On Trump, The Electoral College And 2016

11/25/2016 12:54 pm ET Updated Nov 25, 2016

I have mixed feelings about the Electoral College. The political left (historically, philosophically) tends to favor equality and direct democracy, putting more power in the hands of common voters. The right (historically, philosophically) tends to prefer hierarchy and a more republican form of government, putting more power in the hands of elected (or selected) individuals. (The political terms “left” and “right” come from the early French parliament, where the commoners and supporters of the French Revolution sat on the left, and the aristocracy and supporters of the French Monarchy sat on the right.)

As a lefty, I tend to favor direct democracy. But there are times when it is certainly better to have smart, selected individuals making decisions, even when they contradict the will of the people. For example, if the majority favors racial segregation, it’s better to have smart people passing civil rights laws to protect racial minorities against the will of the majority. Or if the majority thinks global warming is a “hoax,” it would be better to have smarter people in charge of energy and environmental policy. So yes, even as a lefty, I sometimes like it when smart individuals are in positions where they can override the will of the majority—when the will of the majority is bad. (This is, I think, where many on the left feel a real tension between their traditional populism and a preference for technocracy.)

The Electoral College is one of those republican systems that the Founders established that cuts both ways. For their time, the Founders acted like revolutionary leftists, putting significantly more power in the hands of the common folk by allowing them to vote for a president. But, of course, the Founders weren’t all-out leftists. They kept the real electoral power in the hands of select individuals—members of the Electoral College—who could overrule the will of the popular majority when necessary. (See Federalist No. 68.) Basically, the idea was to let common voters have their say in voting for president and choosing members of the Electoral College, but if the majority of the people supported someone for president who lacked the necessary qualifications, the Electoral College could override that support and elect someone more suited for the position.

As a lefty, I recognize the value of having smart people in charge, but I tend to dislike the idea that the will of the majority might be ignored. Generally, I favor majority rule. And thankfully, throughout our history, the Electoral College has generally reflected the will of the majority—i.e., the Electoral College has generally elected the candidate who won a majority of the popular vote—so I haven’t had too many complaints about the Electoral College.

But today, at the close of 2016, we find ourselves in an odd situation. A majority of the voters chose Hillary Clinton for president. Clinton’s lead has surpassed 2 million votes, and when all the votes are counted she’ll likely win the popular vote by as much as a 2 percent margin. That’s a reasonably significant popular victory. But—thanks to the geographical distribution of those votes—Donald Trump won the majority in more individual states than Clinton did, thus Trump has won more votes among the electors in the Electoral College.

Or has he? Actually, there’s no constitutional provision or federal law that requires electors in the Electoral College to vote for the candidate who won the majority vote in their state. Indeed, such a requirement would make no sense, given the original purpose of the Electoral College (to override the popular majority, if necessary). Some states have enacted state laws to impose this requirement, to try to ensure that the will of the state’s majority will be reflected in the votes of the state’s electors. But only about half of the states have done this. Several bigger states (like Texas and Pennsylvania)—and several key states (like Iowa, Arizona, and Georgia)—have no such legal requirement. In other words, the electors in half the states are free to exercise their own judgment and to vote their conscience, as the Founders intended.

The Electoral College will vote for president on December 19. Currently the projected vote is 290 for Trump and 232 for Clinton, with Michigan’s electoral votes remaining unallocated because its popular votes are still being counted, and it’s still too close to call (though Trump is the projected winner).

As I said, I have mixed feelings about the Electoral College. On the one hand, I generally prefer majority rule and don’t like the idea that powerful individuals might override the will of the majority. But on the other hand, sometimes the majority is wrong and it’s good to have smart individuals in power who can counteract the will of the majority. If Donald Trump had won the popular vote on November 8, we’d be facing the kind of dilemma that some of our Founders foresaw—a situation where perhaps the Electoral College should step in and override the popular vote, to select someone more qualified for the presidency.

But that’s not what happened. Hillary Clinton has won the popular vote—by a lot. Thus, 2016 presents the rare scenario where the projected vote of the Electoral College will override the popular vote, not in the exercise of good conscience, but by mere default, to elect someone who is less qualified for the presidency.

Or, to put it another way, 2016 presents the rare opportunity for the Electoral College to override its own default position and to instead embrace the popular majority to elect someone who is infinitely more qualified for the job.

As I’ve said, I have mixed feelings about the Electoral College. I mostly tolerate it because I understand the rare need for overriding the majority when the majority wants to do something stupid. This year, however, will present us with an entirely new reason to hate the Electoral College, if it overrides the will of the majority because the geographically-dispersed minority wants to do something stupid.

We need roughly 40 electors to exercise their independent judgment, to embrace the will of the popular majority, and to choose the better, more qualified candidate for the job. In Texas (where electors sign a pledge but are not legally required to vote for the candidate who won the state’s popular vote), some electors have understandably admitted they won’t feel good about voting for Trump. Notably, most of Texas’s electors represent a particular congressional district—and in 11 congressional districts in Texas, the majority of voters voted for Clinton. That means 11 Texas electors could legally vote for Clinton and feel good about it, because they’d be representing not only the will of the national majority but also the will of the local majority in their district, and they’d be exercising good judgment for the good of the nation.

If electors in other key states did the same thing, Clinton would be president. The popular vote in states like Arizona and Pennsylvania was extremely close. Four districts in Arizona and five in Pennsylvania voted for Clinton. With the 11 districts in Texas, that’s 20 districts with electors who could rightfully represent their own districts—and the will of the national majority—by voting for Clinton. And with those 20 electors, we’re halfway there.

It should be noted that some people—mostly Republicans—are currently defending the Electoral College’s default vote as necessary to protect the voice of smaller states that would otherwise be ignored if we elected our president by a purely popular vote. But this argument is nonsense. First, it’s based on nothing but assumption. We’ve never had an election based purely on the popular vote, so we don’t know whether any states would be ignored in that system—and it seems safe to say that a presidential candidate would be stupid to ignore any state with voters, if every vote counted. So the assumption that small states would be ignored is suspect. Second, the argument that says “small states would be ignored without the Electoral College” completely overlooks the fact that numerous states are already ignored because of the Electoral College. Was there any serious campaigning in Oregon, Massachusetts, Kentucky, or Mississippi this year? No. With the Electoral College, voters in “safe” states get ignored all the time, by both sides. Defending the Electoral College as a mechanism for preventing states from being ignored is ridiculous.

The only defense of the Electoral College that makes any sense is the one the Founders offered—as an independent body capable of conscientiously preventing the majority of voters from doing something stupid. But never in history has the Electoral College actually served this function.

Now, in 2016, if the Electoral College wants to demonstrate its value, it can act as an independent body to conscientiously prevent the geographically-dispersed minority from doing something stupid. If it fails to do so—if the Electoral College can’t even protect us from the minority of voters choosing a terrible candidate for president—then what good is it? Why on earth should we keep it?

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