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The Legitimacy of Trump’s Victory and the Limits of Democracy

Some already seek to delegitimize Donald Trump’s decisive victory in the Electoral College, on the grounds of his failure to win the popular vote. But in the close elections where the results of the Electoral College and the popular vote diverge, the popular vote result has no electoral significance because the candidates did not try to win the popular vote. If they had tried to get the highest popular vote, they would have campaigned entirely differently. Donald Trump would have campaigned more in Texas to increase his vote and Hillary Clinton would have campaigned more in California. They would have run their television advertisements in different places. And perhaps fewer citizens would have voted, because many more would have thought their vote was unlikely to change the large national count.

Given the less than 200,000-vote margin separating the candidates, we cannot be certain who would have won the popular vote had the candidates been aiming for a popular majority. As I said in a similar discussion of Bush v. Gore, “paying attention to the popular vote this context is like suggesting we should pay attention to the total number of runs a team got in the World Series rather than the number of games won.”

A second myth to delegitimize the Electoral College and thereby Trump is to claim that the Electoral College advantages the small states. But it is not the small states but the largest states that gain most advantage as the rule actually operates. It is true that the Electoral College gives two votes to each state, regardless of population, and that constitutional decision does advantage the small states. But because all states except two have decided to use winner-take-all systems for awarding their votes, it is actually large states that are advantaged. The reason is that large states are much more likely to be decisive in the electoral college. Thus, as a matter of fact, the Electoral College actually tempers the overall small-state advantage that is provided by equal representation in the Senate.

More generally, we should remember that in close elections, there is no transcendental winner. If the election had been held a week ago, Clinton may well have won. If held a week later, perhaps Trump would have won by more. Weather patterns can change turnout and affect results. Democracy is thus an imprecise instrument. It can guarantee that we do not have a President with only a small base of support, but, as a fuzzy snapshot taken at a particular time, it cannot pick out the person with majority or even plurality approval of any duration.

This understanding of elections further confirms that we cannot depend entirely on representative democracy at the national level for our welfare. Entrenched rights—property rights and civil rights alike—are also essential, as are the checks and balances of federalism and the separation of powers. Democracy provides a complement to classical liberalism. It is no substitute.

Reader Discussion

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on November 10, 2016 at 08:41:49 am

Looking at it from a constitutional viewpoint, Congress has two bodies: 1) representatives for states numbered on a per capita basis plus 2) two senators for each state, All Congressmen are elected by the people in their states, representatives for 2 year terms and senators for 6 years. The Electoral College is specified the same way perhaps for the same reasons. There are 438 representatives, 100 senators, and 538 electors.

Other systems could be devised to prevent the ruin of pure democracy, but the USA system, a representative republic, seems to work.

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Phil Beaver
on November 10, 2016 at 09:25:10 am

Excellent points. To me, the protests we are witnessing against the presidential election, (likely organized, instigated, & orchestrated, vs. a purely organic phenomenon) are symptomatic of not only sour grapes, but of greater concern, of: 1) a lack of understanding and/or internal commitment to the United States' system of government., 2) immaturity and lack of learned mechanisms for dealing with failure (the "everyone gets a trophy" syndrome); primarily rooted in a failed (parental and) educational system.

The (American type) system of democracy only works so-long as it has the internalized commitment, support and defense of its citizens. This is something that is learned and must be taught. This is also (likely) why there has been a relatively low success rate among other nations who have tried to adopt democracy. The great American Experiment is not a failure because it cannot be duplicated, but because it takes very precise conditions for success.

Although the right to assemble and (peacefully) protest is as fundamental a right as freedom of religion, press, etc., still it is a disturbing foreboding to me, for the ultimate fate of our American Democracy when I see people protesting and expressing an unwillingness to accept election results or the legitimacy of a rightfully elected President, and yes, when they kneel during the National Anthem, no matter the rightness of their intention or cause, for it demonstrates a very weak commitment to the United States system of government.

Just as the pollsters and liberal media apparently (or obviously) misread all the signs and under-currents that led to a Trump victory, the many (under) current signs of waning commitment to the Democracy are also (in my view) not being appreciated for what they may be signaling, and this, to the greater danger.

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Paul Binotto
on November 10, 2016 at 14:47:53 pm

I would not worry about the 200,000 vote differential.

Perhaps, if the vote count included only living voters and citizens, it may mean something.

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gabe
on November 10, 2016 at 17:55:41 pm

UPDATE:

CNN now predicts The Trumpster will WIN the popular vote by 300,000 as there were apparently 10 million votes uncounted.(not that I watch CNN, of course). nobody really does that anymore, do they?

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gabe
on November 11, 2016 at 15:41:10 pm

Here is an interesting item ( I am not certain that this is true for all States):

From American Thinker on The Fat Lady in a Pantsuit *winning* the popular vote.

First of all, she’s probably not going to win the actual number of votes cast. She may win the number of votes counted, but not the votes cast.

States don’t count their absentee ballots unless the number of outstanding absentee ballots is larger than the state margin of difference. If there is a margin of 1,000 votes counted and there are 1,300 absentee ballots outstanding, then the state tabulates those. If the number of outstanding absentee ballots wouldn’t influence the election results, then the absentee ballots aren’t counted.

Who votes by absentee ballot? Students overseas, the military, businesspeople on trips, etc. The historical breakout for absentee ballots is about 67-33% Republican. In 2000, when Al Gore “won” the popular vote nationally by 500,000 votes and the liberal media screamed bloody murder, there were 2 million absentee ballots in California alone. A 67-33 breakout of those yields a 1.33- to 0.667-million Republican vote advantage, so Bush would have gotten a 667,000-vote margin from California’s uncounted absentee ballots alone! So much for Gore’s 500,000 popular vote “victory.” (That was the headline on the N.Y. Times, and it was the lead story on NBC Nightly News, right? No? You’re kidding.)

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gabe
on November 11, 2016 at 19:27:47 pm

I am amazed these distinguished pillars of objective and independent journalism missed this story, say it isn't so!

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Paul Binotto
on November 13, 2016 at 10:06:06 am

It's amazing how some peoples grand parents voted Republican their entire life until they died . . . and have been devoted Democrats ever sense!!!

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James Phelps

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.