Stanford Politics

For the second time in 16 years, the winner of the national popular vote will not become President of the United States. With 306 electoral votes, Donald Trump is president-elect; with a 1.2 percent lead in the popular vote, Hillary Clinton is a private citizen. How do we reconcile these seemingly contradictory facts? Simple. In the United State some people’s votes count more than others.

It is not news that the electoral college allocates more voting power to residents of states with small populations. Each state receives electoral votes equivalent to its total congressional representation, senators plus representatives. All states are allocated two senators irrespective of population; hence, smaller states generally receive two more electoral votes than their population would dictate. The effect is that voters in Wyoming have approximately four times the voting power of those in California or New York.

In the first two centuries of our republic, this disparity did not swing the results of more than a handful of elections. From 1788–1996, the first 52 presidential contests, only three times did the winner of the popular vote not take the White House. Between Grover Cleveland’s 1892 victory and Bill Clinton’s 1996 romp, the popular vote invariably aligned with the electoral college. With such alignment commonplace, there was little reason to consider abolishing the college. After all, doing so would require a sustained national effort over several years, and no one was willing to invest that sort of time and money for zero material payoff. So the electoral college remained as an institution, even as the United States strove for greater equality of voting power.

And strove it did: in 1965, Congress reenfrachinsed African Americans with the Voting Rights Act; a year earlier the Warren Court set a rigid standard of “one person, one vote” for state legislatures in Lucas v. Forty-Fourth General Assembly of Colorado. 1971 guaranteed the franchise to 18 year-olds, and in 1972 and 1976, both major parties caved to popular sentiment and expanded their systems of primary elections. In fits and starts, ballot access equalized among American adults.

This equalization of voting power has made the results of the 2000 and 2016 all the more disconcerting. Normatively, Americans have come to expect that each vote will count equally, and it offends our values for accidents of geography to determine our sole national election. There is little question that both George W. Bush and Trump benefitted from the disproportionate power of smaller states. In 2000, Bush won 21 of the 30 least populous states, and this year Trump won 19.

Even more troubling is the formal gap in racial voting power. Hispanics and African Americans tend to be concentrated in urban environments in larger states, meaning they are systematically disadvantaged in presidential voting. Simple weighted averages reveal white presidential votes to count 4 percent more than black presidential votes, and 9 percent more than Hispanic presidential votes. In a society that preaches equal justice under the law, these disparities are nearly impossible to justify.

Nevertheless, some try. More than a few pundits have suggested that these groups, and Democrats more broadly, deserve their disadvantage for congregating in relatively homogeneous areas. Want equal power? Move to North Dakota. Otherwise, you should pay an electoral price for comfort in your community.

Advocates of this position usually couch it in softer language, because when laid out naked, the argument is clearly absurd. Ballot access shouldn’t be conditioned on your choice of community any more than it should be conditioned on race or sex. Any argument to the contrary implicitly affirms that some citizens’ interests are more important than others, and the idea that we need care more about lumberjacks than bus drivers is antithetical to both the 14th Amendment and the Declaration of Independence.

A more tenable defense of the electoral college points to its convenience it the event of a recount. Proponents of this view point to the month it took to determine the winner of Florida in 2000, and invite us to imagine that same chaos on a national scale. In the worst case scenario, they describe protracted court battles playing out over months, and the passage of inauguration day without a clear winner. The end result could very well be a constitutional crisis.

Such concerns are overblown. It is not as though a nationwide recount would only proceed one state at a time; each state would tabulate the ballots simultaneously, and probably more quickly than Florida if they used a reasonably understandable ballot format. Extended litigation is also unlikely, given that in 2000 the Florida and U.S Supreme Courts were able to issue decisions in election cases within two days of being presented with them.

But more importantly, are we really prepared to say that potential convenience justifies counting citizens of Wyoming four times more than residents of California? The average white citizen 9 percent more than the average Hispanic? If so, our society needs to ask itself why it is prepared to sacrifice justice on the altar of expediency.

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Brett Parker, a senior studying political science, is the managing editor of Stanford Political Journal.