Is the Electoral College Un-Democratic? You Bet. Unfair? Nope.

The Electoral College was the subject of a "pro" and "con" debate between two New Jersey Star-Ledger guest columnists. I will focus on the argument against by Kean University assistant professor Frank Argote-Freyre, which he titled “Outdated Institution.” Argote-Freyre writes:

[The Electoral College] is fundamentally unfair and undemocratic.

It makes a mockery of the one person, one vote principle. Under it, every vote is not equal.

I left these comments, edited for clarity:

Undemocratic? If by democratic one means pure, or what I call fundamentalist, democracy, it certainly is. And that’s a good thing. Fundamentalist democracy is as un-American as communism, Nazism, and slavery—that is, it is a manifestation of totalitarianism. Fundamentalist democracy is absolute majority rule, whereby the majority can vote to execute dissenters, as in Ancient Greece, or persecute minorities, as some Muslim democracies do to non-Muslims, or enslave a minority, as in the pre-Civil War American South, or control the life of or seize the property of one’s neighbors, as in the modern regulatory welfare state.

If by democracy one means the process by which free people control their governance in a constitutional republic—a process consistent with a free nation based on fundamental individual rights—the Electoral College is in no way unfair. Every voter in every state counts toward choosing her respective state’s electors. Within the context of a constitutional republic's democratic process, there is nothing inherently unfair about the Electoral College.

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; not in a United States of America. This does not mean the popular vote shouldn’t matter. But there are better 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.

The national popular vote is irrelevant—and logically so—given the wide diversity of interests and concerns among the people in the states. In fact, if you take out California, by far the biggest state, Trump won the national popular vote by 1.5 million (at last count). California went for Clinton by a 4.3 million vote margin. That’s a lopsided 62-32%, way out of touch with the national electoral mainstream but enough to swing the national popular vote totals to Clinton. If you take out New York, another big state with a similarly lopsided Clinton margin, Trump won the other 48 states by 3.2 million. There were no large states that went for Trump by anything close to the CA-NY margins. Even reliably Republican Texas, the second biggest state, only gave Trump a 9% point margin. I mention this only so one can easily see why the national totals are irrelevant.

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). The fact is, every voter has the same equal, albeit effectively meaningless, choice; each votes his choice as to which candidate to assign his respective state’s electoral votes. In fact, depending on state-level rather than national-level popular votes to choose a president, each individual voter has more influence because she is one part of a smaller voter pie.

Though important, the vote is secondary. The primary concern of the Founder Fathers was to protect the rights of the individual to live and work according to his own judgement and conscience without infringement by King, cleric, elected legislature, et al. The right to vote was not primary. It couldn't be, as the Founders rightly considered individual rights to precede government. Since “to secure these rights, governments are instituted among men,” the issue of voting only arises with the creation of a government.

Notice the hierarchy established in the U.S. Constitution's philosophic blueprint, the Declaration of Independence. First, it is established that man has certain unalienable individual rights—life, liberty, and the pursuit of happiness. Then, “to secure these rights, governments are instituted among men.” Only after establishing the imperative to recognize rights and the need for rights-protecting government does the issue of voting arise—the “consent of the governed” clause pertaining to the government’s “just powers.” The right to vote is a logical extension of our fundamental rights as human beings. It is not one of them.

In other words, the Founders didn’t intend to create an absolute democracy, in which the vote is the be-all and end-all of liberty (The term “democracy” doesn’t even appear in the Declaration or the Constitution). This is important when considering the process by which our votes choose our political leaders. One of the areas in which the Founders 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 an unhealthy concentration of power and thus the emergence of tyranny. What kind of tyranny? Not just monarchy, but all kinds of tyranny, including the tyranny of the majority. It’s called the separation (or balance) of powers, also referred to as checks and balances.

Enter the Electoral College. The Electoral College must be understood within the context of the separation of powers, a device for protecting individual rights. By giving the states, through their elected legislatures, the constitutional responsibility to pick the president through the Electors they appoint, the states can act as a check on the power of the federal executive branch, as well as a check on each other.

The state legislatures can step in and override the popular vote for a variety of reasons. For example, in the case of an inconclusive vote—e.g. voting machine breakdowns, massive fraud, terrorist attack, etc.—the state legislature can assert its authority to choose the electors and facilitate the smooth completion of the electoral process. In addition, the electors, though morally duty bound to cast their votes for whom they are pledged, can constitutionally change their votes to nullify a popular vote in the unlikely event that an irrational, emotionally charged electorate chooses a demagogue with dictatorial ambitions, or other extreme circumstance. It is entirely within the realm of possibility that the Electoral College process may someday prevent the rise to power of an elected American Hitler or Chavez.*

But the Electoral College does not sidestep “the will of the people,” to use that ridiculous catchphrase (what “will” of which “people?” “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. A better term is, “the will of the victorious electoral faction”). The popular vote does count. The state legislators—to whom Article II assigns the responsibility to choose, “in such Manner as the Legislature there of may direct,” the electors—are themselves elected by popular vote.

The important point is that the Electoral College is part of the checks and balances that prevents tyranny and thus protects our freedom, while also acting as a reliable and efficient means to choose our leaders. The primacy of liberty, not democracy, is the goal of the American republic and the starting point of American politics. America is about liberating each citizen to govern his own life, not give him the power to govern others. The right to vote is not primary. It logically follows from the individual’s inalienable rights to life, liberty, property, and the peaceful, non-predatory pursuit of happiness: That is, the right to have a say in the operation of the government created to protect his fundamental rights—a government constitutionally limited to protecting individual rights.

Judged from the perspective of the primacy of democracy, the Electoral College is, if not undemocratic, certainly less democratic than a direct national popular vote. But judged from the American perspective, the primacy of liberty, there is nothing undemocratic about it. The reactionaries against Americanism have largely succeeded in convincing us that liberty is about having a tiny part of a collective voice in governing other peoples lives. But liberty is not about the vote. It is about barring the majority from interfering in the individual’s right to govern his own life. Don’t let the democracy fundamentalists get their way. They are not champions of individual liberty. Keep the Electoral College. It is, in my view, a valuable and unifying—and quintessentially American—institution. It is a valuable tool for restricting majority rule and protecting our basic freedoms.

* In the leadup to the Electoral College vote on December 19th, 2016, there was a popular campaign to convince the electors not to cast their votes for Donald Trump on the grounds that Trump is unfit to be president, such as that his “impulsive nature would lead the country into another war.” The attempt failed, as expected. In the end, seven electors voted for people other than those they were pledged to, with Trump losing two votes and Clinton losing five, leaving a final tally 304-227 for Trump. The defections went to John Kasich [1], Ron Paul [1], Bernie Sanders [1], Colin Powell [3], and Faith Spotted Eagle [1]. I don’t believe Trump is incompetent or unfit, at least not enough to warrant an electoral college upset of the voters. And he certainly doesn’t rise to the level of a Hitler or Chavez. But it is the job of the Electoral College to consider such issues before voting. While it may seem like a rubber stamp, it is not. It is a real structural bulwark against tyranny.

Related Reading:

The Electoral College is anti-democratic—and that’s a good thing by Jason Brennan

The Conscience of the Constitution—Timothy Sandefur

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

Avoid ‘Majority Rule’—Keep the Electoral College in Fact and in Spirit