Letter to a high school journalist about malapportionment, the slave power, and the patriotic duty of the electoral college.
Earlier today, I received an email from a local high school journalist, whom I’ll call “J,” asking for my thoughts on the Electoral College. Here’s what I said:
As you might expect, I have plenty of thoughts about the Electoral College.
First of all, the Electoral College as such isn’t the problem. The basic idea of the Electoral College is as a layer of reasoned deliberation between the public and the awesome power of the presidency. Sometimes mass votes are swept up in chaos and hysteria, and when that happens it’s all too easy to lose constitutional democratic institutions. In those situations, it’s the job of the Electoral College to step in and preserve the Republic.
Alexander Hamilton explained the point in Federalist Papers number 68: the members of the Electoral College are supposed to be politically independent. The Constitution actually forbids them from being federal officials, because they aren’t supposed to be seeking reelection themselves. The idea is to make it so they can’t be intimidated by an angry mob — the Founding Fathers were trying to avoid a scene like we saw in Wisconsin after that videotape of Trump came out and Paul Ryan dis-invited him from a rally: an angry crowd menacing Ryan back into line—the idea of the Electoral College is to have a group of calm women and men who are free to consult their consciences and the good of the country even when the public is losing its mind.
If anything, we need the Electoral College more than ever right now. We’re faced with a nominal President-Elect (but the Electoral College has not yet met, so he can still be stopped) who is a clear and present danger to the United States Constitution — who has repeatedly expressed his desire to suppress and punish his political opponents with litigation, imprisonment, and outright violence, who has done his best to undermine the legitimacy of both the electoral process and the judicial process, and who openly plans to use the power of the office for personal enrichment. A nascent movement of Electoral College members calling themselves “Hamilton Electors” is planning to exercise their constitutional right to vote independently (on constitutional right, see this) and try to keep Trump out of the White House, and I desperately hope they succeed, because our democracy itself may be at stake.
The real problem with the Electoral College is how they’re selected. Under the constitution, each state gets as many Electoral College members as its number of seats in both houses of Congress. And each state chooses how to select the members of the Electoral College who represent it — with only a couple of exceptions, they all do this by saying that the winner of the state’s popular vote on Election Day gets to choose all the Electors from their state.
But the Senate isn’t apportioned by population, but just a flat two Senators per state. What this means is that the Electoral College, like the Senate, gives lots and lots more power to voters in thinly populated states.
Here’s what this means in practice. Mississippi, Arkansas, and Louisiana have a total of 20 electoral votes. So does Illinois. But there are about 13 million people in Illinois, and about 11 million people total across Mississippi, Arkansas, and Louisiana.
The winner-take-all system hurts people in the more populated states even more. A candidate can win by millions of votes in Illinois, California, and New York, and have those votes cancelled out by tiny margins in states like Wyoming, Mississippi, and, yes, Iowa.
The Radical Republican abolitionists used to talk about the “slave power” — -that set of institutions meant to prop up the power of slaveholders and slaveholding states. The infamous three-fifths compromise, according to which slave holders could actually partially count their slaves as part of the population for purposes of representation in Congress (and the Electoral College) was the most egregious slave power institution, but the malapportionment of the Senate and of the Electoral College, and the way this still even today favors thinly populated former slave states in the South along with some of the Midwest and Mountain states, is still a key vestige of the slave power. And it is that malapportionment that may put Donald Trump in office despite Hillary Clinton having won well over a million more votes than he did. Unless the people whom the Republican Party nominated to join the Electoral College in the states he won step up and do their patriotic duty and put someone else — a normal, non-authoritarian, Republican would be perfectly fine — in office.