Blog#94 – In What Ways is the Electoral College Illegitimate Today?
The Electoral College itself is illegitimate and vitiates a key principle of constitutional law: “one person, one vote,” grounded in part on the Equal Protection clause of the Fourteenth Amendment and arguably underlying the Fifteenth Amendment as well.
Trump lost the 2016 election by a popular vote. He only won the Presidency because of the distortions of the Electoral College. The Electoral College distorts election results, and violates the principle of one-person one – vote, in the following ways:
1. Voting in the Electoral College is by states, not by counting individual votes. The number of votes a state has does not reflect the choices of its voters, but is skewed in favor of smaller states, who have three votes (paralleling the number of Senators and the minimum of one Representative each state has), and is thus skewed in favor voters in smaller states.
2. Voting in the Electoral College is by states, not by counting individual votes. In each state, all its electoral votes are cast in favor of the party with the majority of votes, and the votes of any member of the minority party in that state are disregarded, and without influence in the national result. It’s winner take all in the Electoral College vote count, which means losers’ votes don’t count at all.
3. The Electoral College was provided for in the Constitution by the framers as a compromise with the interests of the slave -holding states, and with intent to insert a buffer between a popular vote and a theoretically more deliberative small body, out of an open fear of direct democracy.
4. The numbers show that the net effect of the Electoral College procedure is to give the vote of each African-American and Hispanic citizen in each state significantly less weight in the final election result compared to the vote of each of the majority white citizens. The votes of Trump voters counted more, per person, than the votes of Clinton voters.
5. The Fifteenth Amendment, passed during Reconstruction, may well be considered to void this Electoral College arrangement, opening up to questions of the legitimacy of its results in 2016.
[1.] See http://www.theconstitutionproject.com/portfolio/one-person-one-vote/; “
An examination of the Supreme Court’s dilemmas and tensions as it stepped into the “political thicket” of voting and representational equality, establishing the practice of what has become a core American principle: “One person, one vote.” It has the echo of a core American belief. It rings with the same distinctively American clarion call for equality and individual empowerment that reaches back through the ages to the nation’s founding: “…of the people, by the people, for the people”, “All men are created equal” S But it wasn’t until 1963 that “One person, one vote” became a widely articulated core principle of the Constitution when it was first spoken by Chief Justice Earl Warren’s Supreme Court.”
[2.] “For example, Blacks constitute about 36 percent of the Mississippi electorate, the highest Black voter percentage in any state in the country. About 90 percent voted for Clinton. But whites are 64 percent of the state’s votes, and about 90 percent of those chose Trump. Trump therefore handily won 58 percent of the state’s total vote and all [100 percent] of its Electoral College votes. In 2016, as for decades, the Electoral College result was the same as if Blacks in all the southern states except Virginia and Maryland had not votes at all.” Bob Wing and Bill Fletcher Jr., “Rigged, The Electoral College,” Z Magazine, January 2017, p. 2.