Why can a candidate win the popular vote and lose the presidency? An Op-Ed from a Roman Historian

The “Founding Fathers” are often treated as a sainted lot.  They like, all politicians, were engaged at their best moments in a grand compromise.  A horse-trading of privileges, rights, and duties that leaves no-one happy, but, if successful, staves off civil war.  At their worst, again like all politicians, they were engaged in the protection of their own self-interests and the interests of their kith and kin.

I’m not a U.S. historian, but I am an American and I do know quite a bit about the models on which our founding fathers drew.  As our country faces again our deep divisions, I offer a question, a history lesson, and more questions for introspection.

Why can a candidate win the popular vote and lose the presidency?

In the grand compromise negotiated by the founding fathers at its heart was a struggle over balancing the rights of individual communities to be self-governing and the rights of individuals to be treated equally under the law.  You may remember this from Social Studies, Civics Class, or American History 101 as the question of “States’ Rights” or the Federalists and the Anti-Federalists.  Because the 13 original colonies already had independent political structures in place, there was no will among the elite to dismantle the existing entities and start anew, only a desire to unite these states into a more perfect union.  “More perfect” meaning better able to assert itself on an international stage as a viable, powerful nation state.

This comprise is the same compromise that gave us a slave counting as 3/5s of a human being and the same compromise that was designed to keep a power balance between states with large slave populations and those with smaller or unacknowledged slave populations.  This is also why you will hear some claim that the Civil War was not about slavery, but “States’ Rights”.

We may be in motto ‘one nation under god’ or e pluribus unum (out of many, one), but we are not under one law.  We have the right to move freely between states (if we are privileged enough to have this economic mobility), but we must live under the different laws of each state while resident therein.  These laws can be very different indeed.  What power does the federal government have to unify individual rights? Only those constitutionally guaranteed.  Which is, of course, highly dependent on how the constitution is interpreted (= why everyone is freakin’ out about the Supreme Court).

In the grand compromise of our founding, the restriction of the powers of the federal government was not only limited to the written constitution, but also by how we as citizens are allowed to participate in that central government.  The electoral college is intentionally designed to restrict our ability to effect change by a simple popular majority.  The design worked.  Hillary will not be president.

Whaaaa?

Back to Civics class.  The number of members of the electoral college, the people who actually choose our next president, is equivalent to the number of members of Congress.  Each state gets 2 votes, one for each senator, and one vote for each member of the house of representatives.  (DC get three, Puerto Rico and other territories get none; all further later political compromises.) Thus, no state has less than three, no matter its population.  The distribution of representatives to the House between the states, and thus electoral votes, changes each census to reflect population shifts.

The media often talks about the importance of winning big states with large numbers of electoral college votes, but in fact the system is set up so as to privilege regions with low population densities.  Your vote counts more in the electoral college if you live in a state with a smaller population:

The Texas voter has the least say and the Wyoming voter the most.  This type of block voting intentionally suppresses the interests of the individual and prioritizes State identity.  It is more important that the state gets its say than the individual.

To really drive this point home, consider this: states are allowed to choose by their own means who serves as delegates to the electoral college and those mysterious individuals are not by federal law constrained to follow the popular vote, although some 35 individual states do regulate how they vote.  Theoretically, the electoral college could meet and elect whomever they chose and no constitutional crisis would follow. (Update: SCOTUS has moved us away from this as of 7/6/2020.)

The means by which we choose our president is not intended to be democratic in any pure sense of the term (demos = people, kratos = power, authority), but instead an expression of the States’ choice of leadership informed by a popular poll.

In our nation’s history we’ve been moving away from the compromises of our founding fathers towards more democratic institutions.  We’ve tended towards a widening of the enfranchisement, incorporating women, former slaves and their descendants, and those between the ages of 18-21.  Before 1913 US senators were chosen by the governments of individual states, not through direct popular election.

The question I put to you now, is this: is it more important to allow individual communities to be self-governing, or should we as one big, messy, divided nation, live by majority rule?

I myself am a Federalist.  One Country.  One People.  One Law.  This is largely informed by my reading of Roman republican history and the ways in which it demonstrates both the power and the disenfranchisement inherent in systems of block voting.

Our founding fathers were not enamored by the chaos of classical Athens’ radical democracy and its eventual, painful fall beneath the sway of the Spartans.  They worried about how to unite and govern vast tracts of land and they took comfort in the successes of the Roman republic in the centuries before Julius Caesar, Augustus, and the rest of the Emperors featured in B movies.  Our main sources on this form of government are Polybius, a Greek political detainee in Rome, who asked the question: How and by what constitution did Rome come to dominate the known world in just fifty-three years, and Cicero, a man from greater Italy who broke into Rome’s political scene by playing the arch-conservative.  They gave us and our founding fathers an idealized vision of Roman government, both in their own way from an outside perspective.

One ideal they both communicate is still one of our most cherished values: the checks and balances between different branches of government.  However, for Polybius and Cicero, the checks and balances were not exactly between branches of government, but instead between types of government: monarchical, aristocratic, and democratic.  Ancient wisdom said you needed some of each, but not too much.

The ‘genius’ of the Roman system of block voting was that it appeared each individual had a say, but not all of those ‘says’ were in fact relevant.  Another Greek historian commenting on Rome’s government, Dionysius of Halicarnassus, claimed that the true power of Rome rested in this appearance of democracy through its system of voting, without in fact having popular rule.  In one Roman system of block voting, citizens voted in groups determined by wealth and age, with the groups of wealthier older citizens having fewer members than those with less property and fewer years.  Fewer members meant more power because the individual votes carried more weight toward the block vote.  Other Roman block voting systems were ostensibly tied to geographical origins and by extension family origin, but really meant that if you came from a poor urban background your vote would probably count much less than that of a leisured country dweller who decided to come to the city to cast a vote.

Block voting allowed the Romans to perpetuate the inequalities of their society.  Block voting allowed our founding fathers to give significant concessions to the anti-Federalists and slave owners.  Let us re-negotiate their grand compromise, as we have already done many times before.  And, in doing so, strive once again to create a more perfect union.