Op-Ed: Don’t demonize the electoral college — or the framers — as racist

To Rep. Alexandria Ocasio-Cortez, it embodies “a shadow of slavery’s power.” To the New York Times editorial board it represents “a living symbol of America’s original sin.” To filmmaker Michael Moore, it advances a “racist idea.”

What is this evil incarnate, which numerous Democratic presidential candidates want abolished? The electoral college. But progressives misunderstand the institution in their campaign to pull it down in favor of simple majority rule.

Under the Constitution, each state receives the same number of presidential electors as it has senators and representatives. So tiny Wyoming enjoys three, while mighty California gets 53. State legislatures are free to choose any method to pick the electors and control how they vote — all but two award every electoral vote to the candidate who wins the state popular vote. Because you can win a majority of electoral college votes without winning a majority of the overall national vote, Donald Trump and George W. Bush were each elected president. Those Republican-friendly results trigger Democrats to want to toss the electoral college into history’s dustbin.

Democrats defend their partisan agenda by arguing that the electoral college violates democracy. It is true that the system at least dilutes democracy. Critics, however, ignore that much of that effect is because of the states themselves. They choose to award their electoral votes using a winner-take-all approach. Regardless of whether Trump won Pennsylvania by 10,000 votes or by 500,000 votes, he received its 20 electoral votes and Hillary Clinton got zero.

If the American people wanted a direct election for president, they could force their states to divide their electors in proportion to the Republican and Democrat tallies, or even assign their electors to align their votes with the nationwide result. The more states that shifted from winner-takes-all, the more the electoral count would match the national popular vote. But instead, the indirect system, as the republic’s framers conceived it, has endured.

The framers originally deliberated between selecting the president in Congress or by nationwide vote. As it turned out, the delegates to the 1787 Philadelphia Convention overwhelmingly opposed popular national elections because of the size of the new nation and its relatively poor communications. They feared two types of candidates would come too easily to the fore: “local sons” from the voters’ own state, or “pretended patriots” and “active & designing men” — demagogues who would rule through a tyranny of the majority (a la Nicolas Maduro, in Venezuela). The framers also rejected having Congress select the chief executive, as European parliamentary systems do today, because it would make the latter too dependent upon the former.

The electoral college was proposed to be representative but also mitigate popular passions, and to prevent giving Congress too strong a hand in presidential selection. In most cases, the winning candidate has had to assemble a geographically broad, and usually ideologically moderate coalition throughout the country.

Today’s “woke” critique, however, focuses on racism. According to some scholars and commentators, the electoral college purposefully protected slavery by allocating electors based on the number of senators (thereby giving states more voice) and representatives (the Constitution infamously allowed slaves, who could not vote, to count as three-fifths of a person, thus inflating the voting power of slave states). During the Philadelphia Convention, James Madison acknowledged that the electoral college provided a necessary compromise between free states and slave-holding states, where the popular vote was diminished because slaves couldn’t vote. But that was the only time a framer actually connected slavery and the electoral college.

The racism critique ignores the nuances of history. When one looks closer, as Princeton historian Sean Wilentz has pointed out in disavowing his own earlier thinking, the racism charge related to the electoral college “begins to unravel.”

The framers sought to balance direct democracy and their fears about it, as well as state’s rights and nationalist passions, when they came up with the electoral college filter for presidential elections. The connection to the three-fifths calculation, and its empowering of slave states, was coincidental, in Wilentz’s word, more than purposeful. The electoral college was far more democratic than the earlier system under the Articles of Confederation, which had no chief executive and where every state had an equal vote. And it had strong support among the convention’s abolitionists.

Alexander Hamilton, who left the Philadelphia Convention for a week in the summer of 1787 to attend an abolitionist conference in New York, said of the scheme, “if it be not perfect, it is at least excellent.” And when the Philadelphia delegations voted on the proposal, every free state voted in support, while every slave state except Virginia voted against. This lineup makes no sense if the electoral college was secretly designed to perpetuate slavery and empower slave states.

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Most important, the claim of racism ignores the Civil War. More than 600,000 Americans lost their lives in the battle to emancipate the slaves and the Reconstruction amendments adopted thereafter removed the three-fifths clause among other legal prohibitions on equal rights. The electoral college is now no more racist than any of the other constitutional arrangements that mitigate direct democracy — judicial review, which isn’t responsive to popular will; the Senate, where states have equal representation regardless of size; anything that in turn requires Senate, but not House, consent.

The electoral college is a device that balances nationalism with states’ rights and leavens democracy’s passions with deliberation and reason. Today a system that can deny victory to the popular vote winner may seem out of step, but the framers designed it with many goals in mind, primarily to advance the people’s voice over federalism’s centrifugal forces and avoid congressional dominance of the president.

In the rush to demonize and demolish the electoral college, critics should recall G.K. Chesterton’s counsel to zealous reformers everywhere: Don’t take a fence down until you know the reason it was erected. And, we might add, if the reason still exists, the fence should probably stay put.

John Yoo is a law professor at UC Berkeley, a visiting scholar at the American Enterprise Institute and a visiting fellow at the Hoover Institution. James Phillips is an attorney and a nonresident fellow with the Constitutional Law Center at Stanford Law School.

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