How the loser won the White House...again

November 16, 2016

Another Republican will scurry into the White House after losing the popular vote, but another Democrat will let it happen without a peep of protest, writes Nicole Colson.

IN AN actual democracy, the candidate who gets the most votes wins the election, right?

But not in the "world's greatest democracy." For the fifth time in U.S. history and the second time in 16 years, the presidential candidate who won the popular vote won't sit in the Oval Office next January--because the popular vote loser got the edge in the racist relic known as the Electoral College.

It's a symbol of how profoundly undemocratic the U.S. political system is: Donald Trump not only got fewer votes than Hillary Clinton, but he and his supporters are claiming a "mandate" for a reactionary agenda--as if the election proves an overwhelming majority support for it.

On the contrary, the U.S. system of undemocracy functioned as it always has in giving the mantle of legitimacy to an election "winner" who only represents a minority of people in the U.S.--and in this case, that minority is smaller than usual.

Based on any genuine understanding of democracy, Donald Trump's presidency is completely illegitimate.

Donald Trump
Donald Trump (Gage Skidmore)

But this is only example of what an undemocratic fraud the U.S. two-party system is. Another example: More than $1.3 billion was raised mainly in support of the two major-party candidates--yet 42.7 percent of eligible voters didn't even vote on Election Day.

Then there's the estimated 6.1 million Americans--one out of every 40 people in the U.S. voting-age population--who are legally disenfranchised as a result of having felony convictions. Plus millions more couldn't vote because of their undocumented status.

As a result of all this, the next president of the United States was the choice of only about one-quarter of the voting-age population.

AS OF this writing, Clinton leads Trump in the popular vote count by nearly 800,000 votes. The final count of won't be available until next month--millions of absentee and provisional ballots are still to be tallied, primarily in "blue" states like California, Washington and New York. By then, Clinton's edge will be as much as 2 million votes and nearly 2 percentage points, according to estimates cited by the Atlantic.

Clinton's margin of victory is already larger than any previous election when different candidates won the popular vote and Electoral College. In 2000, Al Gore beat George W. Bush by around 550,000 votes.

But in 2000, the gap in the Electoral College was very narrow--the election was decided by Bush "winning" Florida, on the basis of a 537-vote edge out of 6 million ballots cast in the state. And that lead wouldn't have held up without the U.S. Supreme Court, stacked with Republican justices, stopping a statewide recount that, according to later analysis, would have named Gore the winner of Florida, and therefore the White House.

By contrast, Clinton was soundly defeated in the Electoral College despite winning the popular vote by more than Gore did. Election 2016 has proven even more clearly that the backward, racist remnant of pre-Civil War slavery needs to be abolished.

The Electoral College was written into the Constitution to protect America's ruling class from the consequences of one-person-one-vote democracy.

The theory, as Alexander Hamilton once put it, was that ordinary people weren't intellectually capable of choosing the president, so instead, "a small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations."

But there was a more specific motive for the Electoral College--preserve the institution of slavery.

In a speech first proposing a version of the Electoral College in 1787, James Madison--a Virginia slave owner himself--explained that it was necessary because "Negroes" in the South presented a "difficulty...of a serious nature."

The "difficulty" was that slaves couldn't vote--but they made up a large percentage of the population of Southern states. Any system of elections based purely on which candidate or party got more votes would therefore favor the Northern states, where slavery had been abolished in every state by 1804.

So the "Founding Fathers"--many of them slave owners--came up with ways to get around the "difficulty." First, there was the infamous "three-fifths rule"--for the purposes of determining representation in the House of Representatives, where members are apportioned to each state based on its share of the U.S. population as a whole, slaves would count as three-fifths of a person.

The Electoral College system added a further advantage for the South--the number of electors from each state, based on which candidate won the popular vote, was the state's total number of members of the House of Representatives, plus two, for the state's two senators. States with smaller populations are overrepresented in the Electoral College to this day because of the additional two electors by counting senators.

In Virginia, 40 percent of the population was made up of slaves at the time, but when the Electoral College was implemented, the state had 12 out of the 91 total electoral votes--more than a quarter of what was needed to win the presidency from just one state.

After the Civil War, the three-fifths clause was abolished, but discrimination continued in Jim Crow laws that restricted the voting rights of African Americans. And although the 14th Amendment, passed after the Civil War, technically granted voting rights to Black men, it explicitly denied voting rights to all women--who would only finally receive the right to vote decades later in 1920.

TODAY, the Electoral College continues to give outsized influence to less populated rural states that are part of the Republican base--at the expense of more populated states that are often Democratic-leaning. Each one of California's 55 electors represents 705,000 people in the state's population--while each of Wyoming's three electors represents 196,000 people.

The electors in all but two states are selected on a winner-take-all system--the slate pledged to the candidate who wins the popular vote goes to the Electoral College. Hillary Clinton suffered particularly on this score: Trump won in Florida, Michigan (where a recount is underway), Pennsylvania and Wisconsin by a combined margin of around 230,000 votes, which gave him a total of 75 electoral votes. Clinton's 3 million-vote edge in California is worth only 55 electors.

In 29 states and the District of Columbia, electors are legally bound to vote for the candidate who won the popular vote. In others, they are technically not bound--but it is practically unheard of for electors to cast a vote against the candidate they pledged to vote for--they are, in fact, as former Supreme Court Chief Justice Robert Jackson called them in 1952, "voluntary party lackeys and intellectual non-entities."

"As an institution," Jackson added, "the Electoral College suffered atrophy almost indistinguishable from rigor mortis." Yet among the political establishment, questioning of the Electoral College is equally unheard of.

Meanwhile, other absurdly undemocratic aspects of the U.S. political system are ignored entirely. For example, the Republicans succeeded in maintaining control of the U.S. Senate by a 52-to-48-seat margin--even though far more voters cast a vote for a Democratic candidate (45.2 million) versus a Republican candidate (39.3 million), according to USA Today.

This highlights how the Senate is another undemocratic institution dating back to the maneuvering of the slave power. Alaska's Republican Sen. Lisa Murkowski was re-elected with 111,000 votes, while New York's Democratic Sen. Chuck Schumer got re-elected with 4.8 million votes. Yet their one vote each in the Senate carries the same weight on federal legislation.

THERE WERE plenty of other signs on Election Day showing that America's ramshackle election system operates little better than the sham votes held in authoritarian dictatorships.

First of all, there's the absurdity of national elections taking place on what is, for the vast majority of people with jobs, a workday. This limits the amount of time individuals are able to wait in line to vote--and long lines in the states that now at least allow early voting may also have discouraged others.

As Emily Badger commented in the New York Times the day after the election:

Early voters, urban voters and minority voters are all more likely to wait and wait and wait. In predominantly minority communities, the lines are about twice as long as in predominantly white ones...And minority voters are six times as likely as whites to wait longer than an hour to vote. Those disparities have persisted even within the same town or county, suggesting they don't reflect simply the greater difficulty of putting on elections in populous cities.

Charles Stewart III, a political scientist at the Massachusetts Institute of Technology estimates that waiting to vote nationwide may have added up to a billion dollars in lost wages.

Plus, after a 2013 Supreme Court decision invalidating portions of the 1965 Voting Rights Act, Republicans in several states rammed through new voter ID restrictions ostensibly aimed at reducing fraud--but in reality designed to suppress the votes of minorities.

Though fears of widespread disenfranchisement as a result of these laws don't appear to have materialized, it's true that some states with new restrictions--including one-time loyal Democratic states like Wisconsin and Ohio that went to Trump--had lower turnout. "It's undeniable that there's an effect [from new voting laws]," Gerry Hebert, director of voting rights and redistricting at the Campaign Legal Center, told the New York Daily News. "The people that enact these laws know what they're doing."

IN THE run-up to the election, those who said they would vote for a third-party candidate like the Green Party's Jill Stein were told that they were "throwing their vote away"--and chided for denigrating the historic sacrifice of those who fought for the right to vote.

But the irony is that because of the profoundly undemocratic nature of the American political system, millions of people who voted for Hillary Clinton--including a disproportionate number of African Americans--were the ones whose votes were essentially thrown away since it didn't matter that their candidate won the most support in the popular vote.

A large part of the U.S. electorate today feels like they were victims of fraud. Since the election, well over 1 million people signed onto one of the multiple petitions to abolish the Electoral College. More than 4.3 million have signed a petition calling on electors to vote for the winner of the popular vote, Hillary Clinton. "[W]hy not use this most undemocratic of our institutions to ensure a democratic result?" one petition asks.

But this outcome will remain a fantasy, not least because Clinton herself, along with Barack Obama, Bernie Sanders and every other Democratic leader is respecting the legitimacy of Trump's election--and even urging Democratic voters to approach his presidency with an "open mind."

That doesn't mean any of us who plan to protest Trump's right-wing presidency from day one should have an open mind. He's the loser who won the White House because the U.S. political system is so undemocratic--and he certainly doesn't have a "mandate."

It's time to dust off the slogan that we greeted George W. Bush's inauguration with: "Hail to the thief."

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