Political mildness is scarce nowadays, so it has been pleasantly surprising that post-election denunciations of the electoral college have been tepid. This, even though the winner of the presidential election lost the popular vote by perhaps 2.8 million votes, more than five times the 537,179 votes by which Al Gore outpolled George W. Bush in 2000.
In California, where Democrats effortlessly harvest 55 electoral votes (more than one-fifth of 270), this year's presidential winner was never in doubt. There was no gubernatorial election to excite voters. And thanks to a "reform," whereby the top two finishers in a multi-party primary face off in the general election, the contest for the U.S. Senate seat was between two Democrats representing faintly variant flavors of liberalism. These factors depressed turnout in the state with one-eighth of the nation's population. If there had been more excitement, increased turnout in this heavily Democratic state might have pushed Hillary Clinton's nationwide popular vote margin over 3 million. And this still would not really matter.
Political hypochondriacs say, with more indignation than precision, that the nation's 58th presidential election was the fifth in which the winner lost the popular vote. In 1824, however, before the emergence of the party system, none of the four candidates received a majority of the electoral votes, and the House of Representatives chose John Quincy Adams even though Andrew Jackson won more popular votes — 38,149 more, although only about 350,000 of the approximately 4 million white males eligible to vote did so. All four candidates had been together on the ballots in only six of the 24 states, and another six states, including the most populous, New York, had no elections — their legislatures picked the presidential electors.
In 1876, Rutherford B. Hayes won the electoral vote even though Samuel J. Tilden won 254,694 more of the 8,411,618 popular votes cast. (With 51 percent, Tilden is the only presidential loser to win a majority of the popular vote.) In 1888, Benjamin Harrison won the electoral vote 233 to 168 even though President Grover Cleveland won the popular vote by 89,293 out of 11,395,083 votes cast. In both years, however, exuberant fraud on both sides probably involved more votes than the victory margins.
So, two of the five 21st-century elections (2000 and 2016) are the only clear and pertinent instances, since the emergence of the party system in 1828, of the winner of the popular vote losing the presidency. Two is 40 percent of five elections, which scandalizes only those who make a fetish of simpleminded majoritarianism.
Those who demand direct popular election of the president should be advised that this is what we have — in 51 jurisdictions (the states and the District). And the electoral vote system quarantines electoral disputes. Imagine the 1960 election under direct popular election: John F. Kennedy’s popular vote margin over Richard M. Nixon was just 118,574. If all 68,838,219 popular votes had been poured into a single national bucket, there would have been powerful incentives to challenge the results in many of the nation’s 170,000 precincts.
Far from being an unchanged anachronism, frozen like a fly in 18th-century amber, the electoral college has evolved, shaping and shaped by the party system. American majorities are not spontaneous growths, like dandelions. They are built by a two-party system that assembles them in accordance with the electoral college’s distribution incentive for geographical breadth in a coalition of states. So, the electoral college shapes the character of majorities by helping to generate those that are neither geographically nor ideologically narrow, and that depict, more than the popular vote does, national decisiveness. In 1912, Woodrow Wilson won just 41.8 percent of the popular vote but conducted a strong presidency based on 81.9 percent of the electoral votes. Eighty years later, Bill Clinton won 43 percent of the popular vote but 68.7 percent of the electoral votes. In 2008, Barack Obama won 52.9 percent of the popular vote but 67.8 percent of the electoral vote.
The 48 elections since 1824 have produced 18 presidents who received less than 50 percent of the popular vote. The greatest of them, Abraham Lincoln, received 39.9 percent in 1860. So, on Monday, when the electors cast their votes in their respective states, actually making Donald Trump the president-elect, remember: Do not blame the excellent electoral vote system for the 2016 choice that was the result of other, and seriously defective, aspects of America’s political process.
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Lawrence Lessig: The Constitution lets the electoral college choose the winner. They should choose Clinton.