Law & the Courts

Why We Have an Electoral College

Following election-night results from Mexico City, November 8, 2016. (Reuters photo: Edgard Garrido)
Trump’s popular-vote loss doesn’t make his election any less legitimate.

I’m in my mid-20s, and my circle of friends has suffered a nervous breakdown this week. Besides Donald Trump and his voters, a lot of sturm and drang have been directed at Russia and WikiLeaks, Jill Stein, protest voters, white women, men in general — and the Electoral College, which will elevate Trump to the White House despite his losing the popular vote. Petitions are being signed, marches are being held. You can’t help but chuckle at how many Democrats have touted their electoral “blue wall” over the last four years.

The point of the Electoral College is simple: to restrict the power of the majority. There’s a tendency to forget that majority rule is only half of a free country — the other half is the protection of the rights of the minority, of the dissenters. This is why our federal government has two legislative houses instead of one. The House of Representatives is filled on the majority-rule principle, with greater power given to larger states; the Senate, on the minority-protection principle, with equal power given to each state no matter its size.

The same balance underlies the Electoral College. Every state gets one electoral vote for each of its congressional representatives. This means that the larger states have more say in electing a president, but no state has no say — each, no matter how sparsely populated, gets at least three votes, one for the minimum congressman-at-large and one for each senator.

Remember: The constitution intends that most laws be made on a scale much smaller than the federal government, where the individual voter has, proportionally, a much greater say, and where local problems can be dealt with without affecting unconcerned strangers. The federal government is the federation of one level of distinct law-making units — the states — and a direct presidential election would mean that problems unique to sparsely populated parts of the country would be irrelevant to the president.

That’s what the Founding Fathers decided, anyway.

There is of course the counter-argument, which is that no man’s vote should be worth more than another’s, that one man’s problems aren’t more important than another’s for being more unusual, and that, anyway, those unusual problems are given an equal hearing in the Senate.

There’s also the argument that small, sparsely populated states aren’t actually given any more consideration under the electoral system — unless they’re swing states. That is, you can argue that the Electoral College has the opposite of the intended effect, ensuring that, no matter its size, every state that isn’t divided roughly in half by the two major parties is taken for granted.

I tend to think that the Electoral College does more good than harm. I’d like to think I would say that even if Hillary Clinton had been the electoral winner. But there are strong, reasonable arguments on both sides, and if the Electoral College were replaced by a direct vote, it would not be the end of the world.

However—one thing about the Electoral College that is inarguable is that it delegitimizes the popular vote as a measurement of the candidates’ popularity. There is no basis for saying that Clinton was ultimately the more popular candidate because more people voted for her. Because the Electoral College means non-swing states are taken for granted, their constituents are more likely to take the outcome for granted, and not bother to vote.

Obviously, this doesn’t mean that more Trump supporters than Clinton supporters didn’t bother voting. It means that there’s no way of knowing one way or the other. Though you could argue that, since Republicans were defending 24 senate seats to the Democrats’ nine, there was more reason for Democrats to vote in likely Republican states than the other way around. With votes still being counted, Clinton leads Trump by just under 300,000 votes. In California, where — unlike in 2012 — there was no Republican senate candidate on the ballot, Trump won 1.8 million fewer votes than Romney. Is that because Trump is 1.8 million votes less popular in California than Romney was? Maybe. But it could also be that Republicans had less reason to vote in a state whose electoral votes were never in doubt.

It is meaningless to say that Hillary won the popular vote; so long as there’s an electoral college, there is no true popular vote. However, if the Republicans who were once worried about the “blue wall” were sincere in their desire to reform the electoral system, this might be their best-ever chance.

Either way, the republic will carry on.

Josh GelernterJosh Gelernter is a former columnist for NRO, and a frequent contributor to The Weekly Standard.


The Latest