Sorry, That Electoral College Petition Won’t Stop A Trump Presidency

Photo: Mark Makela/Getty Images.
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and the President of the Los Angeles Ethics Commission. The views expressed here are her own.

The presidential election of 2016 will go down in the history books as the political equivalent of a tsunami instead of the expected drizzle. As we read news of Donald Trump’s plans for the first 100 days of his administration and some of his top picks for advisors, many among us are still in a state of mourning. The first stage of grief is denial. That's likely why so many people are now asking members of the Electoral College to vote against the outcome in their states. This would mean electors representing states won by Donald Trump would instead cast their ballots for Hillary Clinton when they meet to finalize the election results on December 19. I have sad news for supporters of this plan: It's a pipe dream. This is the fifth time in the history of our nation that the winner of the national popular vote (the person who got the most votes overall) is not the winner of the Electoral College. Most recently, this happened in 2000, when former President George W. Bush famously won the election despite getting fewer votes than former Vice President Al Gore. Let's back up for a minute for those looking for some background. So what is the Electoral College? It's a group of 538 people who are chosen by the political parties to vote for the president and vice president. Members of the Electoral College pledge to vote according to the vote of the people in their state. There is nothing in the federal constitution that requires electors to honor that pledge, but many states have enacted laws that would punish so-called “faithless electors" who go against the outcome of the vote. Yes, you read that right. We the people do not elect the president and vice president. The people elect the electors, who elect the president and vice president. And what is the purpose of the Electoral College? Frankly, its purpose is to protect us from ourselves. The Electoral College acts as a filter between the voters, a potentially passionate and unruly mob, and their elected leaders. The founding fathers were worried about direct elections of the first and second most powerful person in our federal government. For instance, in the Federalist Papers, Alexander Hamilton advocated against the direct election of the president and vice president and for the Electoral College, saying that “immediate election [of the President] should be made by men most capable of analyzing the qualities adapted to the station.” Put another way, voters were not viewed as being able to appropriately assess the president and vice president's qualifications without a little safety net called the Electoral College.

We the people do not elect the president and vice president. The people elect the electors, who elect the president and vice president.

The Electoral College affects modern presidential campaigns in some important ways. First, it gives small states outsized influence over our elections. Each state is allotted electors loosely based on the population of the state, unlike, say, members of the House of Representatives. That's why California, with a population of almost 39 million, has only 55 electors, while Arizona's population of almost 7 million has disproportionate sway with 11 electors. Each elector in California represents slightly more than 705,000 people, while each elector in Arizona represents slightly more than 611,000 people. The difference is even more stark if you look at Rhode Island, which has a population of just over 1 million people yet wields 3 electoral votes. This means each elector in Rhode Island represents approximately 352,000 people. Hence the people of Rhode Island have twice the representation in the Electoral College, or voter power, as the people in California. Second, the Electoral College also gives enormous power to so-called swing states. These states, which are seen as winnable by either a Republican or Democrat, receive an inordinate amount of attention by presidential candidates. While they come to California, a safely blue state, only to raise money, they go to states such as Ohio, Florida, Pennsylvania, Virginia, and North Carolina far more often and spend much, much more money, because they are actively courting those voters. This means that the concerns of swing-state voters receive more attention than the voters in solidly blue or red states. Many people feel, and understandably so, that whoever received the most votes in the presidential election should be the president. But more often than not, dislike of the Electoral College system spikes among voters when their preferred candidate does not win the presidency — when the same voters may have felt just fine if the results of the election were reversed and Hillary Clinton won the presidency despite losing the popular vote. Now back to the growing chatter about the possibility that the Electoral College could reverse course and give us a President Clinton come January.

Regardless of whether the Electoral College serves a good public-policy purpose, it is unlikely that we will eliminate or even reform it anytime soon.

More than 4 million people have signed a petition urging electors in states won by Donald Trump to instead vote for Hillary Clinton. This effort may be providing Clinton supporters with false hope. First, electors, who are chosen by the political parties and are typically party loyalists who very rarely vote against their state’s vote. Second, it is worth noting that 38 electors, more than have ever changed their votes in one election in the history of this country, would have to do so in order for Clinton to win the election. In addition to the petition, many Americans are proposing that we simply abolish the Electoral College. Barbara Boxer, the outgoing U.S. Senator from California, even introduced a bill to that effect. This would revolutionize the way we hold presidential elections. People in small states and swing states would see their voting power vastly reduced. By contrast, people in populous states and cities would have a much greater say in choosing the leader of the free world. Instead of spending the vast majority of their time in swing states, with swing voters, candidates would spend their time in the most populous cities, perhaps ignoring those in more sparsely populated areas. Regardless of whether the Electoral College serves a good public-policy purpose, don't expect to see the country eliminate or even reform it anytime soon. First, the sad truth is that most people tend to only pay attention to presidential elections sometime between Halloween and the second week of November. It is hard to keep people excited and motivated about any electoral change by the time Thanksgiving rolls around. Second, in the last 16 years, the Electoral College system has helped two Republicans who lost the popular vote win the presidency. Republicans now control the White House, the Senate, and the House of Representatives. It is highly unlikely that there is any political will for change at this moment. I am not one for pat optimism and silver linings but I take some solace in the fact that many people who did not previously understand how and why we elect our president and vice president do now. Perhaps this will be one small step towards solving one of the real tragedies of the 2016 election — that nearly half of eligible voters did not even bother to cast a ballot.

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