We have a president, but do we have a democracy, a country? One nation, indivisible, with liberty and justice for all? Arguably not.
To begin with, we’re probably the only purported democracy in the world where the person who got the most votes, Hillary Clinton in 2016 and Albert Gore in 2000 (both Democrats), nonetheless lost the election. How can this be when a prime concept of a democracy is that the majority rules?
This anomalous situation arises because the Constitution provides that the president and vice president are not chosen directly by the people. In presidential election years, the people in each state choose “electors.” The total number of electors is 538.
This is the sum of the number of U.S. senators (100) and members of the House of Representatives(435), plus three from the District of Columbia. Earlier in our history, with fewer states and the district not recognized, the number was much smaller.
California, with the largest population, has 55 electors. No state can have fewer than three; Maine has four. The entire body of electors has come to be called the “Electoral College,” but it has never actually met as a single assembled body charged with selecting the President.
Instead, approximately 40 days after a presidential election, electors for the presidential candidate who received the most votes meet in their respective states; they actually cast the number of electoral votes the state is entitled to for both president and vice president. The electors’ votes are sent under seal to the president of the Senate, where they are opened upon the seating of the newly elected Congress in early January.
The electors within each state, though pledged to the presidential candidate who gets the most votes from that state, are not actually bound to cast their vote in this manner. However, since the late 1880s very few electors have reneged on their commitment. In January, then, the candidate who attains 270 electoral votes becomes the next president. The same process selects the VP.
There are two glaring problems with this process.
First, because the allocation of electors to each state is not tied closely to the actual number of eligible voters in each of the 50 states, small states have a disproportionately larger voice in selecting a president than larger states. This compounds the power of small states to influence federal government decision making accorded them by granting all states two senators.
For example, using 2016 data, Wyoming – the state with the smallest number of eligible voters (approx. 431,000) – has three electors: one for each 144,000 eligible voters. California, with the largest number of eligible voters (approx. 25,280,000) has 55 electors: 1 for each 459,000 eligible voters.
Though this is the most extreme disparity, it proves the point: smaller states have an unfair advantage over larger states in selecting a president.
Second, although at the national level we avoid utilizing the vote of the majority to elect a president, we take the opposite view (a winner-take-all approach) when we require each state’s electors to cast their vote for the candidate who received the majority (or even a plurality) of votes in their respective states. The skewing effect of this inconsistency in our thinking is obvious.
For example, five of the most closely contested states – Florida, North Carolina, Pennsylvania, Michigan and Wisconsin – (said to have turned the election) were all narrowly won by Donald Trump; his aggregate margin of victory was around 410,000 votes; he gained 90 electoral votes. This more than offset Clinton’s 84 electoral votes in California and New York, gained by beating Trump by 4.2 million votes.
In sum, Clinton, at the latest count, led Trump in national popular vote totals by more than 668,000 votes. This figure is expected to grow as final absentee ballots are counted. But Trump, by the skewed rules of the Electoral College, is the president-elect. He leads in electoral votes, 306-232.
In the Electoral College world by which we elect a president, votes are clearly not equal; some votes count more, and millions of votes do not count at all when individual state elector votes are cast.
Where is our sense of outrage, our belief in one-person one-vote, that every vote counts?
It’s time we recognized the Electoral College is a historical anachronism born at a time (as Federalist Paper No. 68 confirms) when the founding fathers of the country distrusted the voters and decided wise men (electors) would pick the president. The approach in Maine and Nebraska, which divide elector votes on the basis of statewide and congressional district vote totals, is a small step in the right direction.
But more can and must be done – and soon – if the legitimacy of our democracy is to be preserved.
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 firstname.lastname@example.org.