Missing the Point – Is the Electoral College constitutional?

Donald Trump may one day be imprisoned for persistently claiming that Joe Biden stole the 2020 election.  I’m talking about what is known as “The Big Lie.”

Ironically, a better argument can be made, albeit for different reasons, that it was Trump who stole the 2016 election by gaming the Electoral College process which is unconstitutional.

We’re a nation of differences.  All sorts of differences.  Some are the harmless kind like our choice of which cars we buy or the NFL teams we follow.  Whether we’re a little bit country or more rock and roll.  Personally, I can’t stand the sound of opera although I certainly respect the skill of its performers.  It sounds too much like the singers are screaming at me, like heavy metal, but with culture and class.  Other people love the sound of it.  And I’ve never thought Picasso could paint worth beans.  Maybe he could paint my family room if he promised not to overcharge me.

And then there are the more serious, but nonetheless legitimate differences.  Some of us, for example – a great number of us in fact – believe that human life at any level must be protected.  Others of us are willing to draw a line, prior to which it is the parents’ option, the woman’s in particular, to allow or terminate further growth.  Unfortunately, these options are mutually exclusive.  Not even the most fervent commitment to majority rule helps.  Majority rule can settle the law, for the record, but it won’t change people’s minds.  Certainly not for the true believers.

And then there is a third category of differences, the kind you’d think could be easily resolved because almost all of us believe in one thing, and the rest of us know better, but think they’re getting away with something.  We all know these are severe problems but, for whatever reasons, we can never get around to fixing them.

For example, consider the fundamental, foundational principle of “one person, one vote.”  It’s a concept we take for granted but, as it turns out, doesn’t appear anywhere in our Constitution.  What is in the Constitution is the 14^th Amendment.  If you’ve been paying attention, it’s the 14^th Amendment that states, subject to interpretation by the Supreme Court, that no insurrectionist can hold the office of President.  Well, we’ll see about that, won’t we?

The 14^th Amendment is also remarkable for its “Equal Protection Clause” which, in Section 1 of the Amendment, says the following…

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In 1964, the Supreme Court determined that the language of the Equal Protection Clause implies the principle of “one person, one vote.”  “When members of an elected body,” including the President of the United States, “are chosen from separate districts, each district must be established on a basis that will insure [sic], as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.”

Well, the way the Constitution works, the amendments to it override the original language – including the definition of electoral college voting as defined by Article II of the Constitution.

In the 2016 presidential election, Hillary Clinton, the Democratic candidate, received 65,845,063 votes, almost three million more votes than the 62,980,160 votes cast for Donald Trump.  Trump, however, received 304 Electoral College votes compared to Clinton’s 227 and took office the following January.  Needless to say, “one person, one vote” had nothing to do with Trump’s election.

Trump won by virtue of Electoral College rules, the implementation of which varies from state to state.

According to the National Archives:

Electoral votes are allocated among the States based on the Census.  Every State is allocated a number of votes equal to the number of Senators and Representatives in its U.S. Congressional delegation—two votes for its Senators in the U.S. Senate plus a number of votes equal to the number of its Congressional districts.

The problem is that the number of people in a given state per Senator and per Congressional district varies significantly from state to state.  Delaware, for example, with only 1.02 million people as of 2022, has only 3 Electoral College votes.  It’s one of those states that has more Senators than Congressmen or women.  The state of Delaware has only one Congressional District.  Texas, on the other hand, with a 2022 population of 30.0 million, has 40 Electoral College votes.

Do the math.  Each Delaware electoral college vote represents approximately 333,000 people.  Each Texas Electoral College vote represents approximately 750,000 Texans.  How is that fair to the people of Texas?  Based on the ratio of people to Electoral College Delates in Delaware, Texas should have 90 Delegates instead of just 40.  Again, the principle of “one person, one vote” does not apply.  Even given that the states – all but Maine and Nebraska – award their Electoral College votes on a “winner-takes-all” basis, differences in how the Electoral College Delegates are allocated from state to state make the process inherently unfair.

More to the point, of course, people, not states, should be electing the President.  It’s the popular vote that should count.  The Electoral College is irrelevant and wrong.

If you have time, use the following link to take a look at the table titled “Members of the House, Electoral College Delegates, People/Delegate.”  What you’ll notice is that the ratio of people per Electoral College Delegate varies from a low of 192,284 people per delegate in Wyoming to a high of 732,189 in California.  That’s a huge difference.  Either the people of Wyoming are overly represented in the Electoral College or the people of California are under-represented or both.

Note also that a given candidate need only win the delegates of 12 of our 50 states to be elected President.  Yes, those 12 states contain a majority of the country’s population, and it may make sense from that point of view, but that’s not the point.  Think of how most (48) of the states determine which candidate their Electoral College Delegates support.  Each of these states awards all of its Delegates to the candidate that has won the majority of votes in that state.  If a Presidential candidate wins a state’s popular vote, that candidate gets 100% of the state’s Electoral College Delegates.  None of the votes cast in a given state for the winning candidate’s opponents count – because the nationwide popular vote has no impact on the outcome of the election.

The Republicans like the Electoral College inequities because they can game the system without having to offer policies that are popular with the majority of American voters.

Someone, a candidate perhaps, or some party organization, maybe some state government, needs to mount a serious challenge to the constitutionality of Electoral College voting to elect our President and Vice President.

So, you’re thinking, given the composition of the current Supreme Court, maybe this isn’t the best time to do that?  I get it.  I feel your concern.  Get over it.  Let’s do this…  It’s going to take a while.  Let’s get this party started as soon as possible.  To avoid the issue any longer is missing the point in a very, very big way.

Talk about illegitimately elected Presidents, Trump lost the 2016 popular vote by almost 3 million votes and he was declared the winner.  What’s fair about that?  Where would we be today, politically, if Clinton who was clearly the winner of the popular vote had been the candidate who took over after Obama?