Let the People Pick the President: The Case for Abolishing the Electoral College

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for my mother

Democracy is the recurrent suspicion that more than half of the people are right more than half of the time.

—E. B. WHITE

Democracy is the theory that the common people know what they want, and deserve to get it good and hard.

—H. L. MENCKEN

INTRODUCTION

A MORE PERFECT UNION

The Last Step Toward American Democracy

At 4:43 a.m. on November 9, 2016, Micheal Baca, a 24-year-old Democratic presidential elector from Colorado, sent an urgent text message to a friend. I have a plan, Baca wrote.

In retrospect, it was completely insane, but these were insane times.

A few hours earlier, Donald Trump, the Republican nominee for president, had stunned the world by pulling out what may be the most improbable election victory in American history. Trump was losing the popular vote to Hillary Clinton, the Democratic nominee, by more than two million votes, a margin that continued to grow as late returns rolled in. But he’d won where it counted, in the Electoral College. Or he had appeared to.

Baca, a former marine who was earning a living in Denver that fall as a driver for Uber and Lyft, had no political experience. He knew one thing, though: You might think you’re voting for the president when you cast a ballot, but you’re not. You’re voting for Micheal Baca, or his Republican counterpart. Technically, the presidency wouldn’t be decided until the 538 electors voted, as they were scheduled to do on December 19 in state capitals around the country.

The scheme came together quickly in Baca’s mind, and he started testing it out. In a text to a fellow Democratic elector in Washington, Bret Chiafalo, he wrote, We can avoid Trump. But will need 37 Republicans to defect. Call me crazy but this needs to work.

It’s a Hail Mary dude, Chiafalo wrote back. But it’s all we got.

In regular years, the electors’ vote is a formality—a ceremonial reaffirmation of the popular vote that most Americans ignore, if they are aware it is happening at all. But in 2016, for the fifth time in the nation’s history, the Electoral College and the popular vote didn’t match, a phenomenon caused by so-called winner-take-all laws. These laws, used in nearly every state, are just what they sound like: they award all of a state’s electors to the candidate who earns the most popular votes in the state, no matter how close the margin. The key to Trump’s win came in three states—Pennsylvania, Wisconsin, and Michigan—where he beat Clinton by a combined total of just under 78,000 votes out of more than 13 million cast. That’s less than the capacity of the University of Michigan’s football stadium, but it was enough, barely, to secure all of those states’ electors, cross the electoral vote majority threshold of 270, and claim the presidency.

Baca, like millions of other Americans in 2016, including some top Republicans, believed that Trump would be the least qualified president in history. And that wasn’t counting the disturbing circumstances surrounding his victory, which included a coordinated cyberattack carried out by the Russian government on Trump’s behalf and with his campaign’s awareness. As new details of the Russian plot trickled out, Baca became certain that a Trump presidency posed an existential threat to the nation. The vote of the electors was the last thing standing between Trump and the Oval Office, and Baca was determined to keep him from ever getting there.

The good news was that the Constitution’s framers had anticipated exactly this scenario. They knew that most people would not be well informed about national candidates and feared they would be easily taken in by a smooth-talking con artist. The Electoral College was the solution. In the Federalist no. 68, Alexander Hamilton wrote that the College would ensure that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.¹ How? By entrusting the choice of the president to a select body of men in each state—men who would possess the information and discernment requisite to such complicated investigations. These electors, Hamilton assured his readers, would be most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation.

In other words, Hamilton was saying that the electors would think for themselves, reject unqualified candidates however popular they might be, and choose a leader who would govern in the best interests of the nation.

Inspiring words, and in the days after Trump’s victory, more than a few shell-shocked liberals latched on to them. Baca and Chiafalo dubbed themselves Hamilton Electors and began working to persuade their Republican counterparts not to vote for Donald Trump but instead unite behind a compromise candidate who was actually qualified for the job.

As anti-Trump protestors took to the streets around the country, blocking traffic, chanting Not my president! and clashing with police, a quieter protest was developing largely behind closed doors—an unprecedented, loosely coordinated national effort to vindicate the framers’ vision, reverse the outcome of the election, and save the republic.

A petition posted on Change.org that called on Conscientious Electors to protect the Constitution from Donald Trump by switching their votes from Trump to Clinton drew nearly five million signatures.²

Michael Signer, the mayor of Charlottesville, Virginia, at the time, and the author of books about demagogues and James Madison, published an article in Time magazine arguing that Republican electors owe it to all Americans to deliberate on their choice in the manner required by the Constitution—in short, to revolt against Trump.³

A Harvard law professor named Lawrence Lessig said he had been told of 20 Republican electors, and possibly more, who were considering voting for someone other than Trump, although none ever publicly came forward.⁴

A short video posted to YouTube and viewed more than 1.4 million times featured a solemn parade of TV and movie stars pleading with Republican electors to switch their votes. It opened with Martin Sheen, donning his spectacles and summoning the benevolent didacticism of his alter ego, President Jed Bartlet of The West Wing, a liberal’s fantasy chief executive who could recite the Federalist Papers in his sleep.

As you know, Sheen said, after quoting Hamilton, our founding fathers built the Electoral College to safeguard the American people from the dangers of a demagogue.⁵

The rest of the celebrities seemed to be trying to strike a tone somewhere between dire and apocalyptic. I’m not asking you to vote for Hillary Clinton, several of them repeated. "Any eligible person would do. They assured the electors that by voting [their] conscience" they would go down in history as brave and heroic patriots. The overall effect sounded like a group of hostages trying to sweet-talk their kidnapper into putting down the gun.

The problem was that the Electoral College has almost never operated as Alexander Hamilton pictured it would. Not since 1792 have electors been independent, deliberative actors who saw their task as picking the fittest person for the job. There isn’t even one single body of electors. Instead, each presidential candidate has his or her own slate of electors tapped by local party leaders for nothing but their partisan loyalty. Whichever candidate wins a state’s popular vote sends all of his or her electors to the state capital, where they cast their ballots for that candidate. And just in case any of them should get a notion to vote for someone else, most states have laws prohibiting them from doing so.

In other words, electors are today, as they have nearly always been, obedient partisan hacks, rubber stamps for their party’s candidate. But none of that mattered in the fall of 2016.

By later November, it seemed as though Democrats had entered a fugue state. Sure, anyone could like a video or sign an online petition; but convincing electors—a motley cast of characters made up of former politicians, party insiders, and random activists who happened to know someone powerful—that they suddenly represented the last bulwark of American democracy?⁶ It wasn’t just a handful of potential mavericks who were needed either. Trump had won states representing 306 electoral votes, which meant that Micheal Baca’s Election Night calculation had been right: at least 37 Republican electors would have to agree to switch their vote to someone else to have a chance of stopping Trump.

Even if that happened, it wouldn’t guarantee Trump’s defeat; it would only deny him a majority of electoral votes and send the election to the House of Representatives, which had not decided a presidential race since 1825. (Trump would likely have won in the House anyway, because the Constitution gives each state a single vote, and a majority of state delegations in 2016 were led by Republicans.)

The Hamilton Electors were undeterred. They knew they would never persuade Republicans to vote for Hillary Clinton, so they suggested John Kasich, the relatively moderate Republican governor of Ohio. Kasich had run for president that year before dropping out in May. If enough Trump electors agreed to switch their vote to him, and they were joined by most or all of Clinton’s 232 electors, Trump could be locked out of the presidency. Except for one thing: Kasich himself wasn’t on board. Our country had an election and Donald Trump won, he said.⁷

Hillary Clinton wasn’t on board either. Despite her large popular vote lead, her past public statements in favor of a national popular vote, and pleas from some campaign staffers, she was reluctant to sign on to any effort that would make her look like a sore loser.

Michael Signer, the former Charlottesville mayor, told me he couldn’t understand Clinton’s attitude. You spent a year saying this guy was an existential threat to the country. This is the exact purpose of the Electoral College. So why don’t you go to the mat on it?⁸

Well, for starters, as the critics of the stop-Trump effort pointed out, everyone knew the rules of the game in advance. All these earnest appeals to electors’ consciences may have been sweet music to liberals, but to conservatives they came off as both arrogant and naive, if not treasonous. Democrats were refusing to accept the outcome because they weren’t happy with it, something they had warned that Trump would try to do only days earlier.

Then there was the troubling precedent this kind of intervention would set. Imagine a postelection free-for-all every four years in which a few very motivated (and probably very rich) players try to influence the individual electors’ votes, while tens of millions of voters watch from the sidelines. Now imagine that it worked, and the presidency was ultimately awarded to someone like, say, John Kasich—a man who was no longer running for the office and who received, nationwide, a smattering of write-in votes on Election Day. It would rightly be seen as a usurpation of the will of the people, whether they had supported Trump or Clinton.

The reviews of the Hamilton Electors were coming in from both left and right, and they were not kind.

Wildly unrealistic and potentially counterproductive, wrote Ed Kilgore, a longtime liberal political columnist. He called the Hamilton Electors’ effort an impossible plot to overturn an election conducted under long-established if nondemocratic rules.⁹

Meghan McArdle, a libertarian writer, warned that if you won’t accept the results of the elections you lose, then your opponents won’t either.¹⁰

Jonathan Bernstein, a left-leaning political scientist and blogger, wrote, They should all just stop.¹¹

The electors were well aware of the national uproar surrounding them and the job they were about to perform. On December 12, one week before the vote, 10 of them—nine Democrats and one Republican—signed an open letter to the director of national intelligence, James Clapper, requesting a briefing on the status of any investigations into ties between the Trump campaign and the Russian government.¹²

As the days shortened and the odds of success grew longer, the offensive grew more frenzied. There were public entreaties, daily full-page newspaper ads, and passionate op-eds. There were even federal lawsuits challenging state laws forbidding electors to vote for any candidate other than the one they were pledged to.¹³ Breaking the law could lead to a fine or even jail time.

Michael Signer described to me the last-minute discussions over how these laws, which were on the books in 29 states but were virtually never invoked, would work in practice. What would happen that day? You couldn’t have a sheriff or someone from the state attorney general’s office go and literally force an elector to cast a vote. Would they have substitutes? Could they remove the elector and prevent them from casting their vote? There were so many unknowns, but the bottom line was clear: You really would have needed a cohort of rock-ribbed rebels ready to pay a fine or go to jail for a couple of days, Signer said. And you would’ve needed 37 of them.¹⁴

At a press conference three days before the electors convened, President Obama called the Electoral College a vestige of the founding era. There are some structures in our political system as envisioned by the founders that sometimes are going to disadvantage Democrats, he said.¹⁵ And with that, the spell was broken. The president’s words, Signer told me, kind of shut the door on the whole effort.

On December 19, the electors cast their ballots. In Colorado, where Hillary Clinton had won the statewide vote, it was chaos. Micheal Baca crossed out Clinton’s name and wrote in John Kasich’s, and was immediately disqualified as an elector under state law. When the secretary of state, Wayne Williams, announced that he had in hand eight votes for Hillary Clinton and one ballot which cannot be received, an angry crowd heckled him and demanded that Baca’s vote be counted. Williams said the electors needed to nominate a replacement elector, so they nominated Baca. Williams rejected this. We need an elector who will cast a vote for the person who received the most votes for president in the state of Colorado, he said. Eventually Baca was replaced by an elector who voted for Clinton.¹⁶

Nationwide, 10 electors broke their pledges. Three of them, including Micheal Baca, had their votes invalidated by their state. Of the remaining seven, Trump lost two. Hillary Clinton lost five.

Despite the spectacle of the previous six weeks, the Electoral College did exactly what it has done throughout almost all of American history. And why wouldn’t it have? The idea that 37 Republican electors would have somehow agreed to switch their votes away from their party’s hugely popular nominee—not to mention most or all of Clinton’s—had always been preposterous. The only time in history that so many electors had defected at once was in 1872, when 63 of 66 Liberal Republican electors refused to cast their ballot for their party’s nominee, Horace Greeley. It was hard to blame them: Greeley had died three weeks after the election.

The drama of 2016 looks all the more outlandish when you consider that America had endured the same thing less than two decades earlier—and that time it would’ve taken only three faithless electors to change the outcome.

In the weeks leading up to the election of 2000, multiple polls suggested a potential split between the Electoral College and the popular vote: George W. Bush, the Republican nominee, might well win the popular vote but lose the Electoral College to the Democratic nominee, Al Gore.

According to multiple news reports at the time, the possibility was alarming enough to some inside the Bush campaign that there was discussion of a public relations blitz to convince electors to vote for the popular vote winner. It would include newspaper ads, public appeals to local business and community leaders and influential members of the clergy, as well as interviews with radio and TV personalities. The idea, according to an article in the New York Daily News, was to capitalize on the anticipated popular uprising against the Electoral College’s essential unfairness. The media would help fan the flames, an unnamed Bush aide was quoted as saying, because the will of the people will have been thwarted.¹⁷

The Electoral College and the popular vote did indeed split that year, but in the opposite direction—Gore won the popular vote by more than half a million votes, while Bush eked out a victory in the Electoral College.

It was the first time any living American had witnessed the College reject the popular vote winner—the last time was 1888—and it was by a hair: Bush earned 271 electoral votes, only one more than the bare majority he needed. If three Republican electors changed their votes, Bush would have been blocked from the White House. Yet there would be no concerted push to convince electors to vote their conscience and save American democracy. Democrats’ fury over the split vote was diverted and diluted by the month-long drama over the recount in the absurdly close Florida race, which ended up being decided by the Supreme Court—by a 5–4 vote—in favor of Bush.

A week later, the historian Arthur Schlesinger Jr. wrote in the Washington Post that the split election puts the republic in an intolerable predicament. It is intolerable because it is undemocratic. And it is intolerable because it imposes a fatal burden on the minority president.¹⁸

Across the country, Americans retreated to their political tribes. A newspaper account from Tallahassee, Florida, in the eye of the storm, described how locals used to have civil, leisurely chats with one another, but no longer. You can feel the tension, a business owner said. Now the chats have changed into partisan verbal brawls and then into stony silences.¹⁹

In Washington, members of the Congressional Black Caucus boycotted the counting of the electoral votes. John Lewis, a Georgia representative, stayed home on Inauguration Day because, the Washington Post reported, he doesn’t believe Bush is the true elected president.²⁰

In the end, only one elector broke her pledge—Barbara Lett-Simmons, a Democrat from Washington, D.C., who withheld her vote from Gore in protest of the District’s lack of representation in Congress.

Nine months later, terrorists attacked the World Trade Center and the Pentagon, killing thousands and quickly overshadowing any lingering bitterness over the election.

The debate over the Electoral College didn’t disappear entirely. Many Americans, who had never before considered how the College operated, were shocked that Bush’s 537-vote victory in the Florida popular vote had given him all 25 of the state’s electors, while Gore got none. Over the following year, legislatures in nearly two dozen states debated switching their method of allocating presidential electors to a system that awarded electors instead by congressional district.²¹ None ended up making the change.

In the eyes of many Democrats, Bush remained an illegitimate president throughout his first term, but as the wars in Iraq and Afghanistan moved to the center of the nation’s consciousness, the Electoral College drifted out of it.

2016 was a different story. For one thing, Hillary Clinton’s popular vote margin was more than five times as large as Gore’s had been, giving Donald Trump the distinction of losing by more popular votes than any winning president in history.

There was the polarization of the American electorate, which had been increasing for decades, turning every issue into a scorched-earth battle between liberals and conservatives, who saw each other not as fellow Americans to negotiate with but as enemies to be vanquished.

And there was Trump himself—this proudly crude, race-baiting, retrograde reality TV star whose candidacy had enthralled, enraged, and divided Americans like none before. The fact that the nation had now endured not just another popular vote loser entering the White House but this particular loser triggered a fresh, intense debate over the legitimacy of our entire electoral system.

On January 21, 2017, the day after Trump was inaugurated, Americans turned out in cities and towns across the country to march in opposition to the new administration. Final estimates put the total number of marchers at between three and five million.²² It was the largest one-day protest in American history. It also served as a visual representation of the magnitude of Hillary Clinton’s popular vote margin, as though the marchers were saying, You want to know what three million votes look like? This is what they look like.

Even President-elect Trump agreed a popular vote would be better. In an interview on 60 Minutes five days after Election Day, Trump said, I would rather see it, where you went with simple votes. You know, you get 100 million votes, and somebody else gets 90 million votes, and you win.²³ (Two days later he tweeted, The Electoral College is actually genius in that it brings all states, including the smaller ones, into play.²⁴)

Meanwhile, the Electoral College stayed in the news, buoyed by a popular-vote movement that hadn’t existed in 2000, and had been building momentum over the previous decade. The Electoral College is an abomination, read a characteristic headline in the Washington Post, and Democrats should keep talking about it.²⁵

The College was a pro-slavery tool, said one constitutional historian, and it lurks in our political backyard, like some horrible monster waiting to spring on us and undermine the very notion of democratic government in the world’s oldest constitutional democracy.²⁶

Conservatives raced to the College’s defense, arguing that it was a key element of the framers’ brilliant design, and that any effort to change or abolish it is an attack against our republican form of government.²⁷

Without the Electoral College, went one common refrain, the presidential election would be dominated by California, Texas, New York and Florida, while states like Wyoming, Vermont, Alaska and Delaware would vanish from the political landscape.²⁸

Choosing the president by national popular vote would make America more like the Third World,²⁹ and could even spell the end of our constitutional system as we have known it since 1787.³⁰

For all its intensity, the fight over the Electoral College reflects an even deeper national divide between two competing narratives about American history and how popular participation in a self-governing republic was meant to work.

The conservative narrative says, in brief, that the founding fathers got it mostly right. They didn’t trust unfettered democracy, and believed it was necessary to channel and constrain the people’s voice in order to prevent a tyrannical majority from trampling the rights of minorities. Some of these constraints were good, like a two-tiered system of government with checks on majorities and filters of the popular will. Others were not good, like the denial of voting rights to nearly everyone but white male property owners. Many of these restrictions have been lifted, and while most modern conservatives agree with those changes, they were nearly all controversial at the time that they were made. Since the tendency of these reforms has been to remove checks