The Electoral College is Pointless and Unfair, and Has Been That Way For 200 Years

If you could go back to the late 1700s and abduct Thomas Jefferson and James Madison, then travel back to 2016 and show them our smartphones and semi-automatics and aerodynamics and our black President Barack Hussein Obama, they’d have a massive heart attack on the spot. A defibrillator might bring them back, but then they’d see a defibrillator and have another heart attack.

These are the people of we the people. We’ve been arguing with them for 240 years now, and we’ll keep arguing because though they gave us an unbelievably strong and forward-looking foundation, a whole lot of their ideas often don’t seem to make much sense anymore.

One of those ideas is the Electoral College.

For instance, there’s this weird clause in the Constitution that electors can’t vote for candidates on a ticket who both live in the state that the electors are voting for. In 2000, this obscure clause nearly tanked George W. Bush’s election: Both he and Dick Cheney were Texas citizens. Cheney changed his residence to Wyoming in October. Otherwise, Texas electors would have been Constitutionally barred from voting Bush. The reason? There weren’t a lot of states at first. The founding fathers didn’t want states to vote for their “favorite sons.”

Useful, yeah?

I want to be clear that I’m not whining about the fact that Clinton lost. Of course I’m upset about that. She destroyed Trump in the popular vote. Even Donald Trump thinks that in this election he was unfairly elected. But this isn’t about that. I’m going to lay out the fact that the electoral system is crazy outdated and has been screwing up more than the election — plus it isn’t partisan. George W. Bush won the 2004 popular vote by about three million (Clinton’s margin, too), but he quite nearly lost the electoral vote — 114,000 votes in Ohio carried him. That’s all.

Here’s an outline of my argument: geography, combined with the oaths electors must take, rendered the Electoral College totally pointless long ago. This affects way more than election results, too.

It goes like this:

—We can pick and choose our information; this reinforces the wall between parties

—We can choose where to live: urban areas are more liberal; exurbs and rural areas more conservative

—Population concentration in those urban areas has been increasing

—People don’t make cities liberal; cities make people more liberal

—None of this has anything to do with state lines

—BUT: Our electoral system breaks down along state lines

—Electors are sworn to vote the way their state votes

—“Locks” such as California and Oklahoma are ignored; swing states are incentivized and handsomely rewarded for their votes, even beyond the election

We have a problem, yeah?

Quick background

You have probably had a recent refresher on the purpose of the Electoral College from some expert on cable. And of course those experts disagree. It seems to me the electoral process was pretty clearly designed to prevent the very situation we have today: the folks who wrote the Constitution were worried about a populist demagogue taking the people by storm. Understandable because they’d just fought a war against a monarch, and they’d also read their Plato: “Tyranny is probably established out of no other regime than democracy.”

As a democracy develops it becomes more and more democratic — “Too much freedom seems to change into nothing but too much slavery.” Things get so diverse and identities get so confusing that it all starts to seem incomprehensible. That’s when a demagogue can make a move, attacking the elite and rallying the people, offering a simple solution for a world that’s gotten way too complicated: himself.

The Electoral College gave elites the power to prevent that bad decision.

Enter Donald J. Trump — now President-elect thanks to the very political system that was designed to stop him. What happened?

The democracy of the car

Let’s go back to the first sentence of this piece: aerodynamics. The EC was devised in an era where geography more or less guaranteed most people would always live in the same general area: A line of mountains made it next to impossible to move west and a bunch of annoying rivers up and down the East Coast fenced people in by latitude. This also more or less guaranteed a state’s population would be politically predictable. Virginians would always be Virginians. Massachusettsans Massachusettsans. Those states would vote accordingly.

Also important: Back then the largest states by geography also had the largest populations. In 1800, Virginia — the first state with over a million people — had by far the largest population. New York, Pennsylvania, and North Carolina followed. Those were also the largest states at the time. Considering how many more states we have today, the population concentration hasn’t changed all that much. Today NY is fourth largest, PA sixth, NC tenth, and VA twelfth.

But the ranking by area today? NY is 27; NC is 28; PA is 33; and VA is 35. This data is important because it shows that populations have become much more concentrated.

The founding fathers couldn’t possibly have imagined the amount of personal freedom of movement we have today: nearly everyone owns a car, and air-travel is affordable and on-demand. Geography stopped mattering decades ago. Want to live somewhere else? Pack your things and press a pedal with your foot.

The car had a profound effect on the concentration not just of populations, but of politics. Most of us prefer to live with people like ourselves. Over the years this has warped the electoral map of the United States, literally bending the geography of the voting public. Here are some wild 2016 electoral maps that illustrate how warped the system is today. If you’d looked at the same types of maps from 1800, they’d reflect the geography almost perfectly.

That’s not what’s been screwing up the system, though. The problem isn’t that we’re concentrated by state — it’s on a much smaller level. Liberals don’t live in most of the United States; conservatives do. Clinton beat Trump nationally by nearly three million votes, but Trump took enough states to win the election. Thing is, population density has almost nothing to do with state lines. Clinton won 19 states (plus DC) compared to Trump’s 31. Counties, though? Clinton won 487; Trump won 2,626.

For instance, if I told you I was a Democrat in Texas, you’d probably remark how that wasn’t really common. But then I’d say, annoyingly, “Not really Texas Texas — I live in Austin,” and you’d nod because that would make a little more sense. In fact, in Texas all our large cities are now overwhelmingly blue: Austin, Dallas, Houston, and San Antonio. Lots of red states have blue cities: Atlanta, Indianapolis, New Orleans, Birmingham, Tucson, Little Rock, and Charleston, SC.

Democrats have popular power, but the geography skews Republican. And it’s getting worse.

The political intranet

That’s a big part of the reason we didn’t notice the electoral college had been a broken instrument. But the car wasn’t politically significant without one more ingredient: The internet. And what the hell, throw cable news in there, too.

The information revolution of the last 20 years or so reinforced our political fences. It’s more accurate, though, to say the internet made it easier for politicians to reinforce the fences. Now we can self-select where we live geographically (with people who agree with us), and we can also self-select where we live informationally (with people who agree with us). Those county divides become all the more important, as do the big open spaces in the middle. Keep in mind this doesn’t mean people are getting more liberal or more conservative — it just means the fences between the two universes are increasingly higher.

(It strikes me that there’s probably a little more to the “Build the wall! Build the wall!” chants you’d hear at Trump rallies than it seems. The idea of the wall is pretty important. Trump supporters also tend to wall themselves off in terms of information and in terms of believing only what they want to believe is true.)

In two of the last five elections the candidate who won the popular vote lost the electoral vote. (This hadn’t happened since 1888.) And both times it happened to the Democrat candidate. Democrats tend to live in dense population centers, thereby giving more states to Republicans. Granted, those traditionally Republican states are less populated and have fewer electoral votes (Texas excepted), but again, a ton of data shows populations are becoming increasingly concentrated in cities. Cities make people liberal.

The split between the popular vote and the electoral college seems to reflect this: It seems to hit Democrats, as we’d predict, given that data.

But again there is 2004. George W. Bush destroyed John Kerry in the popular vote, nearly the same margin Clinton beat Trump. But Bush very nearly lost the electoral vote. If Bush had lost Ohio, he would have lost the election. He beat Kerry by 114,000 votes. (Clinton, weirdly, also lost the EC by 114,000 votes.)

Sound familiar? The problem is geography, yeah, but it’s a little more than that. And this next part has also been broken for many, many decades.

2016 was an extraordinary and historic year for the Electoral College

This all leads us to pledges. The premise of the EC was to put this critical decision in the hands of supposed “elites” as a safeguard against populist demagoguery. But states and parties — you can’t blame them — wanted to cling to their political power. Long ago states started making party electors swear an oath to vote as their state voted. This is why states are “winner take all.” This rendered the independence of the EC pretty much useless — it’s blasphemous and unamerican to vote against your party.

Plus you can get fined. Even if you open the door to a toupeed tyrant.

That said, there have over the years been 157 “faithless electors.” Of those, 71 changed over because a candidate died before the vote. But in the era of the car? Until 2016, there’s never been more than one faithless elector in an election. This year we had seven electors who acted on their conscience — and eleven tried. The last time multiple electors defected for conscientious reasons was 1836, when 23 electors from Virginia refused to vote entirely. Why? The Vice Presidential candidate had been accused of living with a black woman.

Sounds relevant to me!

This Monday, though, in a break with 180 years of tradition, five Democrats voted for a candidate other than Clinton, and two Republicans voted for a candidate other than Trump. That’s more than a little embarrassing for the anti-Trump campaign. One way to look at it is that the real story is that more people disliked Clinton, despite all the anti-Trump coverage in the media. This is a continuation of the narrative after the general election.

Another way to look at it is that Clinton electors didn’t have much to lose for defecting. She was going to lose anyway. There were two symbolic votes — one from Hawaii for Bernie Sanders, and one from Washington state for Faith Spotted Eagle, an activist and the first Native American to receive an electoral vote — and three odd votes, all also in Washington, for Colin Powell.

More interesting, though, the Clinton defectors did have something on the line: They knew they’d embarrass Clinton by defecting amid all the liberal trash talk about Trump, but they didn’t let it stop them. You could conclude that Democrats actually seem more willing to go rogue and change the system than the Republicans who for months squawked and parroted anyone who said without any basis the whole thing was rigged, and then magically forgot all about it (almost) when they won. The faithless Democrats knew they wouldn’t affect the outcome, but when the chips were down they sent a stronger message about the election process than the rollover Republicans — not that it was #rigged, but that it was unfair and outdated.

Given that history, 2016 was a pivotal year for the Electoral College, even though the outcome didn’t come close to changing.

This is why it’s so important to understand that the Electoral College has never really mattered until recently. When you combine those binding oaths (and punishment for defecting) with the redistributed population and partisan density, it’s clear there’s a problem: Without voter independence, the Electoral College is pointless. It’s been there all along, but in three of the last five elections the EC has not accurately reflected the will of the people. My bet is that this election will very likely lead to serious bipartisan efforts to reform the electoral process.

Consequences vs. The Constitution

Is it even legal to make electors take an oath to vote the way their state votes, no matter what the national popular vote says? Doesn’t that defeat the whole purpose of the Electoral College?

Sort of. The Constitution says that states alone have the power to choose electors, and they can do that “In such Manner as the Legislature thereof may direct.” That means those oaths that states require are, sadly, Constitutionally legal.

But there might be daylight there. Last Friday, the Colorado tenth circuit of appeals appeared to point to a way out of this: Once a state chooses its electors, the Constitution says that the electors alone decide which candidate they want to vote for. That is, states can’t do anything beyond choosing electors. They can’t remove or punish electors who vote against the state’s popular vote — the so-called “faithless” electors we’re seeing pop up now.

That’s in direct opposition to what the EC was designed for: independent voters who can stand in the way of the people to stop a tyrannical populist demagogue with tiny hands.

The electoral college now works against itself. It’s screwing up our elections. But it’s screwing up even more than that.

Swing states get rewards

There’s a pretty popular argument that says the EC empowers the states with smaller populations, who otherwise wouldn’t have much of a say (the opposite therefore is true; that states with larger populations are somewhat restrained). That’s misleading, though: Small states are ignored. So are many large states. And the states with smaller populations are ignored precisely because they have too much power: They’re locks for Republicans.

The consequences of this go way beyond the fact that candidates don’t come to you in your small state to talk about your problems and tell you lies about how they’re going to make everything better. There are consequences for the actual governing.

For instance, after Obama won reelection in 2012 he tried to enact a plan for investing in high-speed rail. Which states did he choose to give the billions of dollars to build that railway? California, perhaps? Lots of electoral support for Obama, and rail would make sense there with its population centers spread far apart. Or maybe the heavily-liberal northeast “megalopolis” from Richmond to Boston? Or maybe a cross-country rail like the Union Pacific — a Democrat appeal to blood-red flyover country.

No: He chose to offer the billions of dollars to Florida. Tampa to Orlando. Why? It’s a swing state. It was a thank-you gift, to put it nicely. Governor Rick Scott knew the score and rejected it.

So it’s not just the small states that don’t matter — it’s every state with a locked vote. A national popular vote would force the candidates to talk to more people, not just in three or four important states. If you think this gives heavily populated liberal states the advantage, note that even if every voter in solid-blue New York and California voted for a Democrat, that’s only about 20% of the national vote. And every opposition voter in those states would now have more incentive to vote — all votes would truly count.

The Fix

Even Donald Trump — not even a week after his election — said the electoral system is “unfair.” Really: he doesn’t think he’s the rightful winner of this election. And back in 2012, Trump famously called for “revolution” — in a tweet he recently deleted — when he mistakenly thought the same thing happened to President Obama.

It’s pretty clear we have to rethink this process. There’s no perfect solution, and I’m not even sure what a great solution would be — but it sure isn’t simple.

There’s a project out there called National Popular Vote — it’s worth checking out. The idea is to get states to pledge to vote along with the national popular vote. Ten states and Washington, D.C., have reportedly passed this law (CA, DC, HI, IL, MA, MD, NJ, NY, RI, VT, WA). They say they need about twelve more states to sign on to get to a total of 270 electoral votes pledged to the popular vote. Not just blue states or big states, either. Rhode Island is on there, for instance. And just this year the Republican-dominated Oklahoma Senate passed the law — it’s still got to pass in the house. In that state, though, support for a national popular vote was 71 percent among Republicans, 85 percent among Democrats, and 87 percent among independents.

Things is, we run into the same problem: Electors couldn’t be forced to vote that way. The Constitution still allows them to vote as they please.

Okay, so maybe we empower our electors to be truly independent. Restore the power they were supposed to have in the first place — to check the rise of an dangerous populist. Well, if independent electors start splitting their votes and no one gets to 270 the decision just goes to the House of Representatives and we’re back at square one in terms of party loyalty.

I don’t think we’ll be able to agree about how to reform the Electoral College. The Constitution makes it really difficult to change it in any meaningful way. The best bet — and the fair thing, too — is to try to do away with the system entirely.

I’m not advocating this for partisan reasons, and I do see the argument that, going by the popular vote pounding that Republicans took this year, it would probably advantage Democrats. This is especially true as the country’s population shifts and white voters become a minority. But that’d be a problem if we kept the EC as-is, too: The minority vote is shifting Texas to the left; what will Republicans do when they lose Texas? A national popular vote gives Republicans incentive to finally broaden their reach and appeal to a wider range of Americans. Most importantly, though, a national popular vote would get more people engaged in the political process, it would spur healthy debate in places where now there isn’t any, and it would finally open the door for alternative parties to get some actual traction.

The founding fathers would have a heart attack if they saw an AR-15. They would also have a heart attack if they saw who we just elected President, and how we did it.

Fairness, as it should be, is non-partisan.