Saturday, November 12, 2016

The Electoral College System Required Trump to Win the Popular Vote—30 Times

One of the areas in which the Founding Fathers most showed their brilliance is in the area of structuring government so as to distribute political power—the power of the gun—in a way that minimizes the chance of tyranny. It’s called the balance of power, or checks and balances. What kind of tyranny? Not just monarchy, but all kinds of tyranny, including the tyranny of the majority.

In this regard, MarketWatch ran a good Election Day piece titled The Electoral College is anti-democratic—and that's a good thing. Perhaps in anticipation of a very close presidential election, Jason Brennan explains:

The Electoral College is an anti-democratic institution. From the perspective of the writers of the U.S. Constitution, that’s a feature, not a bug. The entire point of the Electoral College is to serve as a check on democratic voting. The founders didn't trust the people to choose the most powerful person in the country (and now the world).

According to biographer Greg Weiner, James Madison — Constitutional designer, Federalist Papers author, and former president — worried that democratic polities were prone to fits of passion. They might be overcome by prejudice and swayed by populist demagogues. Madison wanted a series of checks and balances and a multistep process for creating laws and choosing leaders, not just to force factions to compromise, but to slow down the decision-making process with the hope that cool heads will prevail.

The founders generally saw what we now call democracy (they used “democracy” as a derogatory term) as an instrument, not an end in itself. In their view, the purpose of government was to protect rights and promote justice. They denied that what counts as our rights or what counts as justice was decided by majority fiat. Rather, they thought republican democracy with checks on majority rule would do a better job realizing procedure-independent truth about what justice requires. They denied that the majority had any inherent right to rule or impose its will on the minority.

“Republican Democracy” is different from pure Democracy, or what I call Fundamentalist Democracy, in that in the latter the vote is the most fundamental and only unalienable right. Under Fundamentalist Democracy, all other rights are subject to majority rule, as represented by the government. In the former, the most fundamental rights are the rights to life, liberty, property, and the pursuit of happiness. These are inalienable rights. The right to vote is inalienable, but derivative; i.e., secondary to the fundamental rights to live without coercive interference from others, including elected representatives. Unlike the fundamental rights, which are absolute within the context that everyone else possesses the same rights that you cannot violate, the right to vote is not absolute: No citizen should be denied their right to vote. But the process of voting is subordinate to the First Principle that our fundamental rights precede government, which job is to protect those rights. We can put it this way: Under Constitutional Republican democracy, the ballot box is an extension of our fundamental rights. Under Fundamentalist Democracy, the ballot box is a tool of aggression and oppression; a license to run roughshod over the minority. People who respect their fellow man are willing to live-and-let-live, so they choose Republican Democracy. Democracy Fundamentalists crave the opportunity to dictate over other people’s lives and choices, with the vote as their weapon. Fortunately,  America is not a Democracy: It is a Constitutional Republic with a limited role for democracy (a distinction that, unfortunately, is eroding).

The Electoral College has never overridden the voters in America. Fortunately, it never had to. But history has shown that it can be and has been necessary. I have argued that it is entirely within the realm of possibility that the Electoral College process may someday prevent the rise to power of an American Hitler or Chavez, two dictators who rose to power through Democracy. Brennan apparently concurs, as he concludes:

I take no stance on whether Donald Trump is beyond the pale here. He’s not the first candidate without policy experience or to use inflammatory rhetoric and lob classless insults as his opponents. Nevertheless, we should be glad the Electoral College is in place. Given how much power the U.S. president has, it’s comforting to know that if voters make a truly horrific choice come November, our elected representatives have the power to rescue us from their mistakes. [sic]

I bring the issue of the Electoral College up because it looks like Trump won the presidency without winning the national popular vote. Predictably, some on the Left are spouting the same nonsense that was spouted in 2000 after George W. Bush pulled off a similar victory—“Trump is not the legitimate president.” “We need to get rid of the Electoral College. It’s undemocratic.” “Trump’s presidency doesn’t reflect ‘the will of the people’,” and calling for abolishment of the electoral College.

It’s infuriating and yet amusing that once again we have to have this conversation. But, I guess we do.

First, let’s take a look at the vote totals. Trump won the Electoral College 306 to Clinton’s 232. He lost the national popular vote. Last time I checked (11/15/16), Clinton was ahead by about 800,000 votes out of about 121 million cast; a margin of 0.6% according to CNN.

But that’s far from the whole story.

We’ve already seen that the Founders viewed the Electoral College as a necessary bulwark against tyranny. That should be enough. But the Electoral College has other advantages, as well.

The Electoral College does not sidestep “the will of the people,” to use that ridiculous catchphrase (what “will” of which “people?”). The popular vote does count. But there is nothing sacred about a national popular vote—not in a constitutional republic based on rule of law and limited, individual rights-protecting government. In fact, the national popular vote is irrelevant, given the wide diversity among the people in the states. There are other ways to measure the popular vote—like, on the state level. That’s what the Electoral College system measures. Every elector is backed by popular vote at the state level. In other words, Trump did win the popular vote—30 times; that is, in 30 states totalling 306 electoral votes. Clinton won 21 times (including the District of Columbia). In fact, if you take out California, by far the biggest state, Trump won the national popular vote by 2.1 million (at last count). California is a concentrated liberal/progressive bastion that went for Clinton by a 3.4 million vote margin. That’s a lopsided 62-33%, way out of touch with the national electoral mainstream but enough to swing the national popular vote totals to Clinton by 1.3 million votes.    

Some might say, “But the president serves the entire nation, so only the national popular vote should count.” But this ignores the fact that the states, through their elected legislatures, have the constitutional responsibility to pick the president, through the Electors they appoint—and the legislators themselves are chosen by popular vote. This is a key feature of checks and balances. (All states allow their citizens to pick the electors by popular vote. But they don’t have to, according to Article II of the constitution, which states simply that “Each State shall appoint, in such Manner as the Legislature there of may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress” [my emphasis]). This is required to balance the power between the state and federal governments, a means of keeping the federal government accountable to the states, which are closer to and thus more accountable to the governed.

There is also a fairness aspect to this. America is a big and diverse nation of 50 states. What concerns citizens in one state may be different from other states. States vary widely culturally and economically. Is it fair that the economic, cultural, and issue concerns of just one big state should decide what “the will of the people” is, and trample all of the rest? I say no, it is not; not in a nation as big and diverse as America. Trump and Clinton both went in and played by the same rules. Trump won the election fair and square. (“The will of the people” is in fact a myth. It rests on the collectivist premise that “the people” is an entity with a will of its own apart from the individuals that comprise it. That’s mysticism, not reality. In reality, America is a nation of 325 million individual wills, about a third of whom cast ballots.)

Thanks to the Electoral College setup, presidential candidates must travel to many states to win the hearts and minds of popular voter majorities in those states, which means the candidates must learn about what issues concern people around the country. Isn’t that what we want from a president—someone who knows something about people she is to govern outside of concentrated bastions of support in a few big states? The reason why we have the healthy phenomenon of “battleground states” is because of the Electoral College. Neither Clinton nor Trump spent much if any time campaigning in states they knew they had a lock on. Without the Electoral College, both would have spent most of their time in their own narrow strongholds trying to pump up their national popular vote totals, ignoring the rest of the country. Instead, both had to diversify their appeal among a lot more people in a broader number of states.

It’s interesting that, for all of the Left’s concern for “diversity,” so many of them care so little about meaningful diversity. We always hear about “polarization.” The College, by encouraging presidential candidates to recognize the diversity across the states, tends to reduce that polarization. That’s a good thing—and we have the Electoral College to thank for that.

Finally, I have to say a word about the hypocrisy of the whiny sore losers who are now complaining about the Electoral College. Throughout the campaign, most pollsters were consistently predicting a close popular vote but a large win for Hillary in the Electoral College. We constantly heard that Trump had a difficult “path to victory” based on the electoral map, even at points where he pulled even or slightly ahead in the tracking polls. Where were these whiney Hillary supporters when it looked like the Electoral College would work in her favor? Not a peep. And does anybody really believe that, had Trump won the national popular vote but lost the election, these same folks would be screaming their heads off about how “unfair” it all is? Don’t make me laugh.

Keep the Electoral College. It is, in my view, a valuable and unifying—and uniquely American—institution.

Related Reading:

12 Reasons Trump Won—Ari Armstrong


Burr Deming said...

Actually, James Madison's "fits of passion" argument, distrusting majorities to preserve liberty, was directed at whether the Bill of Rights should be part of the Constitution. Madison reluctantly went along with the Electoral College after arguing that the only fair and just method of choosing a President was though direct election by voters.

The "tyranny of the majority" argument against popular vote for President was raised only once during the Convention, by delegate Elbridge Gerry of Massachusetts. His argument, along with his proposal of a national legislature to choose a President, was hooted down, not to be considered again at the convention.

What you and I were taught in school came from late 19th century scholarship by Professor William Dunning of Columbia University and his working group of graduate students. It then found its way into 20th Century textbooks. Horrible truth is often the first casualty of wishful thinking. And Dunning's group, patriots as they were, very much wanted a nation still shaken by the Civil War to experience brotherhood and peace.

In actuality, the Electoral College was created in order to preserve slavery, weighted as it was by counting 3/5 of slaves as if they were voters.

More recent research has bypassed the Dunning School of history and gone directly to contemporary accounts by actual participants at the convention. Paul Finkelman is just one of many historians who have gone back to the original documents.

Those original accounts are how we know of Madison's reason for his change of position. He explained at the time that preserving slavery through the Electoral College was the only way to get the South to support the new form of government.

Michael A. LaFerrara said...

As I see it, the 3/5 clause actually reduced the political power of the slave states. Since the number of electors is determined in part by the number of Representatives, which in turn is determined by total population (not the number of voters), counting the slaves as 3/5 reduced the population count and thus the number of electors in slave states. Yes, it was a compromise, but not one that favored the slave states. If the slave states could have had their way, they’d surely have counted their slaves as whole persons equal to “free Persons.”

Anonymous said...

The arguments made here can be applied to make precisely the opposite case. As a result of the mechanism of the Electoral College, by allowing North Dakota and other small population states the equivalent of 2.87 votes for every vote from California, the serious risk exists that the majority is being subjected to the "tyranny of the minority". The Electoral College was formed primarily as a political incentive for some of the more reluctant former colonies in the formative years of the Union to engage in the process of forming a new country. These incentives no longer are necessary. If anything the opposite is a more serious and credible risk, namely, that the larger states threaten to break away from the Union as a result of being subjected to unpalatable policy imposed by geographically privileged voters. California, which is the world's 7th largest economy, home to the world's most valuable companies and pays more in federal taxes than it receives from the federal government, could credibly exist independently of the rest of the US. That is not true of North Dakota or other such small states which are intimately dependent on the federal government for infrastructure, access to international markets, security and among many other benefits. Furthermore, by allowing geographical privilege under the Electoral College, the most fundamental principle of democracy is jeopardized, namely, that the leadership has a mandate from a majority of citizens to lead, which history has proven to be the only enduring and morally acceptable basis for equitably selecting a leader. When the Electoral College overrides the majority, that mandate no longer exists.

Michael A. LaFerrara said...


A valid point. However, I believe that fear is counterbalanced by the outsized Elector influence large states have over smaller states. The “geographical privilege,” as you put it, is a moving target that changes from election to election. It is not an automatic advantage for smaller states. California has 55 Electoral votes. North Dakota has only 3. California’s outsized influence was on display in 2004, when a swing of a mere 60,000 votes in Ohio would have handed John Kerry that state’s then 20 Electoral votes, making Kerry the president with a 271-266 Electoral vote win despite G. W. Bush’s 3+ million national popular vote majority. Bush’s national popular vote margin was larger than Hillary’s, yet Kerry came within a whisker of victory. California alone would have provided Kerry with over 20% of his Electoral margin of victory.

It should also be considered that a simple national popular vote system would most probably end any chance of ever having anything close to a national popular majority winner. It would foster a large field of candidates, resulting in a president representing a coalition of small minority voting blocks. The Electoral College always provides a clear winner in a timely manner.