A lot of stupid things have been said about the Electoral College since it apparently handed Trump the presidency. Much of it is in the vein of Federalist Papers fan-fiction, as in an article that is so stupid that I refuse to link it, which argues that the Electoral College was designed to save us from demagogues like Trump — ignoring the fact that it’s only because of the Electoral College that we’re even in this situation to begin with. In discussions I’ve had on Facebook, there is also a lot of talk of how the popular vote is not a good rallying cry because the campaigns would have behaved differently under a non-EC regime. And of course, there’s also the fact that the popular vote has no binding legal significance.
All these discussions seem to me to elide the distinction between legality and legitimacy. On the Federalist Papers fan-fiction side, we see the position that since the EC is legal, it must be legitimate — i.e., it must have a positive purpose (saving us from demagogues, for instance), despite its negative effects (actually giving us two demagogues within our lifetimes). And the reluctance to use the popular vote mismatch as a rallying cry makes a similar mistake from the opposite direction: since there is no such thing as abstract legitimacy apart from legal reality, we had best accept our fate.
I refuse to accept the EC result as legitimate, in this case or in the 2000 case. George W. Bush never should have been president, full stop. The fact that he was ultimately elected to a second term does not validate the injustice that he took office in the first place — giving him a position that made it much easier for him to mislead and manipulate the American people into giving him power again after he illegitimately seized it. The popular vote is flawed due to the EC regime, but it obviously has greater democratic legitimacy from any perspective. Gore should have been inaugurated in 2000, and Clinton should be inaugurated now. I utterly refuse to concede on that “should.”
Of course, there seems to be very little chance that the current EC result will be overturned. Even if Stein’s recount efforts — for which she is being mocked and derided by fatalistic, defeatist Democrats — wind up changing some state results, hitting the trifecta seems unlikely. And of course, relying on partisan Republicans to “do the right thing” is a fool’s errand in the best of circumstances. And while we’re being “realistic,” it’s probably not politically feasible to amend the Constitution to remove the Electoral College — due to absurd constraints that are themselves illegitimate in my view. The Founders themselves ignored the provisions for replacing the Articles of Confederation when designing the current Constitution; some day, we need to have the courage to do the same.
What should happen in the meantime, then? Admittedly, this is not actionable — I am not an Elector and am in no position to influence any of them — but it’s interesting to play out the possibilities. The most intellectually satisfying way to think of it, in my view, is the way that some Electors reportedly are viewing their activities: if they take the Constitution at its word and act like independent agents exercising their own discretion, then that in itself will delegitimate the Electoral College, regardless of whether the overall result is changed.
What allows the EC to function is the fact that convention (and often state law) has tended to treat it as a purely mechanistic affair. The winner of each states just “gets” the EC votes of that state. The actual vote of the EC usually does not garner significant media coverage, as most citizens seem content with the idea that the news media plays the de facto role of announcing who won. But it remains the case that there are 538 nameable individuals who in fact select the president. They are chosen for their promise to behave in a machine-like way in ratifying the official EC result, backed by a lifetime of partisan loyalty, which reinforces the impression of a purely impersonal mechanism, but they are living, breathing human agents who are in fact selecting the president.
If this fact became vividly undeniable, then the EC would suddenly be intolerable. Actualizing the EC as “originally intended” would immediately delegitimate it — which shows that it is de facto illegitimate right now. Taking it literally breaks the spell. From a Schmittian perspective, breaking that spell is indeed a risky move, and I don’t pretend to know what would happen if, for instance, the Electoral College did choose Hillary Clinton. Maybe it wouldn’t be worth it. Maybe it would break a much bigger spell. But the fact is that the Electoral College is a ticking timebomb, a standing affront to all common sense democratic instincts. All that allows it to keep happening is a constant charade that it isn’t happening — that it’s an impersonal mechanism, that it fulfills some valuable function, that it isn’t 538 individual flesh-and-blood human beings who have the privilege of choosing the president every four years.