The Electoral College: Legal but not Legitimate

Resisting Learned Helplessness

One reaction to my last post, “Kamala Harris Will Win the Popular Vote,” has been some variation of a smug suggestion that I take a civics class because the next president will be decided by the Electoral College. Another has been a bit less condescending, something like, “Sure, but what matters is the Electoral College.” 

I have a respectful suggestion for anyone who had those kinds of reactions (other than “read the post”). I ask you to consider what it means that we collectively shrug off such an anti-democratic structure as “just the way it is.”   

Because when we do that, we align ourselves with those who in their times scoffed at the abolitionists, the Radical Republicans, the suffragists, the modern civil rights movement, and those who called for the direct election of senators and “one person, one vote” in legislative districts. All of these people had the courage in their own time to call out the ways in which American elections were legal but not legitimate, either by universal standards of democracy or even by the Declaration of Independence’s central claim – that governments depend on the consent of the governed, legitimately ascertained. 

Legal but not Legitimate

All democracies have to be prepared to deal with the question of what to do when something may be legal, but is plainly not legitimate, as when anti-democratic actors compete in democratic elections. Emerging out of the rubble of World War II, the leaders of the European democracies were freshly aware of the catastrophic damage done by fascist and totalitarian communist regimes that came to power through putatively democratic processes, and fashioned constitutions and laws to safeguard against anti-democratic hijacking. 

We have confronted the same challenge twice. In the aftermath of the War of Rebellion (aka the Civil War), Congress enacted several measures designed to safeguard democratic freedoms for all, including the Civil Rights Act of 1866, Section 3 of the 14th Amendment (the Insurrection Clause), and the Enforcement Acts (1870 - 1871). And nearly a century later, in response to Jim Crow and racist terrorism that effectively prevented African Americans from voting, Congress passed the Voting Rights Act (1965).¹

Unlike in Europe, however, America’s anti-democratic faction maintained enough social and political power to thwart or undermine both of these efforts. The MAGA faction, now firmly in control of the Republican Party, as well as the state governments in which half of America lives, as well as the Supreme Court, following in the footsteps of its Jim Crow and Confederate predecessors, deploys “states’ rights” to exempt its antidemocratic actions from scrutiny, and further whitewashes these actions’ fundamental illegitimacy through its control of the Supreme Court. 

When we treat all of this as “just the way it is,” we revert to the kind of learned helplessness that Martin Luther King, Jr. warned against in his Letter from a Birmingham Jail: 

“We should never forget that everything Adolf Hitler did in Germany was ‘legal’ and everything the Hungarian freedom fighters did in Hungary was ‘illegal.’ It was ‘illegal’ to aid and comfort a Jew in Hitler’s Germany.”

Today, we have lost the clarity we had 57 years ago when the VRA passed. Because we’ve given up on expecting our most important national institutions to do what is right, and because we’ve given up on expecting active democratic citizenship from ourselves and each other, our “democracy” has shriveled to the point that the outcome of partisan bloodsport now passes for the consent of the governed. 

In America, this century of accelerating democratic crisis has been supercharged by the exploitation of the anti-democratic features of our Constitution and traditions. Consider that: 

• In two of the last six presidential elections (one third!) the results of the Electoral College overturned the popular vote, and in one instance (2000), that result depended not only on the Electoral College but on five partisan Supreme Court justices swooping in to prevent all the ballots in Florida from being counted. 

• Five of the six Republicans on the Supreme Court were confirmed by senators representing less than half of the US population.

• Republicans have held the Senate majority for five of the last twelve Congresses despite representing a majority of the US population only once in that span.

Minority Rule

The typical response to objections about the anti-majoritarian features of the Constitution, or our present system more generally, hearken back to the original reasoning for checks and balances. Those features were meant to prevent the rule of the mob, or frequent lurches that disrupt the need of citizens to have a set of consistent laws that they can rely on. That’s captured in the (likely apocryphal) quote attributed to George Washington that “We pour legislation into the senatorial saucer to cool it.”

With that in mind, let’s begin by looking at an idea that most readily agree to, which is the need for the system to protect the rights of those in minority groups. I think we would all agree, for example, that preventing any group of people from voting, or any other right generally enjoyed, is indefensible. Unfortunately, that foundational precept has been rhetorically hijacked to contend that the system must protect minority interests. 

Thus, especially over the last twenty years, our system has proved less the sturdy bulwark on behalf of the rights of minority groups and more the driving force on behalf of the very much minority interests of plutocrats and theocrats than at any time since the end of Reconstruction.

Let’s look at just how much this is the case, as reflected in our foundational institutions. 

The Senate

Let’s begin with the “saucer,” which, if it was meant to be chilling in 1789, has become positively cryogenic since. 

As the next graph shows, Republicans have held Senate majorities in five of the last twelve Congresses, despite representing a majority of the population only once, in the 109th Congress (2005-2006).² 

Let’s consider two “best case” scenarios for 2025, based on a 50-50 Senate in 2025, in which either Harris or Trump is president.³ The difference between the red and blue bars visually represents the democracy gap in the US Senate. Note that if Harris is president, the 50 senators needed to pass a continuing resolution or confirm judges will represent nearly as much of the population as Senate rules envisioned would constitute the supermajority necessary to break a filibuster – while if Trump is president, he will be able to do the same with senators who represent a minority of the population – just barely enough to block cloture, if they represented the same proportion of senators. 

The Supreme Court

Since the founding, 116 jurists have been confirmed to the Supreme Court. Only five were confirmed by senators representing less than half of the US population – Clarence Thomas, Sam Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The following graph shows how far off from representing democratic legitimacy the present Roberts Court is from even the SCOTUS that delivered Bush vs Gore. And, of course, depending on how you measure it, either three or five of them were nominated by presidents who did not win a majority of the popular vote themselves.⁴ 

For more on how the plutotheocratic coalition behind the Federalist Society captured the Court and became the de facto legislative branch of government, see “Breaking the Law: Trump Is the Means, Not the End” and “To the Supreme Court, the 20th Century Was Wrongly Decided.”  

This Is Not Who We Are

Barack Obama and Kamala Harris have both talked with patriotic pride about how theirs is a “story that could only be written in America.” 

But, thanks to the Electoral College, so too is Donald Trump’s a story that could only be written in America. Absent the Electoral College, he could not have become president, nor could he persist for so long as such an asphyxiating, toxic cloud over all of our politics. Indeed, Trump stands the original justification for the Electoral College on its head. The founders felt an Electoral College representing the most responsible Americans might be needed someday as a check against popular passions which might someday elect an antidemocratic demagogue. In reality, it has done the opposite – installing an antidemocratic demagogue the people rejected.

But it’s even worse than that. Reimagine November 3rd, 2020, without an Electoral College. By the next day, Biden would have been seen as the winner, ahead by millions of votes. None of what followed would have happened, as there would have been no serious ways for Trump to have questioned the outcome in any other than the most outlandish terms. No bullying calls to Brad Raffenperger to find 11,780 votes; no Stop the Steal rally, no riot on the Capitol grounds, because that ministerial procedure would not even be a thing. 

In other words, the Electoral College process was the precondition for January 6th because of how long it delays the peaceful transfer of power, and because of how many democratically frivolous opportunities it offers bad faith losers to corrode public confidence in the election and even organize violent resistance. 

Indeed, whatever the outcome on November 5th, 2024 the fact that Harris will all but inevitably win the popular vote by a comfortable margin – and yet it will still be as “close” as it was in 2016 and 2020 in key states – all but guarantees a rerun of 2020’s post election confusion and crisis. 

We spend an exhausting amount of time and effort asking what it says about the American people that Donald Trump became president and could be again, searching for answers almost exclusively in the individual psychology, morality, or life circumstances of the individual people who vote for him, when we should be asking what it says about the American system that continues to produce these outcomes. Especially when for the last twenty years or more the American people routinely insist that the system is not serving them and that they have no confidence in it in general, and the Electoral College in particular. 

Notably, dissatisfaction with the Electoral College was bipartisan until 2016, when Republican voters realized its “benefits.” Now, a bit more than 70 percent of Democrats and Independents want to “amend the Constitution to base the presidential winner on the popular vote.”

But, as long as systematic reform is so easily swatted away merely by embarrassing those who would wish otherwise as being too naive or insufficiently “realistic,” we’ll bounce around the room like a Roomba, with serial diversions like “Democrats need a better message.”

This is as true now as it was in the 1960’s when James Baldwin wrote:

“Not everything that is faced can be changed, but nothing can be changed until it is faced.” 

Which is why I would rather count myself with those who, in their times, had to acknowledge that enslavement, the disenfranchisement of women, the indirect election of senators, egregious gerrymandering, and Jim Crow were legal – but never conceded that they were legitimate. 

Weekend Reading is edited by Emily Crockett, with research assistance by Andrea Evans and Thomas Mande.

1. Section 5 of the Voting Rights Act required covered jurisdictions to preclear changes to their voting laws, even if those changes were to be made by elected representatives. Section 5 was essential because we understood that without preclearance, the racist faction legally in control of the machinery of the state in those jurisdictions would continue to use their illegitimate authority to deny Black people their citizenship rights. We understood the need to take aggressive, facially anti-democratic actions to prevent “democratically” elected state governments from enacting new laws or rules to continue to disenfranchise African Americans. In other words, we rejected that faction’s claim to the benefit of the doubt that it was acting in democratic good faith. Moreover, it did not occur to anyone at the time to consider the enactment of the Voting Rights Act as intended to give one party or the other an advantage in future elections. 

2. Percent of the population is computed as the share of each Republican senator's state of the United States population. For example, the population of Texas is 9.2 percent of the US population. Since both Texas senators are Republicans that would count as 9.2 percent in this calculation. If only one senator was Republican, that would count as 4.6 percent of the population. Using this method, if states were of equal population, the number of senators would equal the percent of the US population. 

3. By “best case” I mean that Democrats hold their current seats except West Virginia. In order to compute the percentages of the population represented by senators, the procedure is to begin with the smallest states until the number of indicated votes are reached. 

4. Gorsuch, Kavanaugh and Coney Barrett were nominated by Trump, who lost the popular vote. Roberts and Alito were nominated by George W Bush who reached the White House after losing the popular vote in 2000, but who won the popular vote in 2004, the term in which he nominated Roberts and Alito.