Two Cheers for the Electoral College

It’s over. Again. Probably for good this time. On Friday, Georgia certified its official election results with Joe Biden winning the state. Today, Michigan followed suit. And after a Trump-appointed judge in Pennsylvania threw out Trump’s lawsuit over the weekend, Pennsylvania counties today started the process of doing the same.

Nevada certifies tomorrow. Arizona’s counties have all certified their results, with statewide certification set for November 30. Wisconsin will do so on December 1. But Biden doesn’t need them to win.

And now that we’ve reached this point, I want to offer up a measured, but enthusiastic two cheers for the often-maligned electoral college.

It’s fashionable to hate on the electoral college. It’s popular in some circles to distort the historical record or ignore it outright, and to pretend that the institution is a relic of our country’s sordid history of slavery (it isn’t: https://nyti.ms/3kgEXWX). But it seems clear to me that, through the controversial election of 2016, and the even more controversial election this year, the much-derided Electoral College is doing its job – perhaps not perfectly, but at least decently well.

What is that job, exactly?

The electoral college is the offshoot of an oft-forgotten fact of American politics: In this country, we don’t have national elections. Instead, we have 50(ish) state-wide elections that occur (for the purposes of selecting national office-holders) somewhat concurrently. That being the case, despite the recently fashionable preference for nationalizing election policies, it remains, by Constitutional decree, largely up to each state to decide how best to conduct its own elections.

Why, though, the electoral college?

The founders considered a number of possible alternatives for selecting the national chief executive. The one they rejected out-of-hand, multiple times throughout the Constitutional Convention, was the one many clamor for today: direct election by nationwide popular vote. They also rejected a number of other alternatives. Selection by the legislature was deemed disruptive to the balance of powers by making the executive branch subservient to the legislative. Selection by state governors was seen as making the federal government too subservient to the state governments (the key problem with the preceding Articles of Confederation that the entire Constitutional Convention existed largely to fix).Ultimately the convention settled on indirect election by a transient body, itself elected by the people a single time for a single purpose: to choose the President.

But WHY?

First and foremost, the electoral college is designed to prevent “cabal, intrigue and corruption,” as Alexander Hamilton put it in Federalist 68. I know I’m going to take a beating on this one from my friends on the right, but for those of you who are absolutely convinced that Joe Biden has “stolen” this election from Donald Trump, let’s go to the numbers:

Given the state-by-state vote totals as of this writing (with some states’ final results still awaiting official certification), in order to change the outcome, at a *bare minimum* Trump would have needed provide enough hard evidence of malfeasance or error to flip the states with the three closest margins: GA (~12,000), AZ (~10,000), and WI (~20,000). Successfully reversing the results in all three would have gotten him to a 269-269 tie, throwing the election to the House of Representatives voting state-by-state (something that hasn’t happened in the last 196 years), with the Republicans controlling more state delegations.

So in order to successfully challenge Biden’s win, Trump needed to prove (not speculate . . . not tweet about . . . not hold press conferences on . . . *PROVE*) that an absolute minimum of 42,000(ish) votes in three states were improperly cast. In all of modern history, the *most* any recount prior to 2020 has moved the result in any state was in Florida after the razor-thin election of 2000. In that extreme case, the recounts and lawsuits changed 1,247 votes. Forty-two thousand was always an impossibly tall order.

From those three states, the math for Trump got even harder. To actually get to 270, Trump also needed to overturn the results in NV (~33,000 vote margin), or to replace one of the above states with PA (~81,000 vote margin) or MI (~156,000 vote margin). That was never going to happen – and quite frankly, it never should.

What does the electoral college have to do with any of this?

Theoretically, if you buy the story of “millions of fraudulent votes” in places like Philadelphia or Detroit, a popular-vote majority system would make it possible for fraud in one or two major cities to run up the numbers so much that it would override the nationwide vote. But under the electoral college, even the fraud on a city-wide scale that Donald Trump alleged in places like Philly and Detroit was never going to be enough to change the bottom line. Even if any one of the allegations he attempted to make seriously in a court of law (as opposed to unserious allegations in the court of public opinion) was proven true, at a scale that could swing an entire state, Trump needed *at least three* in order to pull out a win. He needed to provide an actual demonstration, with actual proof, of corruption not just on a city-wide scale, but a nation-wide scale. That didn’t happen.

And if you *don’t* buy the Trump campaign’s story of massive fraud in Detroit or Philly, the electoral college still serves a useful function. With the electoral college in place, it’s not a matter of convincing the people on the other side that fraud in a single city doesn’t delegitimize the results. With the electoral margin spanning multiple states, it is mathematically *impossible* for fraud in one city (or two cities, for that matter) to have changed the outcome here. The electoral math protects the legitimacy of this election in a way a popular vote system never could.

That is the electoral college’s first hedge against corruption and cabal. It localizes their impact, where a popular vote system would nationalize it.

Another is the fact that each state’s slate of electors must be certified by the State Legislature. And with the sole exception of Nevada, Every. Single. One. of the disputed states’ legislatures – both upper and lower houses – is controlled by Republicans. If there was ever enough real, genuine, fraud to delegitimize Biden’s victory, it would have to mean that an absolute minimum of four GOP-controlled state legislative chambers (plus two more in another state, or the democrat-controlled legislature of Nevada) were in on the con, against their own and their party’s interests.

Checks and balances are the electoral college’s second hedge against corruption and cabal, and are the reason many of Trump’s last-ditch efforts have focused on trying to persuade state legislatures to overrule the voters in their states.

That was, again, never going to happen. For this sheer desperation play to work, he would have had to persuade not one, not two, but *three* state legislatures to overrule what they see (even if Trump’s supporters do not) as the expressed will of the constituents to whom they answer directly. Any single legislative chamber taking that leap on its own would be committing electoral suicide en masse, to no effect. Trump needed six of them, in three states. It was always the very longest of long shots, and a miss was always inevitable.

But a hedge against corruption is not the Electoral College’s only job. The other is a ward against the danger outlined by James Madison in Federalist 10: “Complaints are everywhere heard . . . that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”

Here’s where I’m going to take a beating from my friends on the left: Madison makes the simple (but often forgotten) point here that we are not, in fact, a democracy – ruled by the will of “an interested and overbearing majority” with no thought for the “rights of the minor party.” Instead, we are a constitutional republic, in which the majority is given a say over most things, but in which the voices of those not in the majority are *supposed* to be protected.

One of those protections is the electoral college. Pure majority rule – the much-vaunted “one man, one vote” standard – is little more than a codification of “might makes right.” As the saying goes, “Democracy is two wolves and a lamb voting on what’s for dinner.” The electoral college simply gives the lamb an extra vote on the matter.

Let’s go to the numbers again. Consider 2016, when Hillary Clinton won the popular vote by just under 3 million votes, but Donald Trump won the electoral college 304-227 (due to a handful of “faithless electors” on either side.)

Clinton’s popular vote margin of 2,868,519 votes was vastly exceeded by her margin in the state of California alone (4,269,978 votes). Outside California, Trump won the popular vote across the entire rest of the country by a substantial margin. A popular vote system would have allowed an “overbearing majority” within a single state to dictate terms to the rest of the country.

It gets worse. Clinton’s margin of victory in the two largest counties in the country: LA County in California and Cook County (Chicago) in Illinois, was 2,853,280 votes. That’s almost the entirety of her popular vote victory, coming from two of the bluest metropolitan areas in two of the bluest states in the country.

Outside of those two counties, Trump’s popular vote loss was down to only a few thousand votes. Add in any other Clinton-leaning metropolitan area in the country, and you have three cities making up the entirety of her popular vote victory, as a majority across the rest of the country goes for Trump.

Talk about an “overbearing majority”!

Now let’s look at 2020:

As of this writing, with a few handfuls of ballots left to recount and a few state totals left to certify, Joe Biden has a popular vote margin of nearly six million votes. That margin may shift somewhat as the recounting finishes, but not by much. Depending on any faithless electors, he will win an electoral majority somewhere in the neighborhood of 306 electoral votes to Trump’s 232 – the exact same margin of victory Trump would have received in 2016 if all electors had voted as pledged.

As with Clinton in 2016, Biden ran up huge margins in California. But unlike 2016, the margin in CA is *not* enough by itself to give Biden a popular vote victory. He needs around 900,000 votes from other states in order to get there.

If you start to look at the more granular popular vote, where Clinton would have been elected practically by her margins in LA and Chicago alone, it takes the 17 largest counties in the country for Biden to exceed his nationwide popular vote margin. We’re talking the five largest counties in deep-blue California, but also the four largest counties in Texas – still a red state, much to the chagrin of Democrats who hoped to flip it this year. We’re talking Miami-Dade county, where Trump’s sizable gains against his 2016 performance delivered him the state of Florida against many expectations. We’re talking Maricopa County, Arizona (Phoenix) which went narrowly for Trump in 2016, and narrowly for Biden in 2020. We’re talking King County, WA (Seattle) and Clark County, NV (Las Vegas). We’re talking about voters in blue states, red states, and purple states who gave Biden the numbers to rack up his popular vote victory – and who gave him an outright *majority* of 51.06% of the popular vote, rather than Clinton’s *plurality* of 48.53%.

Instead of being decided solely by LA and Chicago, thanks to the electoral college the election in 2016 was decided in places like Phoenix, Arizona; the bellwether Erie County in northwestern Pennsylvania; and Omaha, Nebraska (encompassing the state’s 2nd district) – all of which went for Trump.

And in 2020, the election was decided in places like . . . Phoenix, Arizona; Erie, Pennsylvania; and Omaha, Nebraska – all of which went for Biden.

In short, Joe Biden’s popular victory in 2020 looks like a cross-section of America. Hillary Clinton’s popular victory in 2016 did not. The electoral college ensures that our elections are won by candidates whose support is not just deep, but broad. And in *both* 2016 and 2020, the electoral college majority goes to the candidate with broader *nationwide* appeal, rather than to the choice of a deeply-motivated, geographically-limited, “overwhelming majority.”

That is precisely as it should be. The electoral college did its job in 2016 – and did it again in 2020.

(and before you point to the 2000 election as an attempted counter-argument, keep in mind that Al Gore’s popular vote victory of ~500,000 votes was exceeded by his margin of victory in the two boroughs of Manhattan and Brooklyn alone, or in Chicago all by itself – not exactly the stuff that broad-based, national mandates are made of).

Is it perfect? Not at all. For one, James Madison and Alexander Hamilton both explicitly preferred the system currently in place in Maine and Nebraska, where electors are awarded district-by-district rather than winner-take-all. Both founders were horrified when, in the run-up to the election of 1800, Thomas Jefferson engineered a switch to “winner take all” in his native Virginia – then the largest state – to give himself an advantage in consolidating his home state’s support. Other states inevitably followed to avoid having their influence at the national level diluted by a unified Virginia delegation. Seeing this, Madison went so far as to propose a constitutional amendment *requiring* states to allocate their delegates by district.

Personally, I prefer that Madisonian ideal. I would like to see more states adopt Maine’s and Nebraska’s approach, which would accomplish *both* of the electoral college’s purposes even more thoroughly than they are accomplished now.

First, the potential for “corruption and cabal” would be even further localized – so as to impact only a few electoral votes rather than a state’s entire delegation. Unlike Philadelphia or Detroit, you’re not hearing any worries that fraud in Omaha swung the city to Biden . . . because even if that was true, it would only impact a single electoral vote.

Second, a district-by-district electoral system would protect even better against “overbearing majorities” by diffusing the impacts of massive metroplexes, preventing them from unilaterally delivering their state’s entire slate of electors to their preferred candidate. Blue areas in red states and red areas in blue states would *matter* again. Their residents wouldn’t feel as though they were “wasting their votes,” and would have more of a say in the outcome.

If you’re one of those calling for the end of the electoral college, you need to have some idea of how to replace these two functions – or you’re advocating in practice for the equivalent of “might makes right.” What should replace the electoral college as a bulwark against nationalizing corruption and empowering overbearing, geographically-isolated majorities? Some highly-factionalized countries (e.g., Lebanon) have accomplished these goals by dividing the institutions of government so each faction is guaranteed a key leadership role. Others (e.g., post-war Iraq) have adhered to quotas in the legislature to ensure disadvantaged voices are represented.

And in the U.S., where our political divisions have coalesced along a rural/urban divide ever since the ink was still drying on the Constitution, we have the electoral college to ensure that an overbearing urban majority cannot marginalize, ignore, and eventually drown out the rural minority.

And mostly, with a bare handful of exceptions over the years, it has worked as intended. 2020 is not one of those exceptions. Neither was 2016.

And so, I offer up a hearty and heartfelt two cheers for our imperfect system. It has done well for us far more often than not – delivering peaceful transitions of power between factions for over 200 years in all cases but one (the election of 1860, after which the losing candidate from the outgoing faction took up arms against the country led by the winner).

Notwithstanding Trump’s current grasping at straws, I suspect it will continue to do so for the foreseeable future.

And that is, by and large, a very good thing.

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