Constitutional Anachronism Frustrates Popular Voting

In the first presidential election, in 1788–89, the Virginian, George Washington, received all 69 electoral votes and 43,782 popular votes from white male property owners over the age of 21. The census of 1790 reported that the total population of the 13 states was 3,893,635, of which 1,598,944 were free white males. A majority, some 2,235,943 [women and slaves], were disenfranchised. As a matter of fact, the popular vote had no consequence, since the actual voting electorate was that of the 69 persons chosen for the states pursuant to the Constitution.

The electoral college voting system [ECVS] remains in place today but has emerged to become an obstacle to the democratization of presidential elections, even as constitutional amendments have dramatically and substantially expanded and increased voter suffrage across race, gender, and age. At the same time the nation now counts 325 million in population. The ECVS, along with the guarantee of two senators for each state, was grafted onto the Constitution to assuage the fears of less populous states in the control of the new government. In fact, the express purpose of these provisions was to avoid the direct popular vote election of the nation’s chief executive. Alexander Hamilton argued in The Federalist:

A small number of persons . . . will be the most likely to possess the information and discernment requisite to such complicated investigations. It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder.

Although the Framers were not disposed toward entrusting the general voting population with the selection or election of a president, the ECVS for some 200 years did not seriously or materially thwart the popular-vote-to-elector paradigm, that is, until 2000. In that contest, the Democrat polled 450,000 more popular votes than the Republican but lost Florida’s 25 electoral votes by 527. The result was that the Republican received 271 [one above the 270 bare majority of 538] in the ECVS.

For 2016, the results tabulating the national popular vote show the Democrat with 2.841 million more votes than the Republican. In contrast, the electoral vote was 232 and 306, respectively, for the Democrat and Republican candidates, a difference of 74 electoral votes. Yet the victor has continued to insist that the election was “rigged” or the Democrat’s results were caused by “millions” of illegal votes, or perhaps both. On other occasions, the winner has claimed that the ECVS favors Democrats.

Some observers have commented that this anomalous difference between the candidate who won a sizable margin of popular votes further contributes to the sense that votes don’t count and elected officials don’t hear their complaints. In addition, the disparate results tend to diminish the mandate of the individual who assumes the office.

A closer examination of the popular and electoral results for 2016 further highlights the distorted effect of the ECVS and raises heightened concern about the potential influence of foreign actors. The data demonstrate that the results—in proportion—belie the arc of democratization represented in expanded voting, and actually tend to confirm the Framers’ fears of “tumult and disorder” as a potential for presidential elections. The results of three states in 2016:






Electoral Votes

Popular Vote
























28,496,416 46 6,577,816 6,665,566


Ironically, Hamilton’s “a small number of persons”—77,744—elected a president in 2016 due to the ECVS. At the same time, this constitutional distortion provided no benefit among more and less populated states and invalidated nearly 2.7 million popular votes in favor of the “winner take all” for the 46 electoral votes in these three states. Constitutional “originalists” might be heard to insist that lesser populated states are protected by the ECVS and that the United States is a republic. It is not clear how this argument serves the proposition voiced by Chief Justice Earl Warren [Reynolds v. Sims, 1964], establishing one person, one vote as the criterion for elections. The preference of a minority of voters cannot be justified to effect a different outcome for reasons no longer pertinent or reasonable.

Whether by fake news or other, the citizenry receives information about candidates and is and has been matured by many levels of campaigns and campaign rhetoric to the extent that each person’s vote must be effected as far as possible. There will always be partisans who disagree with an election’s results but it must not be a pre-ordained small number. The 2016 narrow electoral margin of victory considered in proportion to 325 million also heightens concern about the extent of influence required to control the outcome.  At 77,744 to 325 million—not much. Tumult and disorder could produce such a narrow margin.

The original purpose of the ECVS has become an anachronism, functionally eliminated by constitutional amendments extending the voting franchise to increasingly larger population cohorts, eradicating the racial, gender, and age barriers assumed in the original Constitution. What remains to be accomplished is eliminating the distortion caused by the system and identifying a replacement that requires presidential candidates to compete for votes in all 50 states.

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Categories: Issues, National

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