This is going to be an academic discussion – by which I mean, arguments offered in the context of an issue whose outcome is already certain. But I’m going to open it up anyway.

It’s about the Electoral College.

With the last ashes finally settling from the firestorm of this year’s election, Hillary’s margin of victory in the popular vote looks to be nearly 3 million votes. Yet she got thumped 306-232 in the Electoral College, which on Monday will vote to install Donald Trump as the forty-fifth President of the United States.  Trump’s strategy was to ditch the handful of big liberal states where Hillary piled up irrelevant blue landslides, while squeaking by in the key swing states (Wisconsin, Michigan, Pennsylvania) whose electoral votes put him over the top. As many election strategists have noted, this is a highly efficient way to approach the task of vote gathering. It is also a perfect recipe for elevating the Electoral College over the popular vote.

What do we really think about the Electoral College?  My sense is that most Americans, if they have any thought about it at all, regard it as one of those relics from the dusty back shelf of high-school civics – something you learned about without ever fully comprehending. Well, we never had to before, since the EC vote and the popular vote ran serenely in tandem for well over a century, until 2000. But now we’ve had two elections in the past sixteen years where the popular winner lost, due to the particularities of the EC. As a procedurally minded person I am not a big fan of judging systems merely by the result one happens to covet, and I get annoyed when partisan interest masquerades as principled argument. At the same time I feel pretty sure that if the Republicans had been the ones to lose those two elections, most of them would be screaming for change. You know, rigged election and all that.  

At any rate, let me think out loud about the EC and invite some response.

As I noted above, it appears that Hillary won the popular vote by somewhat more than 2,700,000 votes -- a full 2% margin. That aint chicken feed. But in theory a candidate's popular victory could be much larger than that while still losing in the EC. In fact, it is theoretically possible for a candidate to win in the EC while losing the popular vote by an 80%-20% avalanche. In reality you'd never get numbers like that. But you could get numbers significantly more lopsided than this year. All you'd need would be a bunch of super-close wins for Candidate A in less populous states, with huge wins for B in heavily populated ones. In other words, Trump 2016, only more so.

So my first question to those who stand loyally by the Electoral College is this: how big a discrepancy would you have to see between popular vote and EC vote in order for it to be concerning? If, say, a candidate won the Presidency while getting only, say, 40% of the popular vote, while the other candidate got 60% and lost, would you agree that there's a problem? I would; and it wouldn't matter to me which side was up and which was down. 

There’s only a problem, of course, if you assume that out country should be governed via direct democracy. When you look back to the inception of the Electoral College, however, you see a prevailing political mindset that was explicitly wary of just that. In fact, and ironically, the advent of the EC was a step toward more inclusivity and direct democracy – in comparison, that is, with the so-called “Virginia Plan," which would have had the president elected directly by Congress. many delegates to the Constitutional convention favored the Virginia Plan, but ultimately rejected it because of the fear of political "intrigues" and concern over the compromised independence of a president elected by Congress.  

Some Founding Fathers who otherwise might have wanted direct popular elections, including Madison, were stymied by the electoral ramifications of slavery. The EC provided  a way around that obstacle, allowing the society to keep slaves disenfranchised (or rather unenfranchised) while giving their masters' states some extra electoral bulk via the notorious 3/5 rule. Hamilton, meanwhile, supported the idea of the EC because, as he wrote in Federalist No. 68, he believed that “electors would be most likely to possess the information and discernment requisite” to “the complicated task” of selecting a president. In other words, the common person wasn’t smart enough or informed enough to be trusted with a direct vote. (And indeed, this year’s election has given rise to so-called “Hamilton electors,” who in order to prevent a Trump presidency are urging the full exercise of what they take to be the elector’s constitutional duty to be deliberative. Ironic here is the fact that many of these advocates are Democrats who otherwise would be inclined to abolish the EC altogether, on the grounds that it is antidemocratic.)

Given all of this, the question for us vis-à-vis the EC today is, Can we, do we, still stand by the ideas that it gave expression to? Or are some of those ideas outmoded?

One idea was to ensure that individual states retained their voices. The EC replicates the checks and balances put in place by having a House and Senate; like the bicameral legislature itself, it gave smaller states more power than they would otherwise have, since the number of electors equals the total sum of congressional representatives from that state, and each state has two Senators, no matter how sparsely or densely populous. But do states really have the same significance and importance today – as entities and polities -- as they did when our country was far closer to being a loose confederation of them? And if not, why are we privileging them this way?

What would be the effect of either changing or abolishing the EC?  Supporters of the EC point out that based on population alone, you could theoretically win the presidency by amassing landslide victories in four or five of the most populous states, while the EC requires a much broader geographical coalition. A popular-vote president could focus exclusively on metropolitan areas, where almost two-thirds of the US population is concentrated. If a few large states start ruling the land, with no need to consider the interests of the others, the other forty or so will have no incentive to cooperate. Smaller states, EC stalwarts tend to believe, need to have some real influence to get them invested in a Federal system.

People on the reform side argue that direct-vote elections, in addition to being more democratic, would end the excessive focus on swing states, and could diminish the effect of depressed voter turnout in the increasingly many states where outcomes are known in advance. One proposal – the one I favor -- is to keep the EC but get rid of the winner-take-all way it functions within states. You'd still have a structural bias in favor of the less populous states; but the electoral votes would be weighted according to the actuality of the popular votes within those states -- and within the populous ones, too.

Whatever we do (or don’t do), the bottom-line question is this: how big a departure from majority rule are we willing to allow in order to maintain the Electoral College -- and why, on what basis?  The EC needs a better justification than the rote recitation of such pieties as “it reflects the wisdom of the Founding Fathers.” That wisdom was exerted in very, very different circumstances, and defenders of the EC have to grapple with the fact that some of its underlying assumptions are anathema to a modern democracy. I'm referring first and foremost to slavery, of course, but also to Hamilton's vision of a class of electors chosen precisely for having better “discernment” than the actual voting citizen. Personally, it might not take much to convince me – in my more pessimistic moments, anyway -- that America is rife with ill-informed bozos who are irrational and reckless as well. (See this persuasive piece by the ACLU.) But we have moved a big distance from two and a half centuries ago, when as a society we felt comfortable designing governing structures explicitly based on this dim view. In this sense the EC is a relic of a former way of seeing things. It cannot be justified very easily according to today’s views and values. It is only there because it is there... and because changing it would require such heavy lifting.

Which is why this argument is academic: you'll never get a constitutional amendment to abolish the EC. Think of all the states that are over-empowered by it! The swing states and all the rural states, firmly anchored via their pair of Senators, whose per-capita power grows as their states’ populations dwindle. Why would they ever agree to structurally diminish their own political sway? In fact, an initiative is underway, the National Popular Vote Interstate Compact, in which participating states pledge to award all of their electoral votes to whatever candidate wins the national popular vote, thus effectively circumventing the Electoral College. Ten states have enacted this legislatively so far: California, Washington, Massachusetts, New York, Rhode Island, Vermont, New Jersey, Hawaii, Maryland, Illinois and the District of Columbia.  See any commonality in that list? And can you guess what dent the initiative would that have made in this year’s EC tally? That’s right, zero.  And what would you rate the chances of, say, Georgia, North Dakota, Utah or Texas joining it? Or even New Hampshire? Or any of the thirty states Trump won?  

So the EC will remain, even if no truly good arguments for it are found. Which is one good working definition of inertia. Or cynicism.

Then again, maybe this was a year when a flawed mechanism gave us what we deserved.  In 1920, the inimitably scathing H.L. Mencken peered into the country’s future and offered this pungent prediction concerning the Presidency: “As democracy is perfected, the office represents, more and more closely, the inner soul of the people. We move toward a lofty ideal. On some great and glorious day the plain folks of the land will reach their heart’s desire at last and the White House will be adorned by a downright moron.”

PS/ As I went to post this, I saw an op-ed in today’s Times, and a segment of the NPR show On Point that aired this morning, both of them taking up the Electoral College and in particular the issue of the so-called “faithless elector.”