You’re not going to hear the argument in the headline from many Hillary Clinton supporters, but University of Kentucky law professor Joshua Douglas is one exception. Douglas argued on Monday at CNN that we should have “celebrate[d] American democracy” after the casting of the Electoral College ballots even if some disagreed with the outcome. The Electoral College worked exactly as designed, and produced the correct result, Douglas emphasized:
Before Election Day, we all agreed, through our Constitution and laws, to conduct the election according to certain procedures. We administered the election under those procedures.
We all knew that to win the presidency, a candidate would need to earn at least 270 Electoral College votes, not the popular vote. Trump did that. The electors cast their ballots consistent with that result. In terms of the process, no one should be upset that this feature of our system worked as it should.
Indeed. Had we put a popular-vote system in place, then the campaign would have been conducted much differently, about which more in a moment. However, Douglas argues, we should get rid of the system even though it works:
We should also abolish the Electoral College. The system is anti-democratic, especially given that the winning candidate received almost 3 million fewer votes than the runner-up. It has outlived its purpose. But it is currently the system we have. And it represents a reasoned judgment that we want the president to enjoy the support of wide geographic areas of our country.
“Anti-democratic” is an allegation that’s getting tossed around a lot over the last few weeks, but it’s hyperbolic at the least, and delegitimizing at worst. Perhaps the Electoral College is “anti-democratic” in a very narrow and literal sense in that it’s a representative mechanism, but it’s not opposed to democracy any more than the House or Senate would be “anti-democratic” either. After all, the electors get chosen on the basis of popular votes — within each state, of course, but still through a democratic process.
One of the sillier arguments offered in opposition to the Electoral College came from the New York Times editorial board in that regard:
Today the college, which allocates electors based on each state’s representation in Congress, tips the scales in favor of smaller states; a Wyoming resident’s vote counts 3.6 times as much as a Californian’s.
Guess where else that’s true? In Congress, and for the same reason. Each state gets at least one House seat regardless of population, and all states get two Senators so that each state gets equal representation in the upper chamber. That’s because we are the United States of America, not the United Individuals of America, and we have a representative government based on the limited sovereignty of the individual states.
That is the basis for both Congress and the Electoral College, which use the same representative models for electing a president that governs all of them. As I write in my column for The Week, it works well — and we need to keep it in place:
Unlike governors, whose state governments have total sovereignty within their borders, the presidency governs over states with their own sovereignty under the Constitution. The role of the presidency is at least somewhat limited to foreign policy and questions that are at least loosely connected to interstate issues and enforcement of other provisions of the Constitution. For that reason, the framers of the Constitution wanted to ensure that the president would have the greatest consensus among the sovereign states themselves, while still including representation based on population.
That is why each state gets the same number of electors as they have seats in the House and the Senate. It reduces the advantage that larger states have, but hardly eliminates it entirely; California has 55 electors while Wyoming has only three, to use the Times‘ comparison. Rather than being an “antiquated system,” as they write, it’s an elegant system that helps balance power between sovereign states with national popular intent, and it forces presidential contenders to appeal to a broader range of populations. …
In this case, the nature of the popular-vote lead is instructive on why smaller states won’t go along with the Times‘ demand to end the Electoral College. Clinton won the overall popular vote by nearly 3 million, but won California by 4.3 million and New York by 1.7 million. Donald Trump won 30 of the 50 states. Relying on the popular vote would have voters in the largest states determine the outcome and lock out the majority of the states, as it would have in 2016.
A president should have the widest support among the states, not just the benefit of running up the score in a couple of them. That is why the founders devised this system, and why it has worked so well for the last two-plus centuries.
For the last word, we should heed this wisdom:
Yet the arguments for the Electoral College are also compelling, and in our view, outweigh the majoritarian case put forward by Mrs. Clinton and others. The nation’s founders sought in various creative ways to create checks and balances, both inside and outside government. The Electoral College was first and foremost a compact among states, large and small, designed to ensure that one state or one region did not dominate the others. As Charles Fried noted in a recent Op-Ed piece, it was and is one of those safeguards of a balanced federalism — much like the allocation of two senators to each state, regardless of size. And by offering the promise that even the smallest states could tip the balance in close elections, the system made it impossible to ignore them. This, in turn, required presidential candidates to build alliances across ideological and geographical lines.
It is true, as the system’s critics suggest, that the rise of mass communications and modern transportation has knit the country together in ways unforeseen by the founders. But that does not mean that we are one homogeneous, undifferentiated mass, at least not yet. There are still definably Midwestern interests, or Northwestern interests, as opposed to, say, Eastern interests. There are still definably rural interests, just as there are urban interests.
The system has survived earlier instances in which the winner of the popular vote was denied the presidency. Wise voters and legislators will want to make sure that it survives this one as well.