Hillary Clinton just pummeled Donald Trump in the presidential election by more than 1 million votes. Yet on Dec. 19, the electors will vote for Trump as our 45th President. What? Win the popular vote and lose the election? The same thing happened to Al Gore in the election of 2000. He out-polled George W. Bush by 500,000 votes, but Bush became our 43rd President.
How could this be? Is it democratic? Does it reflect the will of the people? What is an “elector”? What happened to majority rule? We find the answers in a shadowy apparition in our Constitution: the Electoral “College,” which is a process, not a place. Like a ghost from centuries gone by, the Electoral College assembles on the Monday after the second Wednesday in December in each of the 50 states after the national election in November. It consists of 538 electors previously chosen mostly by state political parties in accord with their respective state laws. The electors cast their votes for President and Vice President, they transmit their votes to the sitting Vice President in his capacity as President of the Senate. With a majority of the 538 electors, or 270, a candidate wins the contest. If no candidate achieves a majority, the top vote-getters go to a vote in the House of Representatives where each state gets just one vote.
What explains the odd design and workings of this Rube Goldberg contraption? Only 538 electors? What did the Framers of our Constitution have in mind when they invented it? Does it make sense in the 21st Century? As usual, history gives us most of the answers.
When we broke away from the British Empire in 1776, we did not immediately become “one nation indivisible.” We became instead an association of 13 states in what we called “a firm league of friendship.” We created a confederacy in which each state stoutly retained its “sovereignty, freedom and independence.” Historians refer to the original confederacy as a fragile group of proud separate petty republics. Think of it as the States loosely United, not the United States.
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Almost immediately the glaring defects of the new alliance became apparent. Without a single executive in charge, and with no independent judiciary or way to enforce its laws, the national government was grossly inefficient and indeed impotent. States soon squared off against each other to protect their local economic interests with a series of punitive tariffs that made a national economy impossible to achieve. States printed their own money. The confederated national government, which had no power to tax, was so hapless that George Washington called it “a shadow without the substance.” Governing 13 separate fractious sovereigns — many of which embraced slavery — proved impossible.
Thus, at the urging of James Madison and Alexander Hamilton, the states —
all except Rhode Island — sent delegates to Philadelphia in the summer of 1787
with orders to “fix it.” They did not. Instead, they junked the infant Articles of Confederation and emerged with an entirely new prescription for an effective federal government embodied in a Constitution. The association was no longer to be just a loose “league of friendship,” but a “more perfect Union,” a robust democratic republic in which the powers of the national or federal government were carefully identified and limited, and the remaining powers of its founding states explicitly reserved.
The main objective of the Philadelphia delegates on behalf of their respective states was to create a national government that would operate under the rule of law, not the arbitrary dictates of a monarch claiming divine authority from on high. Thus, the national laws of the land would be enacted by a federal legislature made up of chosen state representatives. But how many would each state have? The “big states,” such as Virginia, Massachusetts, and Pennsylvania, argued, of course, that in the name of democracy, the number of a state’s representatives to the national legislature should reflect the size of that state’s population. The “small states,” such as Delaware and South Carolina, however, realized that this method of apportionment would leave them at the numerical mercy of their bigger neighbors. Would the interests of 10 small states be snuffed out in the legislature by the three large ones?
The “Great Compromise” reached was to establish a bicameral Congress made up of a House of Representatives and a Senate. Population would determine representation in the “People’s House,” but each state would have equal representation in the Senate, the “States’ House.” Because the House and the Senate would both have to agree to a law, this ingenious compromise satisfied the small states that they would not be run over by their larger colleagues. The Senate would be their buffer.
The next question was how to administer the national government created by the Constitution and to enforce the laws of the land enacted by the Congress. After much debate, the Convention settled on a single executive officer to be called the President of the United States, a person who would be responsible for running the enforcement machinery of government and act as our Commander in Chief. But how would such an important person be chosen? Because the states were calling the shots, the delegates decided that the states would have a leading role in the selection process. They considered but rejected the idea that the President be chosen either by the people, by state legislatures, (as Senators would be until 1912 with the 17th Amendment), by the governors of the states, or by Congress itself.
Instead, they imported the “Great Compromise” into the selection process. The President would be chosen every four years by a separate group of “electors” chosen by the states, and each state would have the same number of electors as it had representatives and senators in Congress. This ingenious solution attempted to honor and to balance the interests of both big and small states, as it had in the formation of Congress itself. Accordingly, if a state by population had 18 members of the House, the formula would add 2 Senators for a total of 20 electoral votes. The total number of members of the House is currently fixed at 435. With the National Census, the number of representatives allocated to each state is recalibrated every 10 years to reflect changes in population. California now has 55 electors, Idaho just 4, Wyoming and the District of Columbia only 3.
As representatives of their states, our ancestors designed these provisions in a time of no radio, no television, and no form of mass communication, a time when people could not be expected to know much about the candidates. The Framers envisioned an educated informed group of well-qualified electors chosen in each state by the voters who in turn would collectively select our President from an open field of leading and accomplished citizens from across the country. The voters would not chose our President, the electors would.
The Framers considered their process to be a merit selection system. Alexander Hamilton said, “A small number of persons, selected by their fellow citizens from the general mass will be most likely to possess the information and discernment requisite to such complicated investigations. This process affords to a moral certainty, that the office of the President will never fall to the lot of any man who is not endowed with the requisite qualifications.”
Over the years, the system has changed, both by constitutional amendment and state legislation. Now, an elector is normally bound to vote for the winner of the elector’s state (or congressional district), at least on the first ballot. Only Nebraska and Maine differ. They allocate two electoral votes to the statewide popular vote winner, and one vote to the popular vote winner in each of their Congressional Districts. Also, the names of the electors no longer appear on presidential ballots, only the names of their candidates.
Because of the winner-take-all process, a candidate might win a state by only a handful of popular votes, yet that candidate would receive all of its electoral votes — the loser none. In 2000 in Florida, Bush bested Gore by only 537 votes, but Bush got all of Florida’s 29 electoral votes, Gore zero. In fact — and here’s the shocker — a candidate could amass 270 electoral votes just by winning our eleven most popular states, and the candidate could do so with only 27 percent of the total popular vote. This result is unlikely, but it is possible.
Many proposals have surfaced to revise this process, most on the premise that it is undemocratic at its core and should be replaced by one that honors every voter’s choice: i.e., the popular vote. After all, Wyoming has one elector for every 117,556 people, but Texas has one elector for about every 715,499. What happened to one person, one vote? But this ratio does give more clout to small states than they would otherwise have.
Opponents of change argue that a system driven by the total popular vote would unfairly favor the large states over the small, like Idaho, and that the candidates looking for votes could then focus their efforts mainly on California (55), Texas (38), Florida (29), New York (29) Pennsylvania (20), Illinois (20), and Ohio (18), and the states considered to be “up for grabs” to the virtual exclusion of everybody else. Idaho, Montana, North Dakota, South Dakota, Wyoming, and Nebraska together, for example, have only 21 electoral votes. If a candidate considered them to be safely in his or her camp, they could be ignored. Why waste money and effort in a safe state?
Others assert that the right fix is to have all the states choose a proportional allocation of electors similar to Nebraska and Maine. Many call for the state-centric system to be scrapped altogether in favor of a national popular vote. They point out that Hamilton’s no-electronic-media age has long ago disappeared. However, short of a constitutional amendment, major surgery to the system may not be possible. Whatever system we might choose will have its benefits as well as perceived defects.
There it is, the fabled Electoral College, 228 years old and still kicking — but who is it kicking? Once again, we cannot understand the present without knowing our past. Now you know the rest of the story.
Stephen S. Trott, Boise, is a Senior Circuit Judge on the Ninth Circuit Court of Appeals.