Nancy Chi Cantalupo and Judith E. Koons, Barry University School of Law
No matter how one interprets the proper purposes and history of the Electoral College, if the electors who make up the 2016 Electoral College want to vote based on either Constitutional or democratic principles—and not just political expediency or blind obedience—they must vote for Hillary Clinton to be President of the United States. If the Electoral College instead proceeds as it has in the modern era, it will elect Donald Trump, who represents, at best, a minority of voters.
Trump lost the popular vote to Clinton by over 2.8 million as of early December, but because of the way the Electoral College now works, 80,000 votes in three states were decisive. All three of these states have faced demands for a recount, an effort funded by nearly 140,000 donors skeptical about the integrity of the original vote count at least in part due to significant, credible evidence that a hostile foreign government engaged in cyberattacks to sway the election in favor of Trump.
A portion of this minority has already proven itself tyrannical in a very real way. In the few weeks since the election was “called” on November 9th, nearly 900 hate crimes have been directed at immigrants, members of the LGBT community, people of color, Muslims, and women. Over 180 of these crimes have taken place in K-12 schools.
But the hateful threats and violence perpetrated by this minority of the minority are not the only way an Electoral College vote for Trump would enable a “tyranny of the minority.”
Scholars of U.S. history and slavery make a convincing argument that the Electoral College was created out of that tyranny. They point to evidence that the Electoral College was not about principles but was crafted as a political compromise between non-slave-holding and slave-holding states. The original Constitution allowed the slave-holding states to increase their power and representation in the federal government by inflating their population through “counting” slaves—even though they were not permitted to vote—as three-fifths of a person. This compromise allowed a minority of voters to keep the most tyrannical institution in our nation’s history in place for almost two more centuries.
Voting for Trump because of the Electoral College’s unprincipled Constitutional protection of what Marian Wright Edelman calls a national “birth defect” would deliberately ignore this history of tyranny. However, even if the shameful slavery compromise is insufficient inducement to reject such a vote, an elector would have to accept not one but two myths in order to vote for Trump: that the Electoral College was created to protect the populations of small states (Myth #1) by requiring electors to vote for the candidate who won the state’s popular vote (Myth #2). However, the Constitution does not establish rules for how electors must vote—the extent to which electors are directed to vote for a particular candidate is governed by state law. Therefore, 2016 electors may vote in the manner that was intended by the framers of the Constitution—to safeguard the office of the President from dangerous foreign governments and unfit candidates—without running afoul of the Constitution itself.
Electors who wish to vote in a principled manner but who have acknowledged the absence of Constitutional mandates may instead vote in favor of democratic principles. Yet these also require voting for Clinton. The Electoral College has long been criticized for the way in which it dilutes the votes of some voters and magnifies the votes of others. As Harvard law professor Lawrence Lessig and several other lawyers have pointed out, under the U.S. Supreme Court’s decision in Bush v. Gore, the current combination of the Electoral College and winner-take-all state election laws treats voters unequally. For instance, one calculation shows that the vote of one person in Wyoming is worth the votes of 4.4 Floridians. Such inequality violates a bedrock principle of our democracy – one person, one vote.
In short, for the 2016 electors to vote in a principled manner, whether those principles are based on the Constitution or on a commitment to democracy, they must vote for Clinton. Any electors who nevertheless vote for Trump must take responsibility for ratifying a tyranny of the minority that goes against the ideals on which our nation was founded as well as the will of the majority of Americans who have favored electing the President by national popular vote at least since 1967.
Nancy Chi Cantalupo is an Assistant Professor of Law at Barry University School of Law, began volunteering with Election Protection as soon as she became a lawyer, and has served thousands of pro bono hours protecting election integrity and the right to vote.
Judith E. Koons is Professor of Law at Barry University School of Law and began working on voter protection and election integrity in Florida after the 2000 election.