This is absurd. This is an outrage. For the second time in only five elections we are about to inaugurate a president who received fewer votes than his principle adversary. And the second time is going to be much worse than the first.
In 2000, Al Gore’s popular vote margin over George Bush was about 500,000 votes — not insignificant, but still only about 0.5 percent of the total votes cast. In 2016, on the other hand, once all the votes are in from notoriously slow-to-count states like California and Washington (mostly from mailed ballots), Hillary Clinton is expected to have at least 2,000,000 more votes, or 2 percent of the total cast, than Donald Trump. That’s a larger gap in both the popular vote and percentage margin of victory over her opponent than John Kennedy in 1960, Richard Nixon in 1968, and Jimmy Carter in 1976. But they all won their races. Imagine how different our world would be if they had not.
And even when the popular vote winner has won the Electoral College, we have often been close to disaster. In 2004, for example, George Bush had a comfortable popular vote advantage over John Kerry — 3,000,000 votes and 2.6 percent margin. Yet had a mere 60,000 votes shifted from Bush to Kerry in Ohio, Kerry would have won the Electoral College and become our 43rd president.
For what is supposed to be the world’s greatest democracy, this is an embarrassment. We have only one official elected by all the people, but sometimes even that official fails to achieve that most basic of all requirements in a democracy — getting the most votes. All voters may be equal, but some, apparently, are more equal than others. Winston Churchill is supposed to have said, “Democracy is the worst form of government, except for all the others.” But had Churchill understood how we elect a president, he might have dropped the qualifier. In some ways, an unrepresentative democracy is worse than a dictatorship. Because it’s a lie. It’s a cheat. It pretends to be something that it is not. At least under a dictator, nobody pretends that all are supposed to be equal.
There are no legitimate arguments in favor of retaining the current Electoral College system. While it is true that the Founders never intended that the president would be elected by the people (because, in their view, we were not wise enough to make a good choice — and maybe they had a point there), the country has long since concluded that the most powerful office in the land is too important to leave to the elites to fill. But allowing the people of each state to choose the electors has not achieved the desired goal of putting the people in charge.
The winner-take-all system that all but Nebraska and Maine have adopted means that small victory margins in some states can more than compensate for large losses in others. And it means that some voters’ votes count more than others. And it means that voters in the vast majority of states are ignored during elections, because each side already knows who will be the victor there.
I recognize that our republic was never intended to be completely governed by majority rule. In exchange for agreeing to join our union and give up their sovereign authority, each state, regardless of population, was given equal representation in the United States Senate. This means that 26 states with only 18 percent of the overall population control one of our two legislative bodies. But that overrepresentation should be sufficient to protect the interests of the states. They don’t also need extra voting power in the executive branch. But that’s what they have now.
There is a fix to our problem of inequality. And it doesn’t involve a constitutional amendment. It’s called the National Popular Vote Interstate Compact, and it was first proposed after the 2000 Bush-Gore fiasco by two law professor brothers, Akhil Reed Amar and Vikram Amar. Under the compact, individual states pass a law pledging to award all of their Presidential Electoral College votes to whichever candidate for president wins the national popular vote. The law does not take effect, however, until enough other states representing a total of 270 electoral votes also pass identical laws. Member states also commit themselves not to withdraw their pledge in the middle of an election season, lest the entire campaign strategy of each candidate be thrown into chaos.
As of now, 11 states with 161 electoral votes have enacted the necessary legislation. It has bipartisan support, as well as the support of large majorities of the public, as shown by numerous public opinion surveys.Only the basest forms of self-interestedness are behind opposition to this reform. Some Republican legislators are opposed to a change because they think the current system favors them. And some swing state legislators are opposed because they get more attention from presidential candidates under the current system, both before the election and after (from the winners at least). But these are not principled bases for opposition. They simply represent special interest advocacy.
We need to let our legislators know that we want them to support the National Popular Vote Interstate Compact. We need to let them know that we want our democracy back. All votes for president should count, and all votes should count equally.
Donald Trump was right: the current election system is rigged — but this time, it was rigged in his favor.
Mark Anderson is a law professor at Temple University’s Beasley School of Law.