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The American People Did Not Choose Donald Trump

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hamilton

Constitution worship in the United States is not just for the right, and between reverence for the document and simple path dependence there’s a tendency to ignore or rationalize even its most obviously indefensible aspects. It is surely in part for this reason that a simple but rather important fact is not getting nearly enough attention: By the standards that apply to virtually every legitimate democratic election in the world, Hillary Clinton won. Donald Trump was *not* selected by the American people. The candidate the American electorate chose will not be president because an anachronistic electoral system created to curb democracy and over-represent southern white men chose Donald Trump.

Not only does no other comparable democracy use any system like the Electoral College, no American state does (although the Constitution leaves them free to use the electoral system of their choice so long as it is consistent with “Republican” government). And Donald Trump is an all too logical product of the Electoral College’s deficiencies. As Yale Law School professor Akhil Amar put it in 2000, when Al Gore both won the popular vote and lost the election, the Electoral College “was designed at the founding of the country to help one group—white Southern males—and this year, it has apparently done just that.”

The Electoral College was essentially the product of two imperatives, neither of them very attractive. First, it reflected the belief of many framers that the “excess democracy” shown by state legislatures that had passed debt relief legislation needed to be curtailed. (It is not a coincidence that the Constitution of 1787, even after being amended by the Bill of Rights, did not protect the free speech or due process rights of citizens against state legislatures, but did prevent the states from passing any “Law impairing the Obligation of Contracts.”) The Electoral College was meant to act as a “filter” between the people and the White House. And while the idea that the electors should exercise independent judgment quickly became discredited, the Electoral College remained to potentially bequeath the White House to a candidate who is not the choice of the people.

The second major purpose accomplished by the Electoral College was to protect the interests of slaveholders. Slaves, of course, did not vote. But the Electoral College meant that slaves (which were counted as three-fifths of a person for the purposes of apportionment) would give the South extra clout in the Electoral College. And because Congress failed to adhere to its obligation under Section 2 of the Fourteenth Amendment to reduce the representation of states that disenfranchised voters, during the Jim Crow era the Electoral College allowed the South to be fully represented in the selection of the president even as it denied the right to vote to a large segment of its population.

The Electoral College, in other words, is anti-democratic twice over. As Harvard Law School’s Michael Klarman, author of the superb new book The Framer’s Coup, puts it, the framers “rejected direct election of the president mostly because they distrusted the people and because Southern slaves would not count in a direct vote.” The result was that “the malapportionment in the Electoral College, which never had a very good justification, continues to exert influence today.”

In facilitating the election of Trump, the Electoral College has effectively disenfranchised racial minorities once again. The Electoral College underrepresented Clinton’s diverse, urban-centered coalition, and overrepresented Trump’s coalition, which is based around rural and suburban white people. Trump’s white nationalist demagoguery was unable to secure a plurality, let alone a majority, in a racially diverse country—but he didn’t need one.

This is simply indefensible. The Electoral College does not serve any legitimate purpose that could justify its anti-democratic aspects. The frequent argument that it ensures that attention will be paid to small states is absurd. In reality, it means that campaigns will ignore both most small and smallish states (neither campaign, for example, seriously contested Wisconsin) and large states where the outcome is not in doubt, like New York, California, and Texas. There is no democratic value to largely confining presidential campaigns to a relatively small number of large states where the outcome is perennially in some doubt. And white rural states, which are already massively overrepresented in the Senate, hardly need further overrepresentation when choosing the president.

To paraphrase Robert Jackson, the Electoral College perpetually lies around like a loaded weapon, waiting to go off the first Tuesday of every fourth November. In 1860, the United States got very lucky because an Electoral College malfunction gave us Abraham Lincoln. But 21st century Americans are paying for it, because its two most recent malfunctions have given us two rank incompetents dedicated to doing what they can to shred all of the best aspects of Lincoln’s legacy. Many American institutions had to fail to produce President Donald J. Trump, but above all it was a failure of American constitutionalism.

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