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By Aqib Md Fuad

Is the USA a good democracy? Yes, it is (arguably the best?). Dissenting voices may arise now especially after the  ‘unprecedented’, ‘unexpected’ and ‘unbelievable’ victory of Donald Trump (or was it!) in the 2016 US Presidential Election despite not getting a popular vote, just by the merit of Electoral College Votes and by the ‘Winner Takes All’ Policy in the states.

Or did Trump just win the election yet?

First of all, ‘Direct or Pure Democracy’ is not what we mean by Democracy. It simply do not work, it implodes. In a Pure Democracy, a bare majority can easily tyrannize the rest of a nation. Direct Democracy has been colorfully described by Benjamin Franklin as, “Democracy is two wolves and a lamb voting on what to have for lunch.

The Founding Fathers of the USA (who also happen to be some of the best modern political philosophers) after giving much thought developed the system of Representative Democracy giving ‘check and balance’ in each and every steps. And thereby developed the Electoral College process for the Presidential Election.

Now the questions may arise, What were the thoughts? Why did not the Founders of the US just make it easy, and let the presidential candidate with most votes claim victory? Why did they create and why do the US still need the Electoral College? The answer is critical to understand not only the Electoral College, but also America. The Founders of the USA had no intention of creating a pure majority-rule democracy for the reason mentioned. They wanted to avoid this at all costs. 

How it works

The US Constitution (Article 2, Section 1, Clause 2) specifies how many electors each state is entitled to have. Since 1964, there have been 538 electors in each presidential elections. The number of electors is equal to the total voting membership of the United States Congress; 435 Representatives, plus 100 Senators and 3 electors from the District of Columbia (D.C.). Each state get a particular number of electors based on the population size from the census, which coincides with the number of congressional members in each state. For example, the state of California has 53 members in the House of Representatives and two in the Senate, therefore the State gets 55 electoral votes. Most electors pledges to vote whichever candidates get the popular votes in a particular state, popularly known as ‘Winner Takes All’. Only exceptions to this pledges are in the state of Nebraska and Maine which both use a congressional district method. Although despite this difference, in every election both of these states have never split there electoral votes and have always ended up following statewide popular vote.

electoral-college

One strange fact is that there is no federal law requiring  the electors to vote for their state’s preferred candidate. 21 states have no rules on the issue whatsoever. Moreover in the other 29 states, plus the District of Columbia, which do require the elector to vote alongside the populations offers a punishment of small fine, varying from state to state, if not followed. Despite this loop of legality there have only been only 157 cases in the history of USA of electors who have voted contrary to their pledged (mostly because, the candidate died before the vote). These are called ‘faithless electors’ and not once in the history, they have change the outcome of any elections. 

Implications on the elections

The Presidential Election of the US takes place in in two phases. The first part is purely democratic, that is the 52 popular elections held in November every election year: one in each of the 51 states and one in District of Columbia(D.C.). Part two of the election is held in December. And it is this ‘December Election’ among the states’ 538 electors, not ‘The November Election’, which officially determines the identity of the President of the United States of America. And in this phase, a candidate needs at least 270 votes to win, that is the simple majority.  Months before the election day, electors are nominated to their positions by each political parties. After the November Phase of the election, these electors meet up in the states’ capitals and sign ‘The Certification of Vote’ which is then delivered by the office of the President of the United States Senate. It is on January 6th of the year after the election one when US Congress convenes and announces the certificates of vote and declares the official winner.

This system is important for a country like the USA as it encourages coalition-building and national campaigning. In order to win, a candidate must have the support of many different types of voters, from various parts of the country. He or she can not win 270 electoral votes if only one part of the country is supporting the campaign. But again if winning were only about getting the most votes, a candidate might concentrate all of his effort in the biggest cities or the biggest states. It also discourages the country from electing a unfit candidate as sometimes the ‘idiot masses’ can make a horrible decisions. According to one of the Founding Fathers of USA, Alexander Hamilton – The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Moreover there were some key assumptions based on which the system was formulated. These are:

1) Each State will figure out how to elect its electors.
2) Each Elector would vote with independent judgement.
3) Presidential Candidates can not pair up for both the Presidential and Vice Presidential Offices. The runner up of the election would be the Vice-President. But this has been revised and since 1804 an elector has a vote for both President and Vice-President
4) The System would rarely produce a winner, which means it would be up to the Congress of the United States to make the final decision.

In this system no political party can ignore for too long without suffering the consequences of losing the state’s electoral votes.

Electoral College system protect small states like Rhode Island, Vermont and New Hampshire; and even large states with smaller population like Alaska, Wyoming and the Dakotas. That’s because a candidate can not completely ignore small states, as in a close election every electoral vote counts.

One of the more practical significance is that, it makes it harder to steal elections. Votes must be stolen in the right state in right combination in order to change the outcome of the Electoral College, which is very hard to do. Without it any vote stolen in any precinct in the country could affect the whole Presidential Election.

The Bush-Gore controversy

Albeit all the positive aspects of this structure, there is a rising opposition to this system after the Presidential Elections of 2000 and 2016, both the times Democratic Party candidate losing despite getting a popular vote. Particularly in the 2000 Presidential Election between George Walker Bush and Albert Arnold “Al” Gore, Jr. where the result of the election came down to few hundred of votes which turned the table for George W. Bush getting all the 25 electoral votes from the state of Florida.

courthouse

Protest outside the Court before the verdict of Bush vs Gore

After a number of counting and recounting ordered by the Florida Supreme Court, the U.S. Supreme Court voted 5–4 to ‘stay of execution’ the Florida recount on the basis of ‘The Equal Protection Clause’ of the ‘Fourteenth Amendment’ to the United States Constitution (Bush v. Gore, 531 U.S. 98 , 2000).

What is next?

There is a proposed solution in the form of The National Popular Vote Interstate Compact (NPVIC or NPV), which is an agreement among a group of U.S. states and the District of Columbia to award all their respective electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia. But this overrules the dissent of the Founding Fathers of the USA over the Direct Democracy or majority-rule. On the top of that, it robs the states of their sovereignty, encouraging voter fraud and also limiting the campaign of the Presidential candidates to the population concentrated regions.

Electoral College is an ingenious method of selecting a President for a great, diverse ‘union republic’ as USA. It has its flaws but rather than abolishing or having a process like NPV, it can be rectified by the US Congress and political parties which would ensure a more Participating Democracy.


Aqib Md Fuad is currently doing his LL.B(Hons) at Department of Law, University of Dhaka. He is enthusiastic about politics and sports.

 

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