Opinion |

Electoral College: A disaster for democracy

Democrats have many reasons to hate the Electoral College. But Republicans are badly mistaken if they think it’s their friend. Yes, in two of the last five elections (2000 and 2016), it gave the Republican candidate the White House despite a Democratic victory in the popular vote. (That also happened in 1876 and 1888, mainly because the votes of recently enfranchised African-Americans were suppressed.) But the Electoral College is a bipartisan loose cannon, a game of Russian roulette that threatens democracy itself. Have Republicans forgotten their near-death experience in 2004, when it almost delivered the White House to John Kerry despite his 3-million-vote loss to George W. Bush?

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President-elect Donald Trump got it right in 2012 when he called the Electoral College “a disaster for democracy.” Only after winning did he change his tune, declaring he was “never a fan … until now.”

Despite Hillary Clinton’s popular victory margin of more than 2.8 million votes — 48 percent to 46 percent — Trump boasted of “a massive landslide,” “one of the biggest … in history,” in the Electoral College. Not quite: Trump’s majority of 304 votes out of 538 (56.5 percent) ranks 46th in 58 presidential elections. He squeaked by in decisive Wisconsin, Pennsylvania and Michigan by fewer than 78,000 votes combined, with margins of less than 1 percent. No president in history, except John Quincy Adams in 1824, has taken office after being so clearly and emphatically rejected by Americans.

Trump supporters cried foul over efforts to persuade his electors to vote for others. But they can’t have it both ways. The power of electors to ignore the will of the people, even in their own states, was purposely built into the system that gave Trump the presidency. It’s a growing problem that threatens both sides. We saw a record number of “faithless” electors in 2016 — two pledged to Trump and five to Clinton.

The only logical response is for all Americans, on a nonpartisan basis, to join forces to abolish or neutralize this unpredictable travesty. A constitutional amendment would be difficult, but as an alternative, Congress could approve the “National Popular Vote” interstate compact. Yet Trump and other modern defenders of the Electoral College, including federal Judge Richard Posner and academic Larry Arnn, serve up a strange brew of counterfactual arguments to keep it.

Trump claims he could have won the popular vote by just campaigning more in a few big states like California and Texas, and that because of the Electoral College he campaigned in “a lot of [small] states that you wouldn’t [otherwise] spend a lot of time in.” Nonsense. Clinton could have changed her campaign strategy too.

It is simply a myth that the Electoral College helps small states. Each state does get two extra votes based on its equal representation in the Senate. But that is overwhelmed by the Electoral College’s primarily population-based, winner-take-all allocation, which confers crushing dominance on large states. It has always forced presidential candidates to focus overwhelmingly on a handful of big swing states. A direct popular vote would eliminate such artificial distortions. Candidates would simply seek potential supporters everywhere, in perfectly fair proportion to wherever they might be found.

Posner and Arnn suggest the Electoral College ensures a president with national instead of regional support. On the contrary, it creates an opening for defeated minorities to impose a president on the rest of the nation — which actually happened in 2000 and 2016, and almost did in 2004. And who’s to say any candidate is merely “regional”? Democrats and Republicans are spread throughout the red and the blue states, in every region. In a presidential election, why should it matter where any voter lives?

Posner claims a direct national vote would increase the risk of close outcomes and “debilitating” recounts. No, it’s the Electoral College itself that dramatically multiplies the odds of disputable razor-thin margins. Posner cited the 2000 Florida dispute, which destroys his own argument. In a national popular election, the 537-vote margin in Florida that year would have been irrelevant, just like the 366-vote margin in New Mexico, and margins under 7,000 in Iowa, Oregon and Wisconsin. Al Gore won the popular vote in 2000 by an undisputed margin of more than half a million.

The closest national vote since the 1880s was John F. Kennedy’s 0.2 percent edge (about 118,000) over Richard Nixon in 1960. By contrast, just from 1960 to 2016, there have been 28 state-by-state margins of fewer than 7,000 votes. There were plausible fraud allegations in 1960, but the Electoral College magnified the problem. They centered on two states (Illinois and Texas) where Kennedy’s combined margin was about 55,000 votes — less than half his national plurality, but on which a huge and decisive chunk of electoral votes turned.

It is an insult to America to suggest we lack the capacity to conduct a fair and reliable direct election for our national leader. Many other countries manage this, even without our long democratic tradition. If recounts are needed, strict criteria and deadlines should be imposed. Better yet, we should invest the resources needed to make our elections fully reliable in the first place.

Wildenthal teaches constitutional law at Thomas Jefferson School of Law in San Diego.