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John Yoo

First Page

833

Last Page

872

Document Type

Symposium

Abstract

In the aftermath of the 2016 U.S. Presidential Election, where Donald J. Trump lost the popular vote by nearly 3 million votes but still secured victory in the Electoral College, renewed efforts to delegitimize or abolish the Electoral College system have surfaced. Critics, calling for a direct national vote for President, attacked the legitimacy of the election and decried the Constitution’s method of presidential selection as antiquated and undemocratic. Some legal scholars even suggested that the Electoral College must be abolished to disentangle it from America’s racist past and history of slavery. Recently, though, reformers in several States have banded together to promote a pact known as the National Popular Vote initiative, an interstate agreement that would assign a State’s electoral votes to whichever candidate wins the national popular vote and would go into effect as soon as legislation is passed in a sufficient number of states to constitute an electoral majority. In this Essay, I respond to current criticisms of the Electoral College by providing a historical perspective on the Framers’ decision-making throughout the drafting and ratification process and discuss how the Electoral College’s roots in federalism still remain relevant today. Ultimately, I caution against an overreaction to the 2016 election despite the Electoral College’s failure to filter out a candidate such as Trump. I argue that the alternative to the Electoral College—a system of direct election that would not benefit from the state structure to dissipate and diffuse rash popular movements—could be even more deleterious to American democracy, as it presents a far higher risk of electing a demagogue and falling prey to the tyranny of the majority.

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