The Electoral College gets a bad rap these days (when it isn’t being invoked as part of the Founders’ little-known plan to stop Donald Trump). For the second time in five elections, the winner of the presidential contest will have won fewer of the American people’s votes than his losing opponent. How can America call itself a democracy if we don’t even have majority rule?
Trump himself clearly feels the force of this question. If he didn’t, why would he protest that he would have won the popular vote if he had focused on winning it — or, outrageously and completely unjustifiably, claim that Hillary Clinton’s popular vote victory was largely due to fraud?
But Clinton didn’t win a majority of the vote either. She won a plurality, as did her husband in both of his victories. Indeed, of the 18 presidential elections since the end of World War II, seven (1948, 1960, 1968, 1992, 1996, 2000, and 2016) were won with less than a majority, and, of the 11 remaining contests, three (1976, 1980, and 2004) were won with less than 51 percent of the vote. A decisive popular majority is actually far from the norm.
A plurality victor surely has a better claim to the office than someone who only won a minority — but what if the plurality is only 30 percent? Someone with so little popular support would surely have a hard time claiming to represent the will of the people — indeed, she could easily be the least-preferred candidate of a majority. That’s why some winner-take-all contests — like France’s presidential race — make provision for a runoff. That still shuts out certain perspectives — the recent California Senate runoff featured no Republicans, for example — but at least the eventual winner has the imprimatur of a popular majority.
If the National Popular Vote compact ever goes into effect, however, there wouldn’t be any national runoff. The compact is an agreement between the states to award their electoral votes to the plurality winner of the popular vote, and it goes into effect when enacted by a group of states representing an electoral majority. (It has already become law in states representing a total of 165 electoral votes; 270 are needed for the laws to be triggered.) Without a runoff, in a multi-candidate race the presidency could easily go to someone who won considerably less than 50 percent of the vote.
This, of course, is possible in our Electoral College system as well. Indeed, in any first-past-the-post system, it is possible for a minority of the electorate to elect a majority of representatives. The United States Congress, which is apportioned so as to best approximate an equal number of votes per district, routinely features Republican majorities even in elections where a national majority of votes go to Democrats. The reason? Partisan gerrymandering has been more helpful to Republicans in recent years than it has been to Democrats.
But the Electoral College at least ensures that the plurality winner’s vote is geographically well distributed. Bill Clinton in 1992 and Woodrow Wilson in 1912 won Electoral College landslides even though they each won less than 45 percent of the vote. Under a national popular vote system, there would be no incentive to broaden the base of a party’s support. Rather, the incentive would be to run up the score in the least politically diverse regions. If we worry now that elections are all about increasing polarization to turn out the base, a national popular vote could easily make that problem worse.
Moreover, consider how such a system would interact with an electoral process run at the state level. Right now, there are ample partisan incentives to tilt the electoral playing field one way or the other — incentives that Republicans in particular have responded to with increasingly egregious anti-democratic legislation. But in swing states, there’s at least the opportunity for the other party to fight back. Under a national popular vote system, states dominated by a single party would have even greater incentive than they do already to push such attempts to manipulate the electorate to the limit — and single-party domination would make it much easier for them to accomplish that goal.
The purpose of elections is not to reflect the will of the people, but to establish the consent of the governed. To achieve that, we should want people across the country to hear from and be courted by both parties.
So instead of eliminating the Electoral College, perhaps we should reform it the way Nebraska and Maine have done, and apportion all but two of each state’s electoral votes by congressional district. Combined with a national reform to eliminate gerrymandering (as has been already been achieved in Iowa), this would mean competition for votes all across the country. Any serious candidate for the presidency would have to run a truly national campaign, and speak to the country as a whole, not just to those who already speak and think the way they do.
The Electoral College came about as part of a compromise to enhance the electoral clout of slave states. Because slaves counted as three-fifths of a free man for apportionment purposes, via the Electoral College voters in slave states "counted" more than voters in free states. But the problem here is slavery, not the compromise. After all, today states with more minors, felons, and others not eligible to vote — including immigrants who are here illegally — get a similar boost for apportionment purposes, and that is generally regarded as more just than not counting them at all.
The more important point, though, is that the original compromise was about keeping the union together in the face of deep and largely unresolvable disagreement. Equality of representation was sacrificed in the service of that goal. That is the kind of compromise that every successful political system makes, because unless the viability of the system is maintained, other concerns like making that system more fair can never be addressed.
Those genuinely concerned with maintaining the viability of our own system should structure their proposed reforms in a similar spirit.