“Durr, It’s A Republic, Not a Democracy, Durr” And Other Terrible Arguments

Actually, neither silent nor a majority

Whenever you observe that the Electoral College is indefensible, someone invested in the legitimacy of a president illegitimately chosen by the Electoral College is likely to retort that the Constitution established A REPUBLIC, NOT A PURE DEMOCRACY. This phrase is, as a late great writer once said, words next to each other:

Because of the strong tendency to valorize the founding fathers and the Constitution, many people will still defend and rationalize the Electoral College. But it’s exactly as indefensible as it seems on its face. Departing from the norm that the candidate with the most votes wins places the burden of proof on the deviant institution. Defenders of the Electoral College will often invoke the phrase “the United States is a republic, not a democracy,” or observe that the United States is not a “pure democracy.” But these explanations do not constitute meaningful defenses. Even if the American president, as in most other democratic countries, was elected by popular vote, the United States would still be a representative democracy, not a pure one. Given the complexities of American government in the 21st century, the concept of pure democracy, where every citizen votes on every policy issue or initiative, is meaningless.

The Electoral College has to be defended on its own merits. Which is a problem for apologists, because it can’t be. Indeed, even the origins of the Electoral College make it look worse, not better. Some founders, including James Madison, preferred a direct popular vote. But the Electoral College was a compromise made to accommodate other concerns. Some founders believed that the citizens’ political ignorance would be a problem, and that the public should have their votes filtered, first by elites in the Electoral College and then by members of Congress (where the founders, who didn’t anticipate the formation of a party system, expected most elections to be decided.)

The Electoral College also was designed to increase the representation of slave states; slaves, of course, did not vote but were counted as three-fifths of a person when apportioning the House of Representatives— which, in turn, determined the representation states received in the Electoral College. It should go without saying that both of these justifications are not merely inadequate but repugnant in 2016. Moreover, the Electoral College still has a distinctly white supremacist tilt, as it substantially over-represents white voters, a factor that contributed to Donald Trump’s victory despite losing badly to Clinton in the popular vote.

Some will defend the Electoral College on the grounds that it requires presidential candidates to pay more attention to small states. But there is little reason to give small states, already overrepresented somewhat in the House and massively overrepresented in the Senate, yet another thumb on the scale. Besides, if it were a good idea in theory, it doesn’t work in practice. As Ari Berman of The Nation observes, “94 percent of campaign visits and money went to just 12 states.” To defend the Electoral College on the grounds that it broadens the scope of presidential campaigning is truly perverse.

I don’t think the electors picking Hillary Clinton would be a good idea for various reasons, and of course if they did the House wouldn’t certify the result anyway. But the possibility and the response does underscore that belief in “originalism” is almost always opportunistic:

Three eminent legal scholars have advocated a more radical, short-term solution. They have argued that the Electoral College should fulfill its original function by having the electors independently choose Clinton as the better-qualified candidate with greater popular support. There is a certain dark irony to the fact that a system designed to prevent the people from choosing an unqualified demagogue has resulted in the election of an unqualified demagogue not chosen by the people.

But a move by the electors to override the Electoral College and elect Clinton would be a disaster. Her presidency would be fatally hobbled from Day One. The potential for violence would be terrifying, and the presidential election system would be permanently broken—and the Republicans would declare any future Democratic winner an unqualified demagogue. The cure would be worse than the disease.

Preventing someone like Donald Trump from becoming president was a core reason why the Electoral College was instituted. That doesn’t make electors exercising independent judgment a good idea — and, pace the framers, an actually democratic system for picking the president would have defeated Trump — but it does show that nobody can really defend the Electoral College, but people who stand to gain from minority rule feel compelled to rationalize.