only function is to choose who should lead the country. Why do we have such a procedure? It goes back to our founders' distrust of democracy. Alexander Hamilton in Federalist No 68, explained that the "immediate election [of the President] should be made by men most capable of analyzing the qualities adapted to the station." We cannot trust the decision to the people themselves. Rather, 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."

Why not trust the decision to the people themselves, who, after all, elect their governors and members of the House of Representatives and members of the State legislatures? Hamilton raised the danger of what he called "tumult and disorder" If the people voted directly for President, there is the probability that an election will "convulse the community with . . . extraordinary or violent movements." Rather "this detached and divided situation" outlined in the Constitution will be less likely to produce "heats and ferments." It is true that the people may vote directly for a governor. But those elections are suspect. "Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union."

Of course, we do not leave our elections to a "small number of persons, selected by their fellow-citizens from the general mass" who "possess the information and discernment requisite to such complicated investigations." The electors are simply party hacks who are supposed to automatically vote for the candidate who won the election in the state. (Sometimes they do not do so. One elector in Washington state announced that he would not vote for Hillary Clinton if she won the State, which she did). So if the original reason for the system no longer exists, why have we maintained it?

The reason lies in the evils of our federal system. Under the electoral college structure, smaller states have enormous political leverage. Wyoming has a population of 584,153 and has three electoral votes, which means that each Wyoming elector represents 194,717 voters. California has a population of 38,800,000 and has 55 electoral votes so each elector represents 705,454 voters. So each vote in Wyoming is worth 3.6 times more than each vote in California. Other smaller states such as Rhode Island, Montana, North and South Dakota, Nebraska and Idaho also have exalted political power.

In addition, the so-called swing states get all the attention. Candidates focus on Florida, Pennsylvania and Virginia and North Carolina and make many promises to voters in those states which they are obliged to honor when the election is over. Given the importance of Iowa in the nomination process, every candidate makes promises about ethanol subsidies important to the farmers in that State but not to the rest of the population. The other 40 states get little attention or promises. If the election was based only on popular vote, then the candidates would go where the votes are, California, New York, Texas and Illinois and the swing states would have less importance But there are 29 states with less than ten electoral votes whose influence in a presidential election would be greatly diminished. Why would they agree to a Constitutional amendment that would reduce their power in the political system?

So we maintain the electoral college to defend the interests of individual smaller states, even though the original purpose of the system no longer exists. The system can deny victory to a person who wins the popular vote (as it has five times in our history) or at the least it may make any election seem decisive -- a candidate can win by 100 electoral votes even if the popular vote may be less than 1 percent. That way, the population can believe that the candidate was the proper popular choice.

It is true that a popular vote system would require a search for votes in every state if the election is close, as opposed to a search for votes only in specific states where there may be a close contest. But we already search for votes everywhere in a close governor's contest. We should at the least question the basis for a system which was born out of a distrust of democracy and now serves as a rejection of majority rule.

Leon Friedman is a professor of Constitutional Law at the Maurice A. Deane School of Law at Hofstra University