In my last column (“Not all votes are created equal”) I pointed out that Hillary Clinton’s popular vote margin over President-elect Donald Trump was more than 688,000 votes. Now, with nearly all of the votes counted, her margin is more than 2.84 million votes.
Nevertheless, in a close Electoral College race, Trump by virtue of winning traditional Republican states and narrowly winning four pivotal states – Florida, Michigan, Pennsylvania and Wisconsin (all by margins of less than 1 percent) – will be our next President.
I have characterized our adherence to the Electoral College system as a historical anachronism born out of a mistrust of the voters to select a president; a time when many citizens were ineligible to vote, and when travel and communication was difficult, thus making a national election all but impossible, and when there were only 13 states and the number of electors (all of whom were unbound) was manageable.
None of these factors exist today.
Adhering to this anachronism when there are 50 states, 538 electors, (almost all bound by express or implied winner-take-all rules); when travel and communication is almost instant, allowing a truly national campaign for president, and when the pool of eligible votes has been greatly expanded, compromises the legitimacy of our democracy.
Apologists for the Electoral College argue that it was designed to protect the interests of smaller states.
Not so. In the 1700s, when the nation transitioned from 13 colonies to one nation, there was no way of knowing how many states would ultimately emerge from colonial territories, land purchases, or conquest – or whether their population would be large or small.
The debates in the Constitutional Convention of 1787, which led to adoption of our Constitution by the 13 colonies, struck a long-term compromise between large and small states – one that would be meaningful whatever number of states eventually emerged.
The legislative branch of the national government – a Senate and a House of Representatives – was structured to allow each state (large or small) to have two senators; representation in the House would reflect state population differences, with no state having less than one representative.
This was the Constitutional Convention’s grand compromise between large and small colonies/states. It was ultimately adopted by all 13 colonies, thus giving birth to the nation. Today this compromise fully protects small- and medium-size states. In fact, these states (most are rural, politically conservative, and located in the South, Midwest, or Mountain regions) have near perpetual control of the Senate.
Census data makes this point clear. The 15 largest states account for two-thirds of the nation’s population (and have 19 of the 20 largest cities in the nation). But in post-World War II politics they have little chance to control the Senate.
The 35 medium and small states have a third of the nation’s population, but overwhelming power and control in the Senate. It is doubtful the founding fathers contemplated this degree of minority power.
Senate powers in turn give medium and small states inordinate power to shape and control the judicial branch of the national government; this derives from constitutional provisions requiring Senate confirmation of all judicial appointments (including Supreme Court nominees).
In short, the Electoral College is not needed or justified today. It was certainly not created to balance powers between large and small states. That balance was struck by the 1787 compromise.
Arguably, the unforeseen and unintended consequences of this compromise have ceded too much power to a minority of the nation’s citizens. The Electoral College simply compounds this problem.
Moreover, in today’s politics the Electoral College disenfranchises many voters. It shifts the focus of both major parties from a national electorate to a strategically selected (relatively small) number of states that are in play and may secure the 270 electoral votes needed to win the presidency. Many voters in large and small states are ignored by this tactically driven gaming of the system engaged in by both parties.
Finally, one should note that voting rights (and election by popular vote) have been expanded steadily since the Constitution was ratified. Freed slaves obtained the right to vote in 1870; the popular election of all senators was confirmed in 1913; women were given the right to vote in 1920, and the voting age was reduced from 21 to 18 in 1971.
Doing away with, or at least significantly modifying, the Electoral College system is a necessary step in this progression. A minority of strategically located voters should not determine who becomes president.
Election of the president by popular vote, or by the precise apportionment in every state of electoral votes (on the basis of actual votes cast) is required, if we would preserve our democracy and the fundamental principles of “one person, one vote” and “the majority rules.”
Orlando Delogu of Portland is emeritus professor of law at the University of Maine School of Law and a longtime public policy consultant to federal, state, and local government agencies and officials. He can be reached at email@example.com.