The Electoral College and you

Some of you weren’t paying attention in history class, so read this carefully. When originally created, the House of Representatives was set at 30,000 citizens per House member. The House kept growing and growing, until 1911 when Congress set the House size at 435. Since then, those 435 House seats have been apportioned based on the nation’s population as decided by the census. Interestingly, this is a federal law and not a constitutional amendment, so Congress could increase or decrease their number at any time.

Now to the Electoral College. The question all the Democrats are asking this week? “Since Hillary won the majority of the vote, why isn’t she the president-elect?” (Once all the votes are counted, I don’t think she’ll have the most votes anyway. CNN agrees with me, but time will tell.)

But for now, presume her current popular vote lead holds. The uneducated scream, “Hillary won and should be the president!” But, she didn’t win the majority of the votes cast! As of Thursday afternoon, she had more votes than Trump, by approximately .2 percent (not 1 percent, but 2/10 of 1 percent) of the total votes cast. But again, she did not have 50 percent+1 of the total vote either, not even close. She had about 47.7 percent of the vote, while The Donald had 47.5 percent of the vote. So why isn’t she the president-elect? Because the Founding Fathers were not willing to go the straight democracy route (mob rule) and instead did the democratic republic method.

After careful deliberations, they created the Electoral College, with the idea of a mixture of state-based (Senate) and population-based (House) bodies electing the president. Remember, before the 17th Amendment, senators were originally elected by each state’s legislative body, not by popular vote. The idea was that the Senate, with six year terms and legislative appointments, wouldn’t be as “knee-jerk” as the House with two year terms and public votes, and between the two bodies you’d have some moderation in the passage of laws. So, the Electoral College consists of 100 senators and 435 House members, plus three for Washington, D.C. Each state gets two electors for having two senators, and then one additional vote for each House member. Seven states have one House member and it goes up from there based on population to California’s 53 House members. That total is 538. So, winning 270 “electors” means you got the majority of the vote of the Electoral College.

But, isn’t that an antiquated system? Nope, actually it is brilliant. Let me point out, no candidate in history has had over 50 percent of the popular vote and not been elected president, but it could happen I guess. The Electoral College comes into play when you have more than two candidates, which is always the case today. Let’s say you did not have the Electoral College and you had six viable candidates for president. Let’s say that they split the vote pretty evenly. If you had popular vote elections, you could end up with a president that only 17 percent of the public supports, meaning 83 percent of Americans did not vote for him or her. Unlikely you say? Look to our friends in Europe, they have factions within factions as they try to piece together government coalitions.

The other thing that the Electoral College does is spread out the election. Were you simply trying to win the popular vote, you’d go to California, Texas, New York, Florida and a few more. You’d promise them free cookies and milk at the expense of the other states, so that they vote for you. You could win the popular vote by overwhelmingly winning just 10 states. The other 40 states get left with the bill for the free cookies and milk. With the Electoral College, New Hampshire (41st in population) mattered the day before the election. While I don’t live in New Hampshire, I appreciate that the Electoral College made it relevant for an election cycle.

Finally, there is the “my vote doesn’t matter” complaint. If I live in Georgia and vote Democrat (a problem that has never grieved me), my vote doesn’t matter since Georgia is a red state. But, in a sense, if you vote for the losing side, did your vote matter? If being on the winning side is the only reason you vote, I’d just as soon your privilege to vote was abolished. Too many men and women have died for this great nation for you to be obsessed with your vote being on the winning side. We are all on this giant boat and we all need to contribute, regardless of who is the captain. So quit your squawking and start rowing.

Kelly Burke, master attorney, former district attorney and magistrate judge, is engaged in private practice. He writes about the law, Rock ‘n’ Roll and politics. These articles are not designed to give legal advice but are designed to inform the public about how the law affects their daily lives. Contact Kelly at kelly@burkelasseterllc.com to comment on this article or suggest articles that you’d like to see and visit his website www.kellyrburke.com to view prior columns.

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