The nation has undergone one of the most divisive political campaigns in its history. Notably, for only the fifth time, it appears a President-Elect will have won the Electoral College while losing the popular vote.
This isn’t an event without some precedent. In 1824, John Quincy Adams was elected through the House of Representatives after neither he nor Andrew Jackson had sufficient electoral votes to meet the 131 mark and Jackson had a lead on the popular votes. In 1876, Rutherford B. Hayes won the electoral college while losing the popular vote. Again in 1888, Benjamin Harrison lost the popular vote to Grover Cleveland (by more than 90,000 votes) but managed to win the electoral college (233 to 168).
After 112 years, things seem to be running smoothly. The winner by popular vote also won the electoral college. Clearly, “We the People” had gotten this democracy thing down. Except, we didn’t…. In 2000, the famous (or infamous) outcome of the election of George W. Bush over Al Gore brought the unique nature of our process into light. The fractious nature of our system and the relevance of the “hanging chad” became of utmost concern. The United States Supreme Court, Bush v. Gore (2000) 531 U.S. 98, awarded the presidency to George W. Bush despite Al Gore having a majority of the popular vote by over 500,000 votes. It is worth noting the George W. Bush won the Electoral College by the slimmest of margins, 271 to 266.
Now, in 2016, we again face the likelihood that the winner of the election’s popular vote will not prevail in the Electoral College. This has some, including Sen. Bernie Sanders (D-Vt.), entertainer Lady Gage and filmmaker Michael Moore calling for its reform or abolishment. If you went on Facebook the day after the election, at least on my feed, you saw comment after comment of people wondering how this could happen and that NOW IS THE TIME TO ABOLISH THE ELECTORAL COLLEGE! Why do we have this system in the first place? It should be majority rule, right? We are a democracy after all, right? In fairness, even President-Elect Trump said on “60 Minutes” the Sunday after the election, that he would be fine with a system where you would win with a simple majority of the votes.
As I am writing this I just read on MSN that Sen. Barbara Boxer (D-Calif.), is calling the Electoral College “outdated,” “undemocratic,” “does not reflect modern society” and “needs to change immediately.” As such, she is proposing a bill to amend the Constitution to abolish the Electoral College. A bill that, if it would pass Congress, would still require three-fourths of the states to approve within seven years before becoming effective.
Well, this is where the discussion gets interesting…. Our Founding Fathers were far smarter in adopting this system than they could have ever known. The Founders didn’t know the advancements in communication that would occur. They didn’t know the telephone, television, internet, Facebook, Twitter, or the 24-hour news cycle. Yet, somehow they understood human behavior that lives under all of these advancements that would surely be marvels to them.
Throughout this election, I kept thinking back to The Federalist Papers and in particular, Federalist No. 10 where James Madison argued how factions impact an electoral system. In particular, he argued against “an interested and overbearing majority” and the “mischiefs of faction” in our political system. As a consequence, he saw a republican form of government rather than direct democracy as a tool to combat factions. The sheer size of the nation, and different communities needs and interests, would help in protecting against the tyranny of an unchecked majority.
What many don’t get is that the United States of America is not a democracy. It is a republic premised on a constitution that expresses democratic principles. Our Founders recognized the inherent dangers of a “pure democracy,” that once a party develops 51% of the popular sentiment, it could move to reduce the impact of the remaining 49%. In our republic we select by majority vote (democracy) our representatives who then represent our interests in a legislative capacity. (This reminds me also of Henrick Isben’s, An Enemy of the People, but that is a blog for another day).
The problem rears itself whenever we have a situation when a candidate wins the Electoral College but fails to win the popular vote. If presidential elections were determined under a one person one vote majority, a few states (and predominately the most populated cities within those states) would determine the outcome of the election year after year. As a result, the smaller regions would be ignored and campaigns would largely occur where the greatest majority is possible.
Consequently, the Founders embedded democratic elements within the Electoral College. In Federalist No. 68, Alexander Hamilton explored the idea that this form of representative selection would provide greater stability and be “less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes.” Again, the Founders are demonstrating their fear of destructive factions under a “pure democracy.”
Therefore, as with most things when the nation was still being formed, the Electoral College came about as a compromise to balance a variety of interests. It is not purely democratic, but it still leaves the decision to the will of the people. As such, the Constitution states that, “[e]ach state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the number of senators and representatives to which the state may be entitled in the Congress.”
Yes, states like California and New York have more electoral votes, because based on their population, they are awarded more seats in the House of Representatives. However, a coalition of states may be gained, as was the case this year, to offset this figure.
Hillary Clinton has more votes by .005%. Most of these add on votes are from states where she was the runaway winner. She had HUGE surpluses of votes from California, New York, and Illinois. Yet, much of the country, and in particular the “Rustbelt” states, failed to come out as they did in 2008 and 2012 for President Obama.
Donald Trump made surprise gains in Iowa, Pennsylvania and Wisconsin. He won Ohio, Florida and North Carolina. He will likely take Michigan too, although that state has not been called at this time. The reality is, he will likely win with over 300 electoral votes. He created a campaign that carved out a broader area of support than just a few critical areas. As a result, people from very diverse regions just as Indiana, Pennsylvania and Florida, joined together with their votes to form a larger coalition to propel him to victory under the Electoral College.
The reality is both campaigns knew going in that the Electoral College elects the party’s ticket. The Electoral College requires candidates to build support beyond heavily populated states looking to appeal to broader interests bring the fractions under a larger tent. A candidate must appeal beyond a simple majority or plurality because of the winner take all allocation of each state’s slate of electors. This is how the Founding Fathers decided to control the influence of factions and create a balanced system that protects against pure majority rule.
If you really look at the Electoral College and how it works (and by no means do I consider this post the end of the discussion), you can see the true brilliance in its operation. I will not sit here and say the system may not be without fault, but it has successfully operated under our republic since its founding. It is part of what makes the United States of America the greatest country the world has ever known.
#ZamaryLaw #ElectoralCollege
