On November 8, Americans cast their votes, and Hillary Clinton won more of them. Although some votes are still being counted as I write this, it appears that, once California has fully reported, Clinton will end up besting Donald Trump by about 1 percentage point, or roughly a million votes. She will certainly be the winner of the national popular vote. In most democracies, that would make her the winner—and the next president. But she isn’t.
This was not a stolen election. It is not an error in our system. This is by design.
America’s Founding Fathers were too wise to establish a national popular vote for the highest office in the land. Instead, they created an Electoral College. It spreads the power to elect the president across the country, with every state getting a certain number of votes, usually winner-take-all. This system means any would-be president has to win support from a broad coalition that encompasses many diverse states.
The Electoral College Makes the President Responsive to All America
Without the Electoral College, presidential candidates wouldn’t bother seeking the support of Idaho potato farmers. They’d instead stay in the coastal cities and try to run up their vote totals there. “Flyover country” would never see a presidential candidate again. Thanks to the Electoral College, every president has to be the consensus choice of the entire country, not just a few small pockets of overwhelming popularity. The Electoral College thus strengthens the several states and our entire federal union. We are very lucky to have it.
So Hillary Clinton lost. She may have won the most votes nationwide, but her support was too concentrated in small pockets along the coasts. Only Trump was able to assemble a strong cross-country consensus, which united the South, the Mountain West, most of the Midwest, and—decisively—the Rust Belt. Thanks to his greater breadth of support, Trump will likely end up with 306 electoral votes, while Clinton will receive only 236. Trump wins.
Those are the rules of our system, and Clinton has accepted them with grace, conceding defeat the morning after the election. Many of her supporters consider it unfair, even unjust, that the candidate with the most votes will not be president (for the second time in five presidential elections). Some are even calling the Electoral College a “rigged system,” and demanding that it be neutered.
Although this is their democratic right, it would be a grave mistake to go against the Founders’ design. In any event, everyone respects the outcome of this election, because we all recognize that the Electoral College is currently the law of the land, and that Trump won it fair and square. Therefore, Trump is the president-elect.
Except…he isn’t. Everyone’s calling Trump the president-elect now, but that’s not how the Electoral College actually works. Under the system our Founding Fathers designed, not a single person in this country has cast a single vote for Trump (or, for that matter, for Clinton). There is no president-elect. There won’t be for weeks: the Electoral College doesn’t hold the actual presidential election until December 19.
Meet Your Electors!
When you vote for president on Election Day, you aren’t actually casting a ballot for a presidential candidate. Instead, you are voting for a slate of presidential electors from a particular political party. The electors on each party’s slate are hand-picked party loyalists who are competing for the opportunity to serve as Electoral College members from that state.
I’m a Minnesota resident. If I checked the box marked “Donald J. Trump: Republican” on my ballot, I was actually casting my vote for the Minnesota Republican Party’s slate of electors—ten decent, upstanding citizens, with names like Linda Presthus and Paul Wendorff, whom nobody outside internal Minnesota GOP politics has ever heard of.
Unfortunately, the Minnesota Republican electors didn’t get as many votes on Election Day as the Minnesota Democratic electors did, so the Democrats’ slate will represent us in the Electoral College instead. Nationwide, assuming no recounts, Americans elected 306 Republican electors and 232 Democratic electors.
On December 19, the presidential electors of both parties will meet in their respective state capitols. There, as required by the Constitution, they will “vote by ballot for president.” Most people expect that the Republican electors will vote for Trump and that the Democratic electors will vote for Clinton.
But they don’t have to. Every elector is free to vote for any natural-born citizen who is 35 years or older and has not already served two terms as president. The electors could cast all of their 538 ballots for (let’s say) Mike Pence, and that would make Pence the forty-fifth president. This would not be a “stolen election.” It is not an error in our system. This is by design.
A Republic, If We Can Remember It
The Founding Fathers were not exclusively—or even primarily—concerned about sectionalism when they created the Electoral College. What they were really afraid of was democracy.
The Founders trusted that that people individually were good, honorable, and wise. They bet their lives on the idea that such people could govern a country for themselves. But the Founding Fathers did not think so highly of “the people” collectively. They viewed the people as a mob, “frequently misled,” as George Washington said, “often feeling before they can act.”
Democracy, John Adams warned, is bloodier than monarchy—but only for a short time, because democracy “soon wastes, exhausts, and murders itself… Individuals have conquered themselves. Nations and large bodies of men, never.” Hamilton worried that, in a direct democracy, “Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man” to high office. (Sound familiar?)
That is why there are so few opportunities for direct democracy in the original Constitution: Senators were originally appointed directly by state legislatures (until progressives overturned this safeguard in the early twentieth century), judgeships and other posts were appointed by the president and Senate, and the moderating influence of direct democracy was contained to a single house of Congress, the House of Representatives, with no popular election larger than a single congressional district. (Even those were quite small: at the time, there were only 34,000 citizens per representative. Today, there are more than 700,000 people in each district.)
The Idea Is to Prevent Democracy
The most powerful office in the land, the presidency, was even more insulated against the popular will. As Alexander Hamilton explained in “The Federalist” No. 68, the Electoral College was created for the express purpose of preventing voters from directly selecting the president:
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
Hamilton goes on to describe how damaging it would be for the nation to have popular, direct votes for the presidency—damage any American who has lived through the past five elections should recognize:
The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments…
We see, then, that the plainest reading of the Twelfth Amendment is strongly supported by the clear intent of the Framers: the presidential electors have an absolute right to deliberate among themselves, setting aside external pressures, and to direct their electoral votes toward, as John Jay put it, “those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence” (“The Federalist,” No. 64). Indeed, this is more than a right: it is a grave and difficult duty.
Each and every elector, then, must search deep within his or her conscience and determine who ought to be the next president of the United States: the commander-in-chief of the world’s greatest military, chief executor of the world’s greatest body of laws, and chief defender of the world’s greatest Constitution. In this decision, the electors are bound by nothing—not the instructions of their state legislatures, not the will of the democratic mob. To make the electors subservient to someone else’s will, mere automata executing a decision already made, would betray the Founding Fathers, undermining the scheme of the Constitution and the presidency itself.
It is true that a number of states purport to bind electors in various ways. Many states demand that electors pledge to cast their electoral votes for a particular candidate and threaten fines for electors who “break” that putative pledge. However, these laws do not alter how votes cast by electors are counted (the Twelfth Amendment makes this clear), nor can these laws be used after-the-fact to punish electors, because—as originalist legal scholars have shown—they are uniformly unconstitutional. No sanction against a conscientious elector has ever survived court review, and such sanctions remain on the books only because they are completely unenforced.
Nor is there any risk that a conscientious elector will accidentally cause Hillary Clinton to be elected because of a “spoiler effect.” Unlike direct democratic votes in our system, the Electoral College requires an absolute majority of 270 electoral votes to win. It doesn’t just give the presidency to whoever has the most votes. If no candidate receives 270, then the House of Representatives—controlled overwhelmingly by Republicans—chooses the president from among the top three vote-getters. Regardless of how each elector acts, the next president will be a Republican.
The Responsibility Is Theirs Alone
So the decision falls to the electors. They are free to choose the next president. They cannot escape this awesome responsibility by appealing to the will of the people, nor by hiding behind a legally meaningless pledge to some state or party. Just as Clinton did not earn the White House by winning the popular vote, Trump did not earn the White House just because 306 Republican electors were chosen on November 8. Those electors now face a difficult choice. I do not envy them.
If each of the 306 Republican electors truly believes, in his or her heart of hearts, that Trump is the best man for the job, that he is the American with the greatest “abilities and virtue, in whom the people perceive just grounds for confidence,” who has all “the qualities adapted to the station” of the presidency… in that case, by all means, they should cast their votes accordingly, and Trump will become, on December 19, president-elect of the United States.
But if there is doubt; if, after deliberation with fellow electors, it seems clear that there are Americans better suited to serve as commander-in-chief, then each elector who feels that way has both the right and the duty, as officers of the Constitution of the United States, to vote for somebody else.
That is the system our Constitution demands. It is not a theft. It is not an error. It is by design.
