Nate Silver, the data-crunching math nerd who runs the FiveThirtyEight website, has calculated that President Trump can win the current presidential election even if he gets up to 5 million fewer votes than former Vice President Joe Biden. Or to turn it around, with a margin of less than 5 million votes, Mr. Biden’s chances drop precipitously.
So how can that be? Isn’t one vote more than your opponent enough to win an election, or are some, as in George Orwell’s Animal Farm, more equal than others? According to Jesse Wegman, the answer lies in the U. S. Constitution.
Jesse Wegman is a lawyer, a journalist specializing in legal issues, and a member of The New York Times editorial board. In Let the People Pick the President, he calls for abolishing this system so the candidate who wins the popular vote becomes president.
Wegman reminds us that a citizen of the United States does not actually vote for president, but for “electors” pledged to vote for a candidate for us. The Founders thought a collegial group of wise, well-informed men chosen by the state legislatures would do better than a vote of the people. But the Founders didn’t allow for political parties, which now name the electors and loyalty to party, not wisdom or insight, is the main criterion for selection. And there are other problems.
One is that the number of each state’s electors is determined by the size of its delegation in the Congress, and when the constitution was enacted, enslaved people—at the insistence of the slave states—were counted as three-fifths of a person for apportioning the House of Representatives. This provision overemphasized the political power of the slave states over free states, and even today, with all states large or small having two senators, the Electoral College still diminishes the votes of more populous states and skews from accurately tracking the popular vote.
Another weakness is that all but two states today award all their electoral votes to the winner of the state, rather than allocate them in proportion to votes received. This effectively tosses out a state’s losing candidate’s votes when the national tally of electoral votes is made, which is why candidates rarely campaign in other than closely divided “battleground” states.
Given these drawbacks, the popular vote and the official electoral vote have on too many occasions over the years not agreed and a candidate receiving fewer votes of the people has become the president.
Wegman reviews the history of how this came to pass and reviews the arguments on both sides. He spends considerable ink on the views of Founder and later Supreme Court Justice James Wilson, who envisioned the new United States as a democratic, egalitarian nation. In the end, however, even Wilson gave in and devised the Electoral College to bridge the many conflicting, and to him more odious, proposals for choosing the president.
Alexander Hamilton publicly defended the Electoral College in advocating an all-or-nothing ratification of the Constitution, but in private letters, he saw the defects in it and predicted trouble. The 12th Amendment fixed a major electoral flaw barely a dozen years later, but James Madison, the “Father of the Constitution,” was never won over and continued his attempts to abolish the Electoral College for years.
And Madison was not alone. Throughout our history there have been about 700 attempts to alter or abolish its provisions. No other clause in the constitution has been so frequently the subject of amendment, yet all have failed.
Wegman details the long history of expanding the franchise in this country. For example, when the Electoral College was established only White male property owners could vote in most states. As the country grew, property requirements were dropped, then Black males were enfranchised (legally if not actually in many places), women finally got the vote, and in 1962, the Supreme Court affirmed the principle of “one person-one vote.” That is, except for the presidency—the only office that represents every American is the only office for which no American except a party-chosen elector can vote.
To solve the disconnect between the popular and electoral votes, Wegman supports the National Popular Vote Compact, a binding agreement among states that would give all their electoral votes to the winner of the national popular vote. This would make every vote equal and compel candidates to campaign everywhere and not just in closely contested “battleground” states.
Wegman has done his homework and makes a lawyerly, workmanlike case. The history is there, the legal brief is there, and the National Popular Vote Compact already has a number of states—including Vermont—on board. The compact would take effect when states totally 270 electoral votes agree and if states with 74 more electoral votes join, it will take effect and an undemocratic anachronism will be negated.
(For more information beyond Wegman’s explanation, go to www.nationalpopularvote.com)
Ed Guest lives and reads in East Burke.