During the early weeks of the 2004 presidential campaign, I and my neighbors in Oregon’s Willamette Valley were under siege. We could hardly drive to the Kroger store without running over a presidential candidate or a member of his family. During those heady days, John and Teresa Heinz Kerry, Sen. Max Cleland, Vice President Dick Cheney, and a host of other surrogates appeared to tells us how deeply interested in Oregon and Oregonians they were.
Then, on September 22, 2004, the Oregon Supreme Court ruled that Green Party candidate Ralph Nader had not submitted enough valid voter petitions to qualify for the Oregon ballot.
Without Nader’s “spoiler” presence on the Oregon state ballot, the Bush-Cheney ticket had no chance to carry Oregon’s seven electors. That was the last we saw of our celebrity admirers. The rest of the campaign was about as hectic as opening day of the two-for-one Pepto-Bismol sale at Payless Drug.
And that brings us to the Rube Goldberg contraption built by the Constitution’s framers to pick president—the so-called “electoral college.”
The roots of the electoral system—the Framers never called it a “college”—are complex and contested. One reason it appealed to some Framers was that they believed that in a country as huge as the new United States (nearly four million people!) no figure, after George Washington, would command the support of a majority). Thus the people would vote for electors; usually no candidate would get a majority; and the House would decide. (That happens today if there’s no majority or a tie.)
The Framers also distrusted democracy. But the deepest roots of the system lie in slavery. As Madison explained at Philadelphia, the South was populous, but it restricted the right to vote far more than the North, and would lose influence. Many people in the South, of course, were slaves and could never vote. Madison thought this unfair; the South “could have no influence in the election on the score of Negroes.” Like the Senate, the electoral vote system was a firewall for slavery.
The system was a bad idea that quickly went haywire. That happened first in 1800, when a mix-up about electors threw the presidential vote into the House, sparking 35 ballots over a week—and rumors of an attack on Washington by outraged Jeffersonian militias—before the House picked Thomas Jefferson as the winner. Since then, the “college” has misfired over and over. In 1824, an electoral tie led to the selection of the popular and electoral vote loser, John Quincy Adams, over Andrew Jackson. In 1876, a disputed presidential election was settled by a commission set up by Congress—whose Republican majority awarded every disputed elector to the Republican candidate. “His Fraudulency,” Rutherford B. Hayes, lost the popular vote by 4 percent, but he won the commission vote by 8-7, and the electoral college vote by 1 vote.
Now, in the 2000s, the electoral college has twice awarded the presidency to the candidate who lost the popular vote. Al Gore in 2000 beat George W. Bush by half a million votes, but Bush won the presidency (the vote that counted was 5-4). Hillary Clinton, early returns suggest, this week received at least 300,000 more votes than Donald Trump; but, because of where his votes came from, Trump will receive somewhere between 279 and 330 electoral votes—well above the required 270.
Not surprisingly, after the brutal presidential campaign, Clinton supporters are crying foul. A change.org petition admits that if Trump’s pledged electors
all vote the way their states voted, Donald Trump will win. However, they can vote for Hillary Clinton if they choose. Even in states where that is not allowed, their vote would still be counted, they would simply pay a small fine - which we can be sure Clinton supporters will be glad to pay!
It’s hard to imagine a more cynical appeal. As my readers (both of them) know, the prospect of a Trump presidency revolts and terrifies me. Trump is a vile and anti-constitutional candidate and he will be a danger to many Americans and to the country as a whole.
But imagining the electors could, or “should,” break with constitutional duty in order to reverse the results of the election profoundly misunderstands even the concept of democracy. That’s true even though Clinton (whom I supported) “won” the popular vote. That’s a meaningless victory.
To understand why, go back to the 2004 Oregon Case of the Disappearing Candidates. In 2000, Ralph Nader had drawn 5 percent of the Oregon vote; there’s reason to believe his support was even deeper, because many of his supporters held their ballots until returns made it clear that Al Gore would need Oregon’s electors to defeat George Bush; then they drove to their county boards of electors and delivered the mail ballots. Gore squeaked out an Oregon win by 0.5 percent.
With Nader out of the picture in 2004, there was no chance that support would move to Bush. And so the candidates moved on to other “swing states”—a list that, as we learned this week, changes every four years. The same dynamic was at work this year. Clinton and Trump visited Ohio, Pennsylvania, Florida, North Carolina, and Michigan. Trump’s fervent supporters in Texas or Nebraska, Clinton’s legions of admirers in California and Illinois, saw almost nothing of either nominee.
In other words, the candidates ran an electoral-vote, not a popular-vote, campaign. Had they been told at Labor Day that victory depended on how many votes they got, not where they got them, their travels would have looked far different—Clinton would have stoked the masses in Illinois, California, and New York, Trump would have rampaged through Texas and the South. Regardless of how many electors Trump eventually wins, he and Clinton had almost equal bases of support. We can’t know who “would” have won under a fair popular vote system.
The electoral college is a terrible device. But it is the rule each candidate ran on; railing against it now—and even offering money to electors to violate their promises—is not just futile. It also does damage to democracy—and what’s left of our democracy can’t stand any further shocks.