Today, the news is awash with charges that both the Republican and Democratic primary processes are “rigged” and “crooked.” That is, a candidate for President can be selected even though that person did not receive a majority of the votes. I’ll put aside for the moment the fact that these rules have been set for some time, and were readily available to anyone who wanted to study them. What fascinates me far more is this outrage that the selection process is “undemocratic.”
As I often remind my students, we do not live in a democracy (no matter how many books Justice Breyer writes). We live in a Republic, where the structural provisions of our Constitution are designed in many ways to check democratic factionalism. Let’s consider a few examples, with respect to choosing the actual President–and not just the candidate for a political party.
When Americans go to the poll to vote for President in November, they are not actually voting for President. They are voting for electors, who will meet in the electoral college, to determine who should receive that state’s electoral votes. The number of electoral votes is determined by adding together the number of representatives and Senators–so a state must have a minimum of three. (In this sense, the votes of more populous states are somewhat diluted–so much for “one person, one vote”).
However, contrary to common conception, the Constitution does not require the electors to vote for whoever won the popular vote in the state. This was not an accident. The delegates chosen to attend the electoral college–what our framers may have called “the Establishment”–didn’t trust the masses. The electoral college served as a check, to ensure that a demagogue–even someone who achieved a majority in the popular vote–would not be selected as President. This is still (in large measure) the law today. According to FairVote, 29 states bind their electors to vote for the candidate that won the popular vote. But 21 states do not. In 2012, the AP reported that 5 Republican “rogue” electors would vote for Ron Paul over Mitt Romney.
As a result, those electors are free to vote for whomever they want. In theory at least, a candidate could receive the electoral votes of 21 states, without winning a single vote in that state.
It gets even more undemocratic. Consider the election of 1800. Thomas Jefferson had 73 electoral votes, Adams had 65 votes, and Aaron Burr had 73 votes. Because no one received a majority, it goes to the House of Representatives, where each state has a single vote. (This puts large states at a significant disadvantage over smaller states with a single member–and divided states with an even-number of members may not be able to agree on a single vote). On the 35th ballot, the House finally selected Jefferson as President. But they didn’t need to. They could have selected the third-place finisher, Adams, who had received fewer electoral votes than Burr, but had more popular votes. If a candidate won a single electoral vote–perhaps because an elector did not follow his state’s popular vote–that person can go to the House ballots, and become President, if the House so chooses. The popular vote here is totally irrelevant. As Al Gore knows all too well, winning the popular vote does not make you President.
I could go on, but you get the drift. The process of selecting the President set out by the Constitution is extremely anti-democratic. I suppose current events can serve as a helpful civics lesson about our Republic.
Disclosure: I support Sen. Ted Cruz’s campaign, but my views on the separation of powers long predate his candidacy.