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Yes, it’s time for another rant against the Electoral College

You can call complaining about the Electoral College partisan sour grapes. What I don’t think you can do is make a fair, rational or intellectually honest case that it is a net-positive feature of our system. 

Electoral College
MinnPost illustration by Jaime Anderson

I beg permission to rant (once again) against the Electoral College: to explain at least one of the reasons Republicans love it so much; to mention (again) an elegant fix for its problems that aren’t making much progress; and to suggest one (antidemocratic) reason why Republicans may oppose it. 

Let’s get the partisan punchline out of the way. Five men have “won” presidential elections while losing the popular vote. None of them were Democrats. Four of them were Republicans. (The other one was a Whig, the no longer-existent party that sort of turned into the Republican Party in the mid-19th century).

Two of the Republican loser-winners were quite recent. One of those was Donald Trump, who we will get back to in a bit. 

You can call complaining about this stuff partisan sour grapes if you feel the need to dismiss it, but I don’t think it would be honest. You can also argue that the Electoral College as currently constituted has a bias in favor of Republicans (I think it rather obviously does). What I don’t think you can do is make a fair, rational or intellectually honest case that it is a net-positive feature of our system that enables the popular-vote loser to triumph in the presidential election, which, as I mentioned, has happened five times, twice recently.

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Background: The United States, which is often viewed as a democracy, is not really one. It is a republic, and could be called a “democratic republic,” because it relies on elections. It wasn’t so reliant on them in the early years of American “democracy,” when U.S. House members were the only federal officials subject to popular vote (and even then, only propertied white males could vote in most places).  

To summarize the biggest undemocratic elements of America’s first century: Voting in many states was limited to propertied white males; U.S. senators were elected by state legislatures, not the voting public; presidents were (and still are) elected indirectly by the Electoral College (although the earliest electors were not quite such party animals are they are now); and justices of the Supreme Court are (and have always) been appointed to life terms but nonetheless have the power to overrule the elected branches on what legislation is permissible.

Put those together and you can see why I say the United States hasn’t really been a democracy for much of its history. And unelected officials (starting with Supreme Court justices) still hold enormous power. But the power of unelected officials has a deep history in our poor, dear nation, specifically in the U.S. Senate.

For the first century and a half of constitutional history (which is the majority of our history), Senators were “elected” not directly by voters but indirectly by state legislatures. That was changed by a constitutional amendment in the early 20th Century. Since that change, every feature of the U.S. federal system (other than Supreme justices) is at least subject to some input from the electorate, but perhaps not as much as you think.

As you well know, the presidency, while subject to a state-by-state choice of “electors,” preserves the possibility of being “won” by the loser of the national popular vote thanks to the quirks of the Electoral College. I won’t go into those quirks. You know most of them.

The first popular-vote loser to win the presidency was John Quincy Adams in 1824, whose party affiliation changed often during his career, when the whole party situation was much more fluid. But when JQA “won” the presidency (he finished second, by solid margins, in both the popular and electoral vote to Andrew Jackson), Adams identified with a party called the Democratic-Republicans. He later became a Whig.

His opponent, war hero Jackson, also identified as a “Democratic-Republican,” although he and his large following morphed into the Democratic Party soon after as the new two-party system came into being. (The modern Democratic Party once acknowledged its two founders by calling its annual banquet the Jefferson-Jackson Day Dinner, though many state parties — including Minnesota’s DFL party — have changed the name in recent years.)

Anyway, in that 1824 election, Jackson finished a solid first in both popular and electoral votes. But no one had an electoral vote majority as required by the Constitution. That threw the election into the House. 

Quincy Adams made a deal (known to history as the “corrupt bargain”) to get the support of third-place finisher Henry Clay by promising to make Clay secretary of state, an office which, until then, had been the stepping-stone to the presidency. It worked, and although it was legal, it was a scandal even then.

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The other four cases of loser-winners were simpler. Instead of getting the most votes nationwide, the Republican candidate “won” by getting the most votes in the right states, especially swing states. The most conspicuous example of this was the 2016 election, when Hillary Clinton won the popular vote by 2.9 million votes. That was, by far, the biggest popular vote-winning margin for any candidate who lost in the Electoral College.

There may be valid principled arguments in favor of preserving the Electoral College system, although I don’t agree with any of them. But when Republicans make any such arguments, they are not principled arguments; they are partisan arguments that go against one of the most fundamental elements of democratic elections: The candidate who gets the most votes is supposed to win.

As you know, the Electoral College system is embedded in the Constitution. And every state has electoral votes equal to its U.S. House delegation, plus two more electoral votes representing the two Senate seats. This makes the Electoral College even more undemocratic because it inflates the leverage of the small states. For example, at present, the most populous state, California, has more than 60 times the population of the least populous, Wyoming. But because of the two bonus electoral votes that do not reflect population, California’s Electoral College vote is only 18 times as large as Wyoming, thus disproportionately advantaging the Cowboy State. 

Presumably, the framers of the Constitution thought this undemocratic overrepresentation of the small states was necessary to get the small states to ratify the new document and allay their fears of being overwhelmed by the bigs. But now, two and a half centuries later, it just means that Wyoming has about three times the power over the election of presidents as it would deserve based on population, and the big population states have less leverage than they deserve on a per capita basis. I can think of no real justification for this that’s consistent with the principle of one-person, one-vote. 

Amending the Constitution to address that anti-democratic feature or to do (almost) anything else to change the Electoral College system would require an enormous and durable consensus involving two-thirds of both houses of Congress and ratification by three-fourths of the states. In other words, just thirteen states can block an amendment. Republicans control well more than that, so fixing the Electoral College problem by constitutional amendment is not a promising path.

So what about that “elegant fix” I mentioned? It’s been around for several years and I’ve written about it before: It’s called the National Popular Vote Interstate Compact. It’s basically a workaround of the amendment process. 

By signing this compact into state law, a state pledges to deliver its electoral votes to whichever ticket wins the most popular votes nationwide. But because of Republican opposition, it has little chance in red states. So far, 15 (all solid Democratic) states plus the (solid Democratic) District of Columbia have legislatively signed onto the interstate compact. In Minnesota, the proposal has passed in previous sessions of the state House, but not the state Senate. Versions of it were introduced in both houses of the Legislature in 2021, but it appears not to have advanced. No new states have signed on for three years. 

It’s a lovely idea and I hope it eventually works, or, even better, that the whole country gets sick of the many ways the Electoral College system distorts presidential elections before pigs fly. Me, I’m sick to death of the way “swing state” logic dominates presidential elections. With NPV, every vote in the country would count equally, rather than only swing votes in swing states, and America would be guaranteed a president who actually got more votes than his opponent. Quaint, eh?