{"id":26031,"date":"2016-11-21T22:38:26","date_gmt":"2016-11-22T03:38:26","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=26031"},"modified":"2016-11-22T18:55:24","modified_gmt":"2016-11-22T23:55:24","slug":"electoral-college-keep-or-toss","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2016\/11\/electoral-college-keep-or-toss\/","title":{"rendered":"Electoral College \u2013 Keep or Toss?"},"content":{"rendered":"

\"electoral-college-2016\"<\/a>By Mathew O’Neill<\/em><\/p>\n

During the Twilight craze, the country was split between Team Edward and Team Jacob.\u00a0 The battle was over Bella Swan’s heart.\u00a0 Edward, a 200-year old vampire, was devastatingly handsome, kind, chivalrous, and his skin sparkled in the sun.\u00a0 Jacob, a teenage werewolf, was brash, muscular, impulsive and fiercely protective of his tribe and Bella.\u00a0 Oh, and Edward murdered a few thousand people but felt badly about it, while Jacob only killed vampires but had a bad mullet.\u00a0 I was decidedly Team Jacob.<\/p>\n

After the 2016 election, the country is split about the Electoral College.\u00a0 There are again two camps: Team Keep<\/strong> and Team Toss<\/strong>.\u00a0 Before going into the merits of each, some brief background.<\/p>\n

As of this writing, Donald Trump won 56% to 44% in the Electoral College (290 to 232), while Hillary Clinton leads in the popular vote count 62,523,844 to 61,201,031.\u00a0 So, while Trump romped to an 11-point Electoral route, he actually got clobbered by 1,322,813 votes.\u00a0 What gives?\u00a0 I thought this was a democracy.<\/p>\n

This anomaly is the work of the venerated Electoral College.\u00a0 The College was created in Article II, Section 1 of the Constitution, which states in part:<\/p>\n

The executive Power shall be vested in a President of the United States of America.\u00a0 He shall hold his Office during the Term of four Years, and, together with the Vice President chosen for the same Term, be elected, as follows:<\/p>\n

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and representative to which the State may be entitled in Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.<\/p>\n

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.<\/p><\/blockquote>\n

The 23rd Amendment granted at least three Electors to the District of Columbia, bringing to 538 the total number of current Electors: 435 Representatives, 100 Senators and the D.C. trio.<\/p>\n

The Constitution does not direct how the states must \u201cchuse\u201d their Electors.\u00a0 In colonial times, most states did not call for a popular election to select their Electors.\u00a0 Instead, party bosses made those decisions.\u00a0 Eventually the cigar-smoke cleared, and today all states and D.C. hold a general election for President and Vice President, and nearly every state (48 of 50) has chosen to award all of its Electors to the winner of that state\u2019s popular votes.\u00a0 Thus, because the margins in various states can differ (Clinton won California by 3.5 million votes; Trump won Florida by 20,000 votes), it is possible to win the Electoral College, and thus the keys to the White House and a cool plane, while at the same time lose the overall popular vote.<\/p>\n

Which raises the question: is this acceptable?<\/p>\n

Team Toss<\/strong> says \u201cNo!\u201d<\/p>\n

Twice in the past 16 years, the loser of the popular vote has been declared the winner and President of the United States.\u00a0 This frustrates the core purpose of democracy, which is to allow the people to govern themselves.\u00a0 Yes, back in the wig-wearing days, our forefathers did not give much credence to actual voting rights \u2013 under the Constitution only the House of Representative was actually elected, and only white men could vote.\u00a0 But the Country has progressed, securing the right to elect all of our leaders, and extending the right to vote to all adult citizens regardless of gender, color or creed.\u00a0 Now we must take the next step and amend the Constitution to ensure our President is chosen by all of our citizens.<\/p>\n

The Electoral College system has effectively removed over thirty states from the Presidential election process.\u00a0 Candidates spend all of their time in \u201cbattleground\u201d states, ignoring states considered reliably red or reliably blue.\u00a0 We have all heard the grumbling from our minority party friends in these states: \u201cMy vote doesn\u2019t count.\u201d\u00a0 This creates a palpable political disaffection, one that further poisons our fractured system.\u00a0 If all votes were counted equally, all citizens would be engaged, and the candidates would campaign all across the country.<\/p>\n

The current \u201closer wins\u201d system delegitimizes the office of the President.\u00a0 If some voters in 2008 were so angry about the result that they questioned a President\u2019s birthplace (a President who huuuuugely won both the Electoral College (365-173) and popular vote (69 million to 59 million)), imagine how angry some Clinton backers are to see her opponent waltz into the White House after coming in a distant second in the popular vote.<\/p>\n

Finally, Team Toss points out, the Electoral College system creates a real possibility of a \u201crigged\u201d election.\u00a0 One Bernie Bro Elector from the State of Washington vowed he would refuse to cast his Electoral ballot for Clinton, even if she won his state (she did, by 500,000 votes).\u00a0 We\u2019ll see.\u00a0 There is even a movement afoot by some angry Democrats (on Facebook, but still) to demand that on December 19, 2016, the Electors cast their ballots for Clinton because she won the popular vote.\u00a0 Even a mediocre Hollywood screenwriter could come up with a script where some dark money overlords buy off the Electors of a key state to steal the Presidency.<\/p>\n

In sum, it is time for this antiquated system to go!<\/p>\n

Team Keep<\/strong>, meanwhile, says \u201cHold on, now.\u201d<\/p>\n

The Founders of the United States of America made their opinion very, very clear: we are not a pure democracy.\u00a0 History teaches that pure democracies eventually devolve into mob rule, where the minority of the electorate is oppressed and inevitably rises up against the oppressors.\u00a0 The Founders knew how to draft a Constitution that would elect the President by popular vote, but decided not to do that to create a buffer against potential mob rule.\u00a0 They chose a representative democracy, and their wise choice should be respected.<\/p>\n

The Electoral College ensures all states have a say in who is chosen President.\u00a0 We are, after all, the United States of America, not just America.\u00a0 If there were no Electoral College, the campaign would be fought only in the large cities and populous states, forsaking those residing in the great, vast states in the interior of the country.\u00a0 The Founders\u2019 intent could not be more clear on this point, by allocating two Electors to each state, regardless of population.<\/p>\n

The existing system ensures certainty of the result of a Presidential election.\u00a0 We all read the ridiculous assertions of a \u201crigged\u201d election in the final weeks of the campaign.\u00a0 Imagine, then, the cries of fraud if an election was decided by less than 100,000 out of 122 million votes.\u00a0 The loser could demand a nationwide recount, to be completed in a nine-week period.\u00a0 This would bring the country to a halt, clog the courts for years, and leave the transition of power of the world\u2019s greatest country in chaos.\u00a0 By reducing the winning equation from 125 million votes to 538 Electors (with any tie broken by the gerrymandered House), that frightening possibility is eliminated.<\/p>\n

As a\u00a0practical matter, amending the Constitution to change the Electoral College seems unattainable.\u00a0 The so-called Every Vote Counts Amendment <\/a>would require approval of two-thirds of the House and Senate and ratification by 38 states.\u00a0 When the outrage builds after one party loses, why would the winning party go along with this?\u00a0 And how likely is it that 38 states, many of which have just cast their Electors for the winning party, choose to upend the system?\u00a0 It won\u2019t happen.<\/p>\n

Nor should people support the constitutionally subversive effort to have states with 270 Electoral votes sign a \u201ccompact\u201d to vote all of their Electors for the popular vote winner.\u00a0 So far, 10 states have signed the National Popular Vote Interstate Compact<\/a>.\u00a0 The problems with this idea are many, Team Keep notes, including, most fundamentally, that some fraction of the total states would unilaterally be determining how to elect the President.\u00a0 The unrest from such a compact in action is not hard to imagine: what would be going on, right now, if a number of states that carried for Donald Trump were poised to instead cast their Electoral votes for Hillary Clinton?\u00a0 In the words of Dr. Peter Venkman: \u201cHuman sacrifice, dogs and cats living together, mass hysteria.\u201d<\/p>\n

Finally, John King would have nothing to do on Election Night if we did not elect the President on a state-by-state basis.<\/p>\n

* * *<\/p>\n

Team Keep, in the end, resembles Team Edward.\u00a0 Several hundred years wise, steady, and sharing the luminosity of the great Constitution of the United States of America.\u00a0 Team Toss, meanwhile, resembles Team Jacob.\u00a0 Sixteen years old, full of righteous anger, and ready to transform our electoral landscape at any November full moon.\u00a0 Edward won out in the end, and so will the Electoral College.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Mathew O’Neill During the Twilight craze, the country was split between Team Edward and Team Jacob.\u00a0 The battle was over Bella Swan’s heart.\u00a0 Edward, a 200-year old vampire, was devastatingly handsome, kind, chivalrous, and his skin sparkled in the sun.\u00a0 Jacob, a teenage werewolf, was brash, muscular, impulsive and fiercely protective of his tribe […]<\/p>\n","protected":false},"author":211,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[126,111,44,27,122],"tags":[],"class_list":["post-26031","post","type-post","status-publish","format-standard","hentry","category-constitutional-law","category-election-law","category-political-processes-rhetoric","category-presidency-executive-branch","category-public","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/26031","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/211"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=26031"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/26031\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=26031"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=26031"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=26031"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}