You have never voted for president and probably never will. Only 538 people in the United States will acquire the right to vote for president this year, and you’re not one of them.
Instead, when you “vote for president,” you actually vote for electors who are tasked with representing the majority vote in your state. These electors form the Electoral College. They, not the American people as a whole, choose the president. In 1876, 1888, and 2000, the winning candidate lost the popular vote but won the Electoral College.
In 21 states, electors have the legal right to vote for whomever they choose. In the other states, the law requires electors to vote for their pledged candidate, but such laws have never been enforced. For instance, Republican elector Roger MacBride wasn’t prosecuted for giving his electoral vote to Libertarian John Hospers in 1972. If a large number of electors refused to vote as pledged, this might cause an uproar, but it wouldn’t be a constitutional crisis.
In principle, a presidential candidate could win 100% of the popular vote and still lose the election. There are least two ways that’s possible. First, faithless electors could reverse the popular vote. Second, many state legislators could directly appoint their own electors instead of allowing voters to choose electors. The U.S. constitution allows states to decide how electors are selected; there’s no requirement that you get any say this November.
The Electoral College is an anti-democratic institution. From the perspective of the writers of the U.S. Constitution, that’s a feature, not a bug.
This year, some Republican electors in Georgia and Texas have threatened they won’t support Trump, even if Trump wins their state. For instance, former Georgian elector Baoky Vu says Trump “…lacks the judgment, temperament and gravitas to lead this nation.” (Vu resigned under pressure after making that statement.)
The Electoral College is an anti-democratic institution. From the perspective of the writers of the U.S. Constitution, that’s a feature, not a bug. The entire point of the Electoral College is to serve as a check on democratic voting. The founders didn’t trust the people to choose the most powerful person in the country (and now the world).
According to biographer Greg Weiner, James Madison — Constitutional designer, Federalist Papers author, and former president — worried that democratic polities were prone to fits of passion. They might be overcome by prejudice and swayed by populist demagogues. Madison wanted a series of checks and balances and a multistep process for creating laws and choosing leaders, not just to force factions to compromise, but to slow down the decision-making process with the hope that cool heads will prevail.
The founders generally saw what we now call democracy (they used “democracy” as a derogatory term) as an instrument, not an end in itself. In their view, the purpose of government was to protect rights and promote justice. They denied that what counts as our rights or what counts as justice was decided by majority fiat. Rather, they thought republican democracy with checks on majority rule would do a better job realizing procedure-independent truth about what justice requires. They denied that the majority had any inherent right to rule or impose its will on the minority.
To modern ears, the Electoral College sounds like a mockery of democracy. The people speak, but the Electoral College has the right to silent their voices. That’s right, but that’s the point. But it much the same way, the Supreme Court retains the right to veto unconstitutional democratic legislation, while the U.S. Congress has the power to impeach and remove a popular president.
The founders worried that democratic electorates tend to be ignorant and tend to be easily swayed by passion rather than reason. When they were writing, they didn’t have the data to back up some concerns. But the results are in, and it looks like the founders were right. Some 60 years of research on voters finds that some people know a great deal, some people know nothing, and some know less than nothing (that is, they make systematic mistakes about basic facts).
One major objection to “faithless electors” is that electors typically have promised their party they will support their party’s candidate. A faithless elector thus breaks his or her promise. In most states, that is not illegal, but one might think it’s at least immoral.
However, unless you’re a moral absolutist, you probably think that in some cases, it’s permissible to lie or break a promise. Consider the famous “murderer at the door” thought experiment. Suppose you’re hiding someone in your attic, when two would-be murderers knock and ask if you’re hiding their intended victim. It’s doubtful even George Washington would say, “I cannot tell a lie; she’s upstairs.”
Or, suppose you are a soldier or corporate employee who has agreed to follow orders, but your boss tells you to do something immoral, such as shoot innocent civilians or dump toxic chemicals in a lake. It seems clear that you should not keep your promise to follow orders; you should instead break your word.
Here’s what happens if neither Clinton nor Trump win on Tuesday night
Similar remarks apply to electors. Electors might have a presumptive duty to represent their states, and in most cases, that means doing what the state majority wants rather than what they personally judge is best. But in some cases, the majority’s decision is deeply unjust. Just as parents owe it to their children to pick a minimally decent baby sitter, so the majority owes it to the rest of us to pick a minimally decent leader. If the majority fails to do so—if they support the equivalent of a Chavez or a Hitler (both of whom came to power through democratic decisions)—electors haven’t only the right, but the duty to stop them.
I take no stance on whether Donald Trump is beyond the pale here. He’s not the first candidate without policy experience or to use inflammatory rhetoric and lob classless insults as his opponents. Nevertheless, we should be glad the Electoral College is in place. Given how much power the U.S. president has, it’s comforting to know that if voters make a truly horrific choice come November, our elected representatives have the power to rescue us from their mistakes.
Also read:Quit sneering: 3 reasons why Trump voters won’t disappear after November
Jason Brennan is the Robert J. and Elizabeth Flanagan Family Chair and Associate Professor of Strategy, Economics, Ethics, and Public Policy at the McDonough School of Business at Georgetown University. He is the author of the new book “Against Democracy.” Follow him on Twitter @jasonfbrennan
View more information: https://www.marketwatch.com/story/the-electoral-college-is-anti-democraticand-thats-a-good-thing-2016-09-12