Opponents of President Donald Trump are fond of noting that Hillary Clinton won a majority of the votes in the 2016 election—a fact that he denies with just as much fervor. Both assume that the majority should rule.
Yet that is exactly what the framers of the Constitution wished to guard against. Tyranny of the majority is still tyranny. On a recent hiking vacation in Austria, a fellow hiker asked if it were true that Clinton won a majority of the votes. “Yes,” I answered. “And that’s not a mistake, but a decision built into our constitution.” The poor woman triggered a U.S. civics lesson (that may have been more than her casual question warranted!).
The same majoritarian argument is being made in the wake of the mid-term election: A majority of votes nationwide were cast for the Democratic Party—“so Dems should be in power.” Although I’m sympathetic to concerns over many of the actions and most of the rhetoric of the Trump Administration, the Constitution balances raw voting power with geography.
Power in Congress: Senate overweights smaller states
The House of Representatives is the “people’s house” with representation driven by population. Were half of the U.S. population to live in New York City, half of the House would represent NYC interests and nothing contrary to NYC interests would likely pass. The first House of Representatives in 1789 was dominated by the populous states—of the 14 total, Virginia, Massachusetts and Pennsylvania controlled 40 percent of the votes among them.
There’s one exception to this population rule: Every state gets one representative even if that person is the sole resident. The average population of a House district in New York was about 719,000 as of the 2010 Census. Yet Wyoming’s sole House representative, Liz Cheney, represents about 568,000, the entire population of the state.
The U.S. Senate, by contrast, is driven by the geography of our state boundaries. We are the United States of America, remember. The Constitution is the result of a compromise among the states, some more populous than others. Approval of the new constitution was not a sure thing—many wondered if agreement could be reached. One reason the rural, less-populous states were willing to sign was that their population disadvantage was offset in the Senate.
My captive Austrian student was surprised to learn that Vermont has two senators and yet has a population smaller than my home county, New York’s Monroe. Or that the Bronx, New York City’s least populous borough, is larger than the state of Rhode Island (with its two senators) by more than 100,000 residents.
Why can the Electoral College and popular vote diverge?
Nothing in the Constitution mandates that the president should be elected by popular vote. We could change the Constitution if we chose. The structure of the Electoral College was intentional.
The Electoral College was principally intended as a failsafe against voter susceptibility to demagoguery. Listen to Alexander Hamilton defending this complex process governing the Electoral College:
The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. The Federalist Papers #68
Clearly, Hamilton did not contemplate television. (Or hip-hop, but that’s another matter altogether.)
The Electoral College reflects same state-based power dynamic as Congress. Each state receives Electoral College votes equal to the sum of its House and Senate members. Thus, the Electoral College overweights less-populous states, although to a much lesser degree than the Senate. By vote share, the most powerful voters in presidential elections are the residents of Wyoming. Each of its Electoral College members represents 195,000 residents while Electoral College members from California represent 712,000 (courtesy of the Washington Post).
Each state also retained the right to choose how its electors would be selected, thus how its votes would be cast. Most states require that all of its electoral votes be cast for the candidate that receives the majority of the popular vote within that state. Exceptions are Maine and Nebraska, which allocate their votes by majority vote within congressional districts.
It is this “winner take all” system for guiding the votes of a state’s electors that is responsible for most of difference between the national popular vote and the Electoral College result. Consider the 2016 election. Clinton won 48.2 percent of votes cast versus 46.1 percent for Trump. (Clinton is often credited with winning over 50 percent, but that ignores the 6 million votes for other candidates, e.g. more than 4 million for Libertarian Gary Johnson and more than a million for Socialist Jill Stein.) Clinton’s popular-vote margin over Trump was 2.9 million votes. Yet Trump won 57 percent of the electoral votes to Clinton’s 43 percent, and Clinton supporters cried foul.
The blame, however, rests with the states, not the Constitution. By my calculations, had electoral votes by state been allocated according to popular vote totals within each state (instead of winner-take-all), Clinton would have won, but barely, securing precisely 270 electoral votes. Move a mere 400,000 votes in either New York or Texas to Trump from Clinton (about 4 percent of votes cast) and Trump would have won the Electoral College vote by 2. (Anyone who would like to see the underlying data may email me at [email protected])
Why the two-party monopoly?
Winner-take-all puts third parties at a distinct disadvantage. It’s possible for a candidate to win a plurality of the popular vote but not take a single state, thus earning no electoral votes at all.
It is the states that choose to favor the two major parties. The Constitution does not limit the choice to two—in fact, it specifies that if a candidate fails to win a majority of electoral votes, the House of Representatives shall choose among the top five vote-getters.
Suppose 2016 electoral votes had been allocated to the top five candidates, proportional to the votes of residents? Johnson would have earned two electoral votes in California and Stein would have taken another. Johnson might have picked up votes in Colorado, Illinois, Indiana, New York, Ohio and Texas, depending on the rules applied. Independent Evan McMullin would have received one vote in his home state of Utah. My rough analysis gives Clinton the win with 262 votes to 256 votes for Trump (which appears to confirm that the Libertarian, Johnson, took more votes from Trump than Clinton).
Why do we care?
The practical consequence of the current system is to distort the importance of individual states in the general election. As New York City votes overwhelmingly for Democrats (and is half the state’s population), the odds of a Republican candidate winning the 29 New York electoral votes are slim. Only rarely does a Democrat need to defend New York or a Republican choose to contest it.
Perhaps there is some mercy in this. New York residents are spared the bombardment of campaign ads and candidate appearances that fellow voters in the so-called battleground states like Ohio and Florida must endure. Yet this result seems unfair, violating the spirit of the Constitution, if not the letter. We New Yorkers simply matter less than residents of Florida or Ohio.
The state Legislature in Albany could fix this tomorrow, however, by choosing to allocate our 29 electoral votes in proportion to vote totals. The state’s Republicans would like the idea!
Do away with winner-take-all
This peculiar process of electing electors is silly, to be sure. But the framers’ decision to create voting rules that give the majority a bit less weight in presidential elections seems reasonable. It’s the winner-take-all decisions of the states that ought to change. The Democrats in control in New York and California are just as likely to make the change as the Republicans in Texas or Florida, however. Short of a constitutional amendment (good luck with that), the Electoral College is here to stay.