Later this month, our President-Elect is scheduled to go on trial in federal civil court for alleged fraud for his now-defunct Trump University real estate education program (this is unprecedented in American history). Which has gotten me to think about other universities and colleges that have failed those they were established to serve.
The Electoral College was established as part of the Constitutional Convention in 1787 and is spelled out in Article II. The College is composed of Electors that are assigned to each state based on the number of Senators and members of the House of Representatives each state sends to Washington. For example, Alabama has 2 Senators and 7 Representatives, so it gets 9 electors. New York, a state with a higher population, has 2 Senators and 27 Representatives, so it gets 29 electors. Traditionally, a candidate that wins the popular vote of a single state will be awarded all of the electors of that state. Trump won 290 electoral votes and Clinton won 228 votes, so he won the election.
But Clinton won the popular vote by between an estimated 200,000 and 400,000 votes. This is the fifth time in history that this fluke has happened—the other 4 times were when Al Gore won the popular vote in 2000, Grover Cleveland won the popular vote in 1888, Samuel Tilden won the popular vote in 1876, and Andrew Jackson won the popular vote in 1824 (he actually also won the electoral vote, but Congress chose John Quincy Adams under the 12th Amendment provision after Jackson failed to secure the majority of electoral votes).
Even Donald Trump has called the Electoral College a “disaster,” in a way only he can—via Twitter—in November 2012.
Our Constitution was drafted to “form a more perfect Union” and “establish justice.” Which is why I have been feeling frustrated and hopeful that Hillary won the popular vote on Tuesday. (Hopeful, because it means over half of Americans do not condone Trump and what he stands for).
I am frustrated because my vote didn’t count. It is my civic duty to vote, and I did it, but the Democratic votes in blue New York state basically didn’t count once the count passed that critical number needed for Hillary to secure the state’s electors. All other votes were basically extra fat for the trimming.
This also means Democratic votes in heavily red states like Alabama and Mississippi didn’t count towards anything either.
If the election had come out the other way—if Hillary had won the electoral college and not the popular vote—I would absolutely understand the justified frustration from Trump voters. We are all Americans and we all deserve to have our vote count toward the outcome.
How can we preach that people need to get out to vote, when only the votes of those in “swing states” like Pennsylvania, Ohio, and Florida tend to decide elections? Where is the incentive to vote when your state historically leans toward one party or the other?
As a baby lawyer (I am just in my first semester of 1L), I know I don’t know everything, and I know part of my professional duty is to defend our Constitution. But it’s not a perfect document and it’s amenable to change. The Constitution also said black slaves counted as 3/5 of a person, and we all know that black people are 5/5 of a person, just like everyone else. We also currently have 27 amendments to the Constitution, meaning it can change.
One defense of the Electoral College is that it protects the democracy from itself. In Federalist Paper 10, James Madison wrote about protecting the democracy against “factions” and the lurking issue of sectionalism in the new republic. But we live in a different time. While there are still the concerns of sectionalism, our nation fought a war and the outcome was that we remained together as one nation. Our populace is literate and online. We have access to information on the Internet like never before. I have faith American voters can make decisions for themselves.
One argument in favor of a modern Electoral College is the chaos that could result if the popular vote were very, very close. Recounts of individual ballots could take a lot of time and resources. But when has convenience ever been a valid reason to deny justice? Perhaps a new popular vote provision could have a “too close to call” backstop that allows electors or Congress to decide an election if the popular vote is close by a certain percentage?
I believe the Electoral College disenfranchises voters. Before this election, there was much worry and discussion about a “rigged” election and voter intimidation on both sides. But I think the disenfranchisement has been baked into our law for a while.
I know this view won’t be popular with some of my liberal friends, but I think we need to honor the Constitution as it stands today and accept that Trump won the electors in this election. But I do think we need to have a serious discussion and re-examination of this outdated institution. And I don’t want to forget about this issue until it pops up again in 4 years. I will be writing to my Senators and Representative about this over the weekend, and I hope you consider doing the same. No matter what side of the political aisle you’re on, it could be you who loses by a fluke in the next election. Yes, the Electoral College is part of the compromises that allowed our country to be formed over 200 years ago over heated sectionalist debates. But we are a different country today. One goal of our Constitution is to establish justice, so one person should equal one vote.