There are still more votes to be counted, but it looks almost certain that despite losing the presidency, Hillary Clinton will win the popular vote.
And likely by a million or more votes — a much larger margin than Al Gore enjoyed in 2000, when he too was denied by the Electoral College even though he had more votes.
Put more starkly: It appears Americans chose Clinton, but got Trump.
Trump’s popular vote loss likely won’t constrain his effective power as president, especially with unified GOP control of Congress — just as it didn’t seem to hem in George W. Bush.
But if the candidate who got fewer votes wins the White House for the second time in five elections, it could put a new spotlight on the peculiar way that America picks its presidents — one not shared by any other democracy.
“It certainly is going to bring this back into the forefront of public discussion," John Koza, the founder of the National Popular Vote campaign, which aims to effectively get rid of the Electoral College, said Tuesday night as the results rolled in.
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To Koza and many good-government advocates, sidelining the Electoral College is common sense.
“We think every vote should be equal throughout the United States,” he said. “We think the candidate who gets the most votes should become president."
Even on election night in 2012, when early results seemed to indicate that Mitt Romney would get more votes than President Obama but lose the electoral college (that didn't happen, Obama won both) Trump went on a tweet storm, calling "the electoral college ... a disaster for a democracy."
Five times in our history — in 1824, 1876, 1888, 2000, and, it appears, this year — the Electoral College has handed victory to the loser of the popular vote.
That’s nearly 10 percent of the time — though systematic black voter suppression and other differences in how the elections worked make it hard to determine the true popular choice in the first three cases.
The impact isn’t random, either. Since every state gets at least three electoral votes, there’s a bias toward small states. Consider that California has 69 times as many people as Wyoming, but only about 18 times as many electoral votes.
One result is to give the votes of rural whites more weight than those of urban minorities—a harmful imbalance that already exists via U.S. Senate. That’s why it’s no coincidence that the Electoral College has twice in this century benefited the party favored by the former group over the one preferred by the latter.
Sanford Levinson, the respected University of Texas Law School constitutional scholar, has called the current system "indefensible." *
Only a constitutional amendment could formally abolish the Electoral College. Koza’s National Popular Vote (NPV) campaign, which launched in the wake of the 2000 election, takes a different approach.
It lobbies states to pass legislation pledging that they’ll award their electoral votes to the winner of the popular vote — something the Constitution allows. The legislation would only go into effect once states representing a majority of electoral votes — 270 — sign on. At that point, it would achieve its goal of ensuring that the candidate who gets more votes wins the presidency.
To date, 10 states plus the District of Columbia, representing 165 electoral votes, are on board. But none are "red" states.
“When we first started, Republicans bristled at the idea of discussing this,” since it seemed to imply that George W. Bush’s presidency was illegitimate, Koza said. As memories of 2000 faded, that attitude has softened a bit lately, with GOP-controlled chambers in Arizona and Oklahoma passing NPV. But Koza said Tuesday night’s results could once again stiffen GOP opposition to the idea,
Some conservatives see no need for reform. “Our system for electing a president has worked pretty well,” Brad Smith, a Republican former Federal Election Commissioner wrote in a 2008 paper opposing the NPV campaign. “There is no real case being made that it will work better if changed — only that it will look nicer if one subscribes to one particular vision of how democracies should work.”
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Others go further. Tara Ross, a conservative activist and the author of the 2004 book “Enlightened Democracy: The Case for the Electoral College,” thinks that the system ensures candidates seek votes not just from the most populous areas but from across the country as a whole. Without it, Ross has said, "we could see the end of presidential candidates who care about the needs and concerns of people in smaller states or outside of big cities."
Of course, the current system is worse in that regard, since it limits campaigning to a handful of swing states. But Ross argues that the Electoral College has another benefit: thwarting majority rule. “The Founders had no intention of creating a pure majority-rule democracy,” Ross has said. “In a pure democracy, bare majorities can easily tyrannize the rest of the country.”
It’s not clear how letting the president sometimes be the candidate who got fewer votes protects political minorities. And that’s not at all why the Founders created the Electoral College. Still, the idea did emerge out of a similar distrust of majoritarian democracy.
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The Founders didn’t think ordinary people — even the white male property owners who were the only ones allowed to vote — were informed or responsible enough to choose the president. (Letting them do so, said Virginia’s George Mason, would be like referring “a trial of colors to a blind man.”)
So they created a double buffer. State legislators would choose presidential electors, who would be “most enlightened and respectable citizens," as John Jay put it. Then, these elites would come together at an Electoral College and use their superior wisdom and intellect to decide on a president.
But electors soon began to run on party slates, pledging to rubber-stamp their party’s nominee rather than use their own independent judgment. And almost all states soon let voters rather than lawmakers choose the electors. In this way, the system became something close to democratic.
But because states don’t award their electoral votes proportionately to the popular vote, it still left us with the problem that arose again Tuesday — that the candidate who gets fewer votes to be elected.
In other words, the Electoral College has often fulfilled the Founders’ goal of acting as a check on the popular will — but not at all in the way they intended.
* Correction: This article originally identified Sanford Levinson as a professor at Harvard Law School. He is at the University of Texas Law School.