The two most recent Republican presidents attained the office receiving fewer votes than their Democratic rival. While neither Democrat won a majority of the popular vote, thanks to the presence of third-party candidates, the disconnect between the popular and the Electoral College votes constitutes a political problem with constitutional implications. The United States is a republic, not a democracy, and it has never anchored the legitimacy of its regime on a principle of one person, one vote. That is a fact, however much those on the left wish it were otherwise.
Nonetheless, in a broadly democratic culture, especially one that bases most of its political decisions on majoritarianism, a loss by the person with the most votes is bound to raise hackles. If too many Americans conclude that the constitutional system is rigged against their interests, then enthusiasm will build for imprudent constitutional solutions to political problems.
It need not be so. An old litigator’s joke goes as follows. If you have the facts, argue the facts; if you have the law, argue the law; if you don’t have the facts and you don’t have the law, then bang on the table and shout. As defenders of the status quo, we conservatives have the law on our side, but arguing a fait accompli carries limited weight against impassioned calls for reform. We also have the facts on our side but have preferred not to argue them, instead leaving the opposition to thunder and hammer away at the proverbial table. Simply possessing the better argument does not obviate the need to give it voice. Let us turn to the facts.
Hillary Clinton won 2,868,686 more votes than Donald Trump in 2016, taking 48.2 percent of the popular vote to Trump’s 46.1 percent. Donald Trump won 304 electoral votes to Clinton’s 227, claiming 56.5 percent to Clinton’s 42.2 percent of the Electoral College. Clinton lost five of her electors, who switched their vote from her despite being pledged to her (two electors defected from Trump in this way). But even if she’d retained the five, she still would have won only 43.1 percent of the Electoral College vote.
Three million is a lot of votes. Most on the left contend that a morally indefensible skewing of the system is at work thanks to the disproportionate representation enjoyed by small states. Each state receives one electoral vote for each representative and senator it has serving in Congress. Representatives are allocated in proportion to states’ population, but senators of course are not, and this gives voters in smaller states greater proportional representation. For instance, in 2016, one of California’s 55 Electoral College votes accounted for 257,847 voters and 718,909 residents. Wyoming, by contrast, assigned one electoral vote for every 85,283 voters and 193,105 residents. Removing the senatorial allotment of two votes to each state and basing the Electoral College on the number of House districts in each state would help balance out these numbers — 746,038 Californians would have the same pull as 718,909 Wyomingites.
Because Wyoming, Montana, the Dakotas, and Alaska are all red states, the thinking goes, Republicans benefit more from the overrepresentation of small states than Democrats do. Yet reliably blue Vermont and Delaware also receive three electoral votes. The District of Columbia gets three votes, despite having had only 478,093 registered voters and fewer than 700,000 residents on Election Day. Of the states with four or five Electoral College votes, Republicans have Idaho, Nebraska, and West Virginia; but Democrats have Rhode Island, Hawaii, and Maine. The simple fact is that the “small-state advantage” enjoyed by Republican candidates is much smaller than Democrats often claim. It is real, yes, but small.
Moreover, small states are not necessarily red or blue. New Hampshire is competitive. Maine and Nebraska have provisions for splitting their electoral votes, and both states have done so since 2008. Democrats could compete in even more small states if they touted policies that departed from the culture-war-meets-environmentalist utopianism put forward by Hillary Clinton. Her agenda paid dividends in socially liberal coastal states: Clinton nearly doubled Trump’s share in California, besting him there by a stonking 4,269,978 votes.
Indeed, much liberal opposition to the Electoral College comes down to California. Of the ten most populous states, six are arguably competitive in presidential elections. Of the remaining uncompetitive four (California, New York, Texas, and Illinois), Texas has 38 votes in the Electoral College compared with 49 for New York and Illinois combined. California, at 55 electoral votes, is by far the state with the most electoral sway. But if it’s the underrepresentation of California that’s driving the objection to the Electoral College, one wonders why California ought to carry so much weight compared with the rest of the country. Are we really to redraw our presidential selection process for the benefit of one-tenth of the population?
Beyond the unbalanced allocation of electoral votes, liberals complaining about Clinton’s loss despite her popular-vote advantage need to acknowledge that Clinton and Trump pursued the presidency in fundamentally different ways. Campaigns play by the rules set out beforehand, and both campaigns knew that 270 electoral votes meant victory. Except for excessive television spending in Virginia, the Trump campaign rather ruthlessly pursued those votes. Clinton did not. Instead, the Clinton campaign chose to expend resources in noncompetitive states, including nominal television buys in California and Arizona. Clinton also continued to host major fundraising events late in the campaign, meaning that she averaged only one public event per day in the last ten weeks of the campaign. Trump averaged nearly twice that rate.
Furthermore, according to a report by CNBC the day before the election, Clinton’s campaign outspent Trump’s on rent and payroll in the noncompetitive states of Alaska, California, Connecticut, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Maryland, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, North Dakota, Oregon, South Carolina, South Dakota, Utah, Vermont, West Virginia, and Wyoming.
When we set aside New York, where both campaigns had their national headquarters, that level of red-state and blue-state staffing indicates that the Clinton campaign chose to take on responsibilities beyond solely getting to 270 electoral votes. Hubris probably played a role in that decision. And given Clinton’s lackluster political skills and charmless demeanor, a popular-vote mandate would probably have been the Democrats’ only means of tempering hostility from congressional Republicans.
Other, more pressing political considerations probably factored in as well. The Obama presidency destroyed the Democratic party as a functioning organization in most states. Team Clinton would have known that just winning the presidency, without robust state parties to compete for congressional seats, would mean severely attenuated political gains. Using a presidential campaign to engage in party-building is more than defensible — it is often wise. Moreover, the Democrats had no other choice. Thanks to the administrative ineptitude of Debbie Wasserman Schultz, the Clinton campaign had to bail out the Democratic National Committee during the 2016 primaries. In return, Team Clinton kept the DNC on a starvation diet and instead took over the party-building functions that the national party committee normally would have handled. Whereas the Trump campaign could count on the RNC to compete down-ballot nationwide, allowing it to focus on swing states, the DNC needed the Clinton campaign to fulfill the broad-spectrum functions of a national party committee.
These considerations cast Clinton’s popular-vote majority in a different light, as a by-product of a politically grounded campaign strategy rather than a constitutional distortion. Sure, redirecting resources away from swing states seems foolish in retrospect. But good reasons existed to do so, especially given the decrepitude of the Democratic party at the end of Obama’s second term. Regardless, it was the Clinton campaign’s decision to make, and they made it.
Looking beyond 2016, we can see two broader points that deserve airing in defense of the Electoral College. First and foremost, there exists no pragmatic means of achieving a national popular vote, and even if such a means existed, the results would be infelicitous. National elections would mean national recounts, which might be necessary more often than not, given our current polarization. The experience of the 2000 recount ought to militate against a national popular vote on this reason alone. More concerning, campaigns seeking popular majorities would focus more on mobilizing their base than on persuading moderates. Republican candidates would run to deep-red swathes of the country while Democratic candidates would court the most radical elements in California and New York. Those already frustrated by polarization would do well to consider that activating the most extreme partisans nationwide, rather than persuading likely voters in swing states, would only widen the Left–Right divide.
But even accepting the Left’s critique of disproportionate representation, we can make an affirmative case for the selection of the president predominantly by state. The Dutch-American political scientist Arend Lijphart spent much of his career studying how majoritarian democracies differed from electoral systems designed to promote consensus among diverse and fundamentally pluralistic populations. Lijphart became a sort of scholar-advocate for the notion of consensus-building democracies, which operated under a what he called “consociationalism,” a principle of inclusion for diverse groups. Consociational democracies run the gamut from the Netherlands to Lebanon to Northern Ireland, so one cannot conclude that they uniformly assure stability. But they are, according to Lijphart, more stable and less likely to devolve into civil violence.
The Electoral College is a powerful force for mild consociationalism in American life. Yes, many states are effectively taken off the table in presidential campaigns. Massachusetts and Alabama will probably not be in play any time soon, even though both states have a governor or senator of the minority party. Those states are relegated to the periphery in large part because the interests of their majority broadly align with the party that the state will all but certainly support. Yet in the roughly dozen or so swing states, distributed across the country, both presidential nominees must make a case not simply for their individual candidacies but also for their respective parties. This requires a high degree of accommodation on both parts: To pander in New England is to lose the South; flattering the provincial concerns of the Midwest means risking one’s chances in the Southwest.
Politicians have often, and happily, tailored their campaigns to the provincial concerns that the Electoral College amplifies. Yet we miss the larger point if we focus on the ideological imprecision this often begets. The Electoral College system survives because it can reliably command the loyalties of most Americans. It does this in no small part because it draws the nominees of the respective parties away from their bases and toward contested populations. It has been, in other words, an agent of order and stability even if, or rather because, it has encouraged a degree of expedient heterodoxy. Such fudging on matters of policy, which can look like contradiction or even hypocrisy, should not be thrown off hastily.
Conservatives can admire the persistence and order-reinforcing qualities of the Electoral College. Liberals willing to assess the institution honestly will acknowledge that its consociational qualities protect and even encourage diversity in choosing a chief executive. Is the Electoral College perfect? Far from it. Do its opponents have valid arguments? Of course, though their potency is greatly exaggerated. Does the Electoral College warrant acclaim? Yes, though not reflexively or simplistically. Two cheers for the Electoral College should do.