Reprinted with permission from the American Bar Association, The Journal of the Section of Litigation.

For the second time in 16 years, the Electoral College last fall produced an election victory for a president who did not win the popular vote. Those unhappy with the outcome—the Democratic Party, this time as last—have begun calls to amend this portion of the Constitution, calling it antiquated and undemocratic. They have not always thought so. During the 2004 campaign, John Kerry looked like he might capture Ohio in the Electoral College vote, which would have handed him the election with, once again, a minority of the popular vote. Then it was the Republicans who cried foul, while the Democrats looked to the Electoral College for salvation. Though Kerry came close, it didn't happen. But the point should be clear that political voices tend to raise themselves on one side of the matter or the other depending on whose ox is gored, which is no way to decide the fate of this venerable feature of our most sacred document.

Even less sensible are the comments sometimes heard that Presidents Bush and Trump were or are not legitimate presidents because they didn't really win. Perhaps this is a reference to the "hanging chad" controversy in 2000 or Russian influence in 2016. Whatever the merits of these other criticisms, the argument is meritless if it refers to the role of the Electoral College. The Constitution prescribes how a president is to be elected; both presidents met that prescription. To say that these presidents failed to win the popular vote is to say nothing at all in terms of their legitimacy. With equal (non)sense, one could say that no Supreme Court justice is legitimate either, as none was elected by popular vote. The Constitution describes how a person becomes a Supreme Court justice. Each of the members joined the Court in that fashion. Their having done so without a popular vote is no comment on their legitimacy, even if some would prefer that the process happen differently.

Nor are these the only errors in good thinking about the Electoral College these days. For example, it is often said that it has elected a president with less than a majority of the vote only four times, the two recent cases and the elections of 1876 and 1888. In the latter two cases, it again produced Republican presidents (Hayes and Harrison) in the face of Democratic popular majorities. But the election of 1876, just like the election of 2000, featured an oddball controversy regarding who won which states. Hayes initially seemed the loser but later beat Tilden after a special commission decided the outcome in Louisiana, South Carolina, Oregon, and Florida in his favor. Hayes needed all of them to win the Electoral College, which he did by a score of 185 to 184. So only 1888 was directly determined by the Electoral College itself, in the face of a different popular majority.

Pluralities of the Vote

More important, the Electoral College has played a role on far more numerous occasions than may first appear. Take 1824,
for example. Andrew Jackson won a plurality (42.34 percent) of the popular vote, not to mention a plurality of the Electoral College, both of which were divided among four candidates: Jackson, John Quincy Adams, Henry Clay, and William Crawford. But no candidate was successful in gaining a majority in either tally. As a result, the matter was decided by the House of Representatives, where, Jackson later claimed, John Quincy Adams and Henry Clay made a "corrupt bargain" to make Quincy Adams president. (Jackson's claims later helped elect him outright in 1828.) So the Electoral College didn't elect the president directly, but the need to win it helped determine the outcome, and it did so for a candidate who got less than a third of the popular vote.

Of even greater interest, perhaps, is 1860. There Lincoln won a plurality of the popular vote, with about 40 percent of the ballots cast. But he won the Electoral College outright, and decisively. Without the Electoral College, there would have been no clear winner. Perhaps Lincoln would have won had the matter gone into the House. But remember, it goes into the House only if there is no clear winner in the Electoral College. If the matter had been decided by a majority of the popular vote, a runoff between the top two candidates, Lincoln and Douglas, would have been needed. This would be odd from an Electoral College standpoint, as Douglas got the least number of Electoral College votes (12) among the three losers. More important, it seems almost certain Douglas would have won a popular vote runoff, as he could attract some of the Bell and Breckenridge voters, many of whom were Southerners (as the Electoral College tally proved) who would not have turned to Lincoln. Without the Electoral College, Lincoln might not have been our 16th president, nor the leader who steered us through the Civil War, if there even were one under Douglas.

There are other such examples in our history. In the election of 1912, for example, Woodrow Wilson scored a lopsided Electoral College win over a Republican Party split between Teddy Roosevelt's Bull Moose Party and William Taft's Republican regulars. Wilson got 435 out of a total of 523 Electoral College votes. But he got only 45 percent of the popular vote, the other 55 percent voting for one of the two erstwhile Republicans.

Nor is this all. Looking backward underestimates how the institution itself may have shaped the outcome. Without question, some candidates run to win in the Electoral College. They might have changed their entire campaign strategy had the popular vote been the deciding factor. Unfortunately, neither the criticisms nor the support voiced against and for the Electoral College has taken any of these problems into consideration.

The Lincoln example shows an even greater defect in the ordinary arguments against the Electoral College. They some-times fail to consider what might take its place. If a popular vote, what is the mechanism for dealing with non-majority pluralities? A runoff? A vote in the House? By states, as the Constitution now provides? Some other means? These questions are critical, and all the possible answers have enormous, and sometimes troubling, ramifications. For example, consider how a pure popular vote, with a runoff, would affect how many people run. One great benefit of earning a party's nomination is that a party organization allows one to mass a campaign in enough states to win the Electoral College. Dispense with the latter and you might find that large numbers of candidates would dispense with the parties too, appealing over party leaders directly to the electorate. The 2016 election already had a species of this, which doing away with the Electoral College would seem only to exacerbate.

Origins of the Electoral College

The failure to consider the alternatives underscores the failure to understand how and why the Electoral College operates as it does in the first place, which is where any debate about the institution ought to begin. Here again, the discussion has led to a questionable attack on the Electoral College's legitimacy. It is often said that the Electoral College does not operate as it was intended to do anyway, so why preserve it? To be sure, the idea of a group of wise, or at least more prudent, citizens sitting together to choose the best candidate for the presidency is not a current feature of the Electoral College. This was perhaps underscored by the failure of some die-hard Hillary Clinton supporters to get better-informed Electoral College voters to choose some¬one other than Donald Trump. The effort really got nowhere, and the voters almost completely aligned with their state vote, even when not required by law.

But the wise elector theory is only one aspect of the Electoral College's origins. The Electoral College actually arose toward the end of the Constitutional Convention as a result of a complex resolution of a thicket of issues. Most of the summer of 1787 had been spent by the framers trying to figure out how to structure Congress, which, as its place in Article I of the Constitution suggests, was viewed as the most important element of a representative government. Article III posed little real controversy, as everyone seemed to understand how the judiciary should be structured. Once the Supremacy Clause was agreed upon as a substitute for Madison's desire for a congressional veto on state legislation, there was very little to do there. But the presidency was a bit more daunting. Many of the members were deeply suspicious of a powerful executive, having, of course, fought a long and difficult war designed, according to the Declaration of Independence, to rid themselves of a king.

Five different factors went into decisions about the presidency: (1) how was the president to be elected; (2) for how long; (3) could the president run for more than one term; (4) what powers would a president have; and (5) how might a president be removed? These questions were interrelated. For example, many thought the president should be elected by Congress. But there were grave concerns about the president and a congressional majority colluding. This led to a preference for a president being restricted to a single term, with perhaps a slightly longer tenure. It simultaneously had an impact on what powers the president might have. By contrast, a president elected independently might serve for a shorter term with greater powders, because the lure of reelection would be a check on what the president might do.

In the end, it was agreed that the president ought not to be elected by Congress or a part thereof. But then, by whom? What was the independent means to be? There could be a popular election, of course, but the framers were deeply worried about demagoguery, among other things. What they came up with instead—sage electors aside—was to filter the vote in a manner similar to representation in Congress. Congress itself was elected in two different ways, one by popular vote of the people in districts within states and one by the states themselves, presumptively by their state legislatures. The Electoral College was devised to filter the popular vote, whether through sage decision makers or otherwise, in a manner combining aspects of both. And, importantly, most of the framers believed that this Electoral College would not frequently result in a majority for a single candidate, so that the real means of electing the president would be through the House of Representatives, where the president would be elected by a vote of the states, each state delegation having one vote.

It is therefore literally true that the Electoral College is no more unrepresentative or undemocratic than Congress itself. To criticize the Electoral College for the way in which it operates as undemocratic is to raise the same question with respect to the Senate. Why does Vermont with a population of 700,000 elect two Senators, whereas Illinois with 13 million persons has the same number of representatives in the Senate? And given how important the Senate is for many decisions in our Constitution, it behooves those who oppose the Electoral College to say why the Senate electoral process is OK but similarly unusual provisions for the presidency are unacceptable or wrong.

Electoral College Changes

At the other end of the analysis, it is some-times noted that aspects of the Electoral College idea have already been monkeyed with. Congress in 1946 proposed our existing restriction on presidential terms to two, an ill-tempered response to the recently deceased Franklin Roosevelt's violation of long-standing precedent that no president would serve longer than Washington. More important, presidential powers have increased exponentially. It is difficult to think through whether, given the changes made with respect to the other elements of the compromise, the Electoral College should now be changed too.

Even more fundamentally, the existing approach reveals that the framers believed the states should have an important role in electing the president. The framers intentionally rejected the idea that presidents should be elected on a "one man, one vote" principle. Why? For some, the states were seen as the best representatives of the people. Another factor had to do with the concerns expressed by James Madison in Federalist No.10 about faction. According to Madison, factions was the greatest threat to republican institutions, and it could be prevented only by expanding the territory broadly so that faction would be watered down. One way to do so was to make certain, in this case, that a successful president carried states from across the country, which arguably the Electoral College requires.

Remember that for the framers, faction was not just a matter of ethnic or racial  identity, as it sometimes is for us, It derived from opinion, not simply heritage. It is a striking element of the 2016 election that the support for Hillary Clinton bore more resemblance to a faction, as the framers understood it—in this case, a large group of urban voters, of various races and ethnicities, with largely liberal or progressive views—than the ragtag coalition of conservatives, evangelicals, Reagan Democrats, and others to whom Donald Trump somehow appealed.

In the end, none of the foregoing questions is sufficient to settle the controversy over the Electoral College. It may have worked better than may first appear, and it may have served principles that have some sense. It may even beat the obvious alternatives. But there is still a sense that somehow 2016 was a watershed moment. The Electoral College did not eliminate demagoguery or maintain the strength of the parties or deliver a result that the country as a whole seems willing to unite behind. Has this institution now run its course? Do modern media, the lessening differences among the states, or terribly flawed candidates point to a better way? If you think you've got a better way, let's hear it. But don't make a decision based on who was elected. And let's be sure it will guarantee better results.

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