After this 2016 election, we have to examine the Electoral College again. As of writing, Trump’s electoral vote count will be 306 to 232 for Hillary. This is contraposed with the popular vote count of about 64.4 million – Hillary to 62.3 million – Trump. In the Electoral College, this gives Trump a 56% victory whereas Hillary won the popular vote 47.9% to 46.4% given third party candidates. Trump won 30 states + Maine 2nd and Hillary won 20 states + DC. Here is the open question that I ask:
Should the Electoral College be abolished, modified, or reformed given the results of the 2000 and 2016 elections, or simply in regard to theoretical consequences and pathologies of the institution?
Before this current election, I would have said “no” because of the need to continue democratic institutions and that the Electoral College was merely a feature of our democracy that was buried beneath the surface, a slightly arcane and abstract process upon the democratic one. Even after 2000, I would have said that the College should continue because this one fluke occurrence should not be sufficient to engage in constitutional amendment and further rule making. Every rule may have an exception but I don’t believe that every exception needs a new rule. I believed that if we were to make democracy anew, we ought not include some features of the Constitution, such as the Electoral College and perhaps the 3/5ths compromise (though that is no longer law given amendments). I would have given the Vice President a real vote in the Senate, and perhaps even made some other modifications. However, given a system that works most of the time mostly well, one should not advocate for its sweeping overhaul or root-and-branch rebuilding. So my arguments previously for the preservation of the Electoral College were not its inherent value or validity in the process, but in the value of the Constitution as a whole. My answer has changed to “yes,” and my arguments that follow will hopefully convince you as well.
Original Intent – The Constitution
For the opinions of the founders, we go to the Federalist Papers. Federalist 9, 10, and 68 concern themselves with the electoral college. Hamilton and Madison advance two arguments for the Electoral College, first that the College will be people of “discernment” who can choose on behalf of their states who they want for president. The second argument is that a Federalist system, where the various states are given votes for offices in the central Federal Government is superior to a purely democratic system in the “petty republics” in ancient Greece and renaissance Italy.
Madison and Hamilton seem to have seen the democratic will of the people to be an encumbrance on the wise governance of the nation. They see the potential of factionalism as destructive to liberty, since factions will bear animosity to each other, and when in power enforce the will of the majority or perhaps tyranny of the majority upon the minority at the time. Oscillating between tyrannies, according to them, must be avoided and the way to do this is to make our nation a “confederation” or a union of states. Thus the democratic processes are averaged by a national republic. This, and the fact that not every state conducted popular votes during the time of the early presidencies means that the President should be decided by a group of electors, representing each state, a proposition which coheres with the notions of Federalism and the realities of voting at the time.
Unfortunately as we have seen, our system has devolved into factionalism regardless, and liberty to one is oppression to the other. In hindsight, the Electoral College perhaps could not have prevented factionalism, and it certainly did not. If anyone thinks that our current Republic has not descended into the perception of tyranny, then ask Republicans about the of violations of the rights of the opposition under Obama and ask the Democrats about not just the promised violations of Trump, but also the great multitude of illegalities and impositions of George W. Bush upon his opposition.
Let me begin the primary argument with an extended quotation from Federalist 68 by Hamilton:
…the appointment of the President will, I presume, agree to
the position that there would always be great probability of having the
place supplied by a man of abilities, at least respectable. Premising
this, I proceed to lay it down as a rule that one man of discernment is
better fitted to analyze and estimate the peculiar qualities adapted to
particular offices than a body of men of equal or perhaps even of superior discernment.
I would say that the sentiment here is more true than false. However, it is explicitly anti-democratic, and perhaps even anti-republican. My grandfather would always say the best form of government is a “benevolent dictatorship” or essentially what the founders may call an “enlightened tyranny.” Here we see that the fewer electors the better perhaps. But then this argument requires that we understand that the purpose of electors is to act as ‘men of discernment,’ and to decide using classical reason based on empirical evidence. The modern Electoral College obviously has devolved into a set of automatic votes based on the popular votes of states, essentially eliminating any notion of discernment or wisdom, empirical evidence or reason. These people are compelled to vote, rather than being given the opportunity to act to prevent a tyranny, which was their essential function.
These most deadly adversaries of republican government might naturally have
been expected to make their approaches from more than one quarter,
but chiefly from the desire in foreign powers to gain an improper
ascendant in our councils. How could they better gratify this than by
raising a creature of their own to the chief magistracy of the Union?
Again I appeal to Hamilton, who implores the electors to ensure that foreign influences would not be able to install a creature of their own to the Presidency. Clearly our Electoral College cannot prevent this either. Clearly the Electoral College no longer fulfills its original philosophical goals. But this doesn’t yet mean that it doesn’t serve a current function, or didn’t function well in the past.
The Early Workings of the College
The Electoral College in the first election in 1788 went rather well. North Carolina had not yet ratified, New York was deadlocked, and Vermont was acting as a quasi-state and yet the election went rather smoothly, with 81 electoral votes, of which 69 went to George Washington. Many states didn’t have a popular vote, and when they did often they were electing the electors rather than the President.
However, it is helpful at this point to realize that this is the original disposition of electors (though not all of them took part in 1788-89, so I used 1792 figures as well):
|State||Population||Electoral Votes||Ratio of Votes per Elector|
Even here, there is not a fully equal distribution, with Rhode Island and Georgia having “triple representation” to Virginia, the most populated state at the time.
The Election of 1824
The first major defect in the Electoral College occurred in 1824, where John Quincy Adams was elected over Andrew Jackson. Here, Jackson received 99 electoral votes to 84 for Adams and won the popular vote 151,271 (41%) to Adams 113,122 (30.9%). However, neither person secured the majority of the electoral votes, 131 being needed, so in a political compromise John Quincy Adams was selected over Jackson. Yet when put to the House of Representatives to vote by state 13 voted for Adams and only 7 for Jackson. Henry Clay gave his support to Adams who then appointed Clay Secretary of State, in what Jackson considered to be the “corrupt bargain.”
Jackson as president had many flaws, but the Electoral College voted for him as a plurality, but their rules say that a majority is required, or their vote is not binding. Passing to the House of Representatives instead of re-voting or having some other system multiplies the error by having the political factions of the time select based on internal machinations rather than the votes of the people or the college. Arguably John Q. Adams was the man of more sapience and probity, but he was not the will of the people, nor of the College, so the will of democracy is that Jackson should win.
One could argue on the other hand that this was not a fundamental flaw in the College since they didn’t decide the eventual outcome. However it was the College which by its failure to reach a majority caused the candidate who received fewer of both types of votes to win. The people resolved this in 1828 with the election of Jackson, showing that he was the will of the people through the College.
The Election of 1876
The first major defect in the College itself occurred in 1876 with the election of Rutherford Hayes, who as it turned out lost the popular vote by a substantial amount, 4,288,546 for Samuel Tilden, a Democrat from New York, against Hayes’ 4,034,311 votes. At this point there were 38 states of which Hayes carried 21, though many were rural western states like Kansas, California, and Nebraska with relatively limited populations. Interestingly, this election also featured the highest voter turnout of any presidential election in US history, comprising about 82% of eligible voters. Tilden unlike Jackson’s spoils system had sent Boss Tweed to jail and put to an end the Tammany Hall corruption.
In this election, Democrats marked ballots misleadingly to confuse illiterate voters in the south. In all, twenty electoral votes from Florida, Louisiana, South Carolina, and Oregon were contested.
In Florida, Hayes was ahead by 43 votes before a recount which left Tilden ahead by 94. When Republicans disqualified about a thousand ballots, they were able to declare Hayes the winner. In a popular vote system, these thousand votes wouldn’t have made a difference given the large margin for Tilden nation-wide. Similar ballot disqualifications occurred in South Carolina by Republicans, giving the election to Hayes.
In Louisiana, the Republican disqualification campaign was the worst, as they disqualified over 13,000 Tilden votes and 15,000 votes overall, which flipped the result of the election there, as the margin was only about 6,000 votes. Again in a popular vote system, this problem wouldn’t have affected the results of the overall election.
Because of all of the problems, an Electoral Commission was formed to resolve these electoral votes. The electoral commission itself is of questionable constitutionality, and again given over to political machinations which countermanded the will of the people. Here the electoral college, supposedly an group of discerning people coming to individual conclusions that are unbiased by factional politics again gives way to an internal factional political process driven by those people who cannot be electors by constitutional law.
Beyond the constitutional disaster and electoral quandaries, the negotiation that was done allowed Hayes to become president in exchange for the end of reconstruction, which has had its effect, giving our nation nearly 90 years of Jim Crow, segregation, and brutality. Perhaps a longer Federal involvement would have only embittered the southern Democrats and worsened the political and racial backlash, but after the removal of Federal troops, black elected members of the Senate and House declined to zero.
The Election of 2000
We are brought now to our penultimate case of the 2000 election. Back in the familiar territory of modern history, we recall that Gore won the popular vote by about 500,000 votes; 50,999,897 for Gore versus 50,456,002 for Bush. Conversely, the Electoral College voted for Bush 271 to 266.
Florida, being the deciding factor this time, 537 votes between the two candidates out of a total of 5,960,082 from the state, meaning that 0.009% of voters or about one in 10,000 Florida voters decided the results of the election for the whole nation. Worse yet, this accounts for approximately 0.00051% of the nation’s voters in 2000.
In the end the US Supreme Court engaged in a partisan and political act of sabotage by over-ruling the recounts which should have been allowed to continue.
Justice Scalia writes:
The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.
If we believe political scientists, legitimacy is measured by the will of the people, as assessed through a poll or an election. If that is the case, Gore should have won the election to produce a “legitimate” result, or a result supported by the majority of people. But worst of all, Scalia seems to openly claim here that as long as someone claims to have won an election, they have a right to win, even if cast votes that would be counted would actually reverse the result. Scalia continues:
Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.
Of course this is precisely what the Rehnquist Court did. Allowing the recount would have been permitting the actual results of the vote to come in before one rules on the legality.
Justice Scalia voted on equal protection grounds to deny voters the chance for their votes to be counted, given over 70,000 votes which were rejected from voting machines but which demonstrated “the intent of the voter.” The rejection of a vote is itself a violation of equal protection, though the voters would never know if their ballot was one that the machines later rejected. Even with Florida’s insane butterfly ballots and their terrible systems of reporting, counting, and recounting ballots, at least their law made clear that if the intent of the voter was discernible, then it is a legal vote. The US Supreme Court therefore stepped in and in an act of ultimate partisan politics in a court supposedly beyond it, voted to put George W. Bush into the White House, against the will of the majority of Americans, and potentially even against the majority of the electors if the votes had been properly recounted.
Justice John Paul Stevens writes:
Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
I respectfully dissent.
Justice Stevens dissent is perhaps the most quoted but Justice Ginsburg, Justice Breyer, and Justice Souter all wrote excellent and correct analyses of the issue, showing that perhaps in contradiction to Hamilton, a small group of people may not make a better decision than a larger group, even if that smaller group is arguably more erudite than the people at large.
The consequences of the Bush administration are well known. His incompetence and being so easily manipulable in my belief led him into Iraq under the influence of Cheney, Rumsfeld, Paul Wolfowitz, and the other “neo-cons” who manipulated intelligence, deceived and lied to the American people. His refusal to regulate bank malfeasance allowed the 2008 financial crash. His failure to ensure FEMA was operational under competent leadership ended in the deaths of a thousand Americans. When his intelligence agencies published a memo “Bin Laden Determined to Strike in US” nothing was done, and he had no interest in terrorism or Al Qaeda until September 11th, 2001. And to complement this failure, Bush instituted the beginnings of the NSA programs which continue to deprive citizens of their 4th amendment rights. Having 9-11 as an excuse, and the fear of the people, he sacrificed the liberty of the people protected by the constitution. This is the worst of his offenses because he has started us on a path which leads to authoritarianism, oppression, and the denial of fourth and first amendments to the people, which means the end of political freedom in the United States. President Obama, for all of his good aspects, has entirely failed to push back against the surveillance state, which now will be under control of Donald Trump. It is fitting that someone who was first elected by totally undemocratic means would put us on the path to end democracy. The Electoral College is the institution which has provided this great service to the nation.
The Election of 2016
Now to the present day, with the context of history, let us examine what has happened. Here as I said at the top of the article, Hillary Clinton currently has about 64.4 million votes to 62.3 million for Donald Trump, whereas in the electoral college, Donald Trump has 306 electoral votes to Hillary’s 232.
I want to examine the failures of Hillary Clinton separately, so here I will merely say that this was her election to win. She had the support of celebrities, politicians, the Democratic and parts of even the Republican parties, and most importantly she received the majority of votes. So how did she lose the presidency? From a political standpoint, she lost for innumerably many reasons, where she had the opportunity to earn a decisive advantage and instead squandered it. I want to examine all of those reasons systematically but apart from my electoral arguments. Here I merely want to examine the numerical results, and understand how the Electoral College’s primary defect contributed to the result here.
|States||Electoral Votes||Margin||Clinton Votes||Clinton Pct||Trump Votes||Trump Pct|
A simple glance at this current chart, drawn from the numbers as posted on Wikipedia, Hillary’s loss different than Gore. With Al Gore, he nearly won the popular vote in the crucial state of Florida. Here, Hillary lost by about 96,000 votes in the top three states. Had she been able to win those votes in those states, she would have had 278 electoral votes and would be President Elect.
Here, the true modern function of the Electoral College is made plain. One cannot win a majority of votes nationally, but must win particular states in the popular vote or lose the election. Even those 96,000 votes are 0.072% of the vote total, whereas she will win the popular vote by at least 1.5%.
The problem here is not that there was backroom dealing like in 1824 or open corruption like 1876, but more like 2000, we are finding that there are voting conditions where the national popular vote and electoral college vote do not agree, 40% (or 2/5ths) of the time. We must therefore ask ourselves if this is the result that we would favor in a democratic process, and thus we come to the question I posed at the start.
I claim that this result hints that the Electoral College is in fact broken. We go back to the founding and look at the stated purpose of the college and find that it is a failsafe on democracy, to ensure that when democracy fails to produce a reasonable result in the popular vote in the states, they can use reasoned judgement to choose the right person. If my arguments about the threat that Donald Trump poses to the Constitution are true, the purpose of the electors is to vote against him. If they are bound by state election law, and state results, then they can cite the supremacy clause of the constitution which allows them the choice for whom to vote, or simply disobey their state laws for the good of the country.
For an elector in the style of 1788, the only choice in this election cycle would be Hillary Clinton. This is not because Hillary is an intrinsically good candidate, nor that she deserves to be the first woman president, nor that she has proved herself to be correct in her judgement for instance on Iraq, gay marriage, TPP, corporate regulation and bank reform she has proven herself to have a rather low success rate when it comes to choosing the proper path forward. Her entanglements at the Clinton Foundation where they have received gifts and donations from middle eastern tyrants, presumably to curry favor with her so that they could trade that influence when she became President.
However, I believe Trump represents an entirely different class of threat. Whereas Hillary is the essential completion of the years of institutional corruption, Trump represents the people with torches and pitchforks at the door, who intend to burn the manor down. The Electoral College is the fail-safe to prevent the total annihilation of our last functioning democratic institutions. They could pick the popular vote winner and give us a safer path, but at this point the Electoral College cannot even do that. It has created this problem by weighting states and giving more power to smaller states so that on average each voter there casts approximately 3.5 votes if weighted equally to larger states. But it could theoretically solve the problem if it still performed its intended function. It does not, thus it ought to be removed.
Against Faithless Electors
Now that I have advocated for what I believe is the philosophically consistent position, let me advocate for the pragmatic position.
Though electors ought to vote for Hillary, giving her the presidency and preventing Donald Trump from taking office, the consequences of this are just as dire as the founding fathers predicted. If the Electoral College were to exercise this level of discretion in the modern day, a power which it perhaps may have legally but has lost practically, there would be insurrection and chaos. Trump would probably not concede to the fact that he will not be President and those who chose him may take to the streets to enforce their will to put Trump in office.
I don’t believe that this fear of insurrection is terribly far fetched if Trump were denied office now. The media and the public opinion is that Trump is the President-Elect, and if that were to change based on some arcane functioning of a dormant while still malfunctioning body, there would be blood in the streets, catastrophe, and probably the end of the Republic. Therefore I cannot advocate for this end, even though I believe it is within the rights of the electors,though it is true I would feel much more comfortable redressing Hillary Clinton with grievances than Donald Trump. Hillary Clinton, if elected, also must be opposed in many ways, so it is not worth it to risk so foolishly the end of democracy to put her into office.
The Democratic Remedy
Without a constitutional amendment which is almost impossible in the foreseeable future, we will have to rely on the National Popular Vote Interstate Compact. If for good reasons or bad, we could convince state governments in some of the swing states to sign, we could reach the 270 electoral votes required, when the compact would take legal effect. Then the winner of the popular vote would be made the winner of the electoral college by all states in the compact, even if they voted for the other candidate. This would probably lead to a constitutional amendment abolishing the college, given the twisted and deformed nature of the college at that point.
To those people who make the argument that it is simple political expediency in order to get my preferred candidate, understand that my preferred candidate was Bernie Sanders. Hillary Clinton, if elected, would have had to have been opposed at almost every turn, or at least prodded constantly by an activist base in order to get her to overcome her own nature, biases, and interests. I believed that perhaps a Hillary Clinton presidency would offer an opportunity to reform the country without resorting to more extreme measures that would be needed in the case of a Trump presidency.
However, we are going to get a Trump presidency. If Trump acts as he has promised, he will trigger a true constitutional crisis. He could be the Gaius Marius or Lucius Cornelius Sulla who became dictator before Julius Caesar, though to compare The Art of the Deal to De Bello Gallico or Comentarii de Bello Civili would make any Classical historian laugh in derision.
Therefore our remedy is to work to elect non-Republicans in state legislatures and in the House. We must tackle the gerrymandering in congress to ensure that non-Republicans have a chance to win after redistricting in 2020. Without seriously addressing these systematic failures, we cannot be rid of the Electoral College, and we run the risk of future recurrences of this kind of defect.