Debunking the Myth of the Popular Vote

by Peter Pavarini

Replacing the Electoral College

It’s hard to know what to make of the Democrats’ enthusiasm for replacing the Electoral College with a National Popular Vote in the selection of our Nation’s president and vice president. At first, the emotional calls[i] for repeal of Article II, Section 1 of the Constitution soon after the election of 2016 struck me as just “sour grape” attempts to delegitimize the unexpected presidency of Donald Trump. However, following the Democrats’ success re-taking the House in 2018, the clamor for repeal (or at least its evisceration by a series of state laws modeled upon the National Popular Vote compact[ii]) has only escalated. Currently, all but a handful[iii] of the declared candidates for the Democratic presidential nomination have publicly endorsed the idea of repeal or say they are at least open to it. Thus far, Republican counter-arguments have been weak and largely ineffective in shaping public opinion[iv] on this issue.

               I’ve studied the arguments for and against repeal of the Electoral College and have yet to be convinced that a National Popular Vote would, in the end, make us a more democratic, unified people.  While I do not agree with James Madison who warned against “the tyranny of the majority”, I believe Alexander Hamilton had it right when he described the Electoral College as a compromise needed to unify a republic of states with divergent interests.  As he said,

               “If the manner of it be not perfect, it is at least excellent.”[v]

While the passage of two centuries might seem like reason enough to reconsider how we elect our presidents, we should recognize that the process of amending the Constitution was purposely made difficult. Indeed, we last amended the cornerstone of our federal system of government in 1972 – before most Americans living today were born. Even then, earlier revisions like the Eighteenth Amendment (Prohibition) have not withstood the test of time.

What Is Democracy?

Like any political discussion these days, it is critical to begin with agreement on key terms.  Let’s start with the word “democracy”. Fifty years ago, any middle-school student would have known that democracy is a form of government in which the power is vested in the people. We were taught that in a democratic system people could exercise their power in various ways, including voting. How their votes were counted depended upon the specific form of government they chose. Today, with so many young people enthralled by the empty promises of socialism[vi], hybridized terms like “democratic socialism” have made a mockery of the democratic principles upon which our republic was formed.

               So, let’s review what we all should have learned in seventh grade. Democracy doesn’t mean that the candidate with the most votes always wins.  As the old adage goes, democracy is not two wolves and one sheep voting on what’s for dinner. In a democracy, the minority continues to have certain rights that are meant to temper those of the majority.  A democracy only requires that those qualified to vote (by virtue of age, place of residence, citizenship, etc.) have their votes counted fairly in accordance with a pre-determined set of rules. These rules could be winning by a simple majority or in some cases by a super-majority.  They could allow for a run-off when no candidate achieves a majority.  And, they could require winning a simple majority of “electors” (representatives of the state determined by the vote of its citizens) in the Electoral College, as our Constitution now provides.

Winning the Popular Vote

How often have we heard “but Hillary won the popular vote by almost 3 million votes”? That may be so, but she most certainly did not win a majority of all votes cast. In fact, no one did. She received only 48.18%. Trump received 46.09%, Gary Johnson got 3.28%, and Jill Stein got 1.07% of the vote. The remaining 1.38% was spread among a number of other candidates and write-ins. Therefore, putting it another way, almost 52% of the voters voted for someone other than the Democratic Party’s candidate. A plurality might seem like a popular mandate if you voted for Hillary Clinton in 2016, but as we know, in some states a candidate is required to garner at least a simple majority to win; otherwise, there must be a run-off.  Who knows what might have happened in 2016 had there been a run-off between only Clinton and Trump? What would the nearly 6% of voters who didn’t vote for either Clinton or Trump have done? Voted for one of them? Stayed home?

               One can reasonably argue that no president should be required to have the support of a majority of voters to be elected. A plurality should be enough. After all, 15 U.S. presidents have won office without a simple majority of the votes[vii]. But if that’s so, why have previous efforts to abolish the Electoral College[viii] seen the need to set a threshold of a 40% plurality for a candidate to win the national popular vote? Curiously, the current Democratic proposal to abolish the Electoral College[ix] does not require any floor. Arguably, were such a resolution enacted by both houses of Congress and received the requisite approval of three-quarters of the states, we could be electing our presidents as they do in some not-so-democratic countries that rely on unlikely coalitions to establish their leadership. Imagine what that would do for national unity in an era of hyper-partisanship.

               To put a finer point on this, consider the following statistics. Although Hillary Clinton won about 48% of the popular vote nationally in 2016, she was highly unpopular in an overwhelming majority of jurisdictions across the country. Yes, she won the electoral votes of 20 states plus the District of Columbia, but she lost to Trump in 30 states. Likewise, she won in 487 counties, but lost in 2,626 others. She didn’t even do that well in all the states she won. In 6 of them, she failed to get a simple majority, which again means more people voted against her than for her in those places. To be fair, Trump also won 6 of his 30 states with only a plurality. But the Electoral College vote count roughly bears this out, and that’s why he became president.

               What this says about using a National Popular Vote in place of the Electoral College should be clear to anyone who has taken some time to study the history of American presidential elections. A candidate like Hillary Clinton can do extremely well in just one state (California) but lose a plurality contest in the other 49 states. Had California had been a separate country in 2016, Trump would have beat Clinton by approximately 1.4 million votes (58,501,015 to 57,099,728) and won the White House in a National Popular Vote. This is an example of one of the problems the Founders set out to address when they adopted the Electoral College system. It also explains why the loudest cries for abolishing that system seem to come from California.   

The Flaws in a National Popular Vote System

This is much more than a numbers game. If the proponents of a National Popular Vote were really concerned about “electoral justice”, as they say, they would seriously consider the following flaws in such a system:

• There is little doubt that a National Popular Vote election would force candidates to focus their attention on places that can produce the greatest plurality of votes. A lot of first and second-place finishes in a few key urban areas would eliminate the need for them to campaign in any rural areas. We know that even under our current Electoral College system, a disproportionate amount of attention is paid to the battleground states, to the exclusion of all others – both blue and red.[x] Some believe the number of battleground states will actually shrink in 2020.[xi]

• The states that get the most attention from candidates in a National Popular Vote are also likely to become the most susceptible to voting irregularities. No matter how many voters in California were actually ineligible to vote for president in 2016 – even if that number was zero – you can’t be blamed for wondering why 23,108 individuals who claimed a California residence had birthdates older than the oldest recognized resident of that state (age 110). Of those, 16,780 voted that year![xii]  What remarkable longevity!  Perhaps this is partly why California agreed to purge 1.5 million voter registrations as part of its settlement with Judicial Watch.[xiii]

• Since the reality of Russian meddling in our 2016 elections has now been acknowledged by just about everyone except the Russians, shouldn’t we be concerned about nationalizing any election before we have made the voting process tamper-proof? Does anyone really believe the federal government can pull off a national election without using electronic ballots? It’s fine and well to say there will also be paper back-ups, but let’s get real. In an age of digitalized communications, you can be sure voters will be urged if not required to cast their votes through a national website (imagine the cybersecurity issues that will present). And, let’s not forgot how poorly the ObamaCare roll-out was handled. Perhaps the strongest argument for letting the states run their own elections is to present hackers with a challenge 50 times bigger. 

       Under our constitutional system of government, we elect a national president – not one meant to represent any one particular state or group of people. In as diverse and dynamic a country as ours, there’s no perfect way to choose a single person who will be acceptable to everyone. If we could, I would worry whether we have, in fact, crossed the line from being a democratic republic to some form of despotic regime.

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[i] In a November 15, 2016 press release, former U.S. Senator Barbara Boxer called the Electoral College an “outdated, undemocratic system that does not reflect our modern society.”

[ii] See www.nationalpopularvote.com

[iii] John Delaney, Andrew Yang, John Hickenlooper

[iv] Public Religion Research Institute found that 65% of Americans say that presidential elections should be decided by a national popular vote, Erin Corbett, “Why Democrats Want to Abolish the Electoral College – and Republicans Want to Keep It”, Fortune, April 2, 2019.

[v] N. Benac (AP), “Founding Fathers Distrusted Popular Vote to Pick a President”, Business Insider, November 11, 2016.

[vi] Four out of ten young people surveyed think socialism mostly means being nice to one another.  See T. Mecia, “Socialism is Popular Only Because People Don’t Know What It Is”, Weekly Standard, October 31, 2018.

[vii] John Quincy Adams, James K. Polk, Zachary Taylor, James Buchanan, Abraham Lincoln, Rutherford B. Hayes, James A. Garfield, Grover Cleveland (twice), Benjamin Harrison, Woodrow Wilson (twice), Harry S. Truman, John F. Kennedy, Richard M. Nixon, William J. Clinton (twice), George W. Bush.

[viii] The closest the U.S. has come to abolishing the Electoral College happened during the 91^st Congress (1969-1971). The Bayh-Celler Amendment would have adopted a two-round system similar to the French presidential elections with the top two slates competing in a run-off but only if they had each received a plurality of 40%.  Although the amendment passed the House, it was filibustered in the Senate where it died.

[ix] H.J. Res. 7 at www.congress.gov/bill/116th-congress/house-joint-resolution/7/text

[x] In a 2016 Time Magazine article, Penn State Professor Robert Speel said that, during the last two months of the campaign, 53% of the campaigning done by Trump, Clinton, Pence and Kaine took place in just 4 states (Florida, Pennsylvania, North Carolina and Ohio).  During that time, 87% of the candidates’ in-person effort was expended in just 12 states, and 27 states were ignored completely. See L. Zhou, “Senate Democrats Introduce a Constitutional Amendment to Abolish the Electoral College”, Vox, April 3, 2019.

[xi] Dr. John Koza, chair of the National Popular Vote, in an interview with Fortune Magazine.

[xii] L. Barnathan, “Casting Controversy Over Voter Roll Credibility”, Santa Clara Gazette, November 1, 2018.

[xiii] S. Crabtree, “California to Purge 1.5 Million Inactive Voter Registrations, Free Beacon, January 6, 2019.