Electoral College lesson: More voters chose Clinton, but Trump will be president

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There are still more votes to be counted, but it looks almost certain that despite losing the presidency, Hillary Clinton will win the popular vote.

And likely by a million or more votes — a much larger margin than Al Gore enjoyed in 2000, when he too was denied by the Electoral College even though he nominally had more votes.

Put more starkly: It appears Americans chose Clinton, but got Trump.

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U.S. President-elect Donald Trump speaks at his election night rally in Manhattan, New York, U.S., November 9, 2016.

(REUTERS/Carlo Allegri)

Donald Trump supporters cheer as U.S. presidential election results are announced during a Republican watch party in Phoenix, Arizona, November 8, 2016.

(REUTERS/Nancy Wiechec)

Republican president-elect Donald Trump delivers his acceptance speech during his election night event at the New York Hilton Midtown in the early morning hours of November 9, 2016 in New York City. Donald Trump defeated Democratic presidential nominee Hillary Clinton to become the 45th president of the United States.

(Photo by Chip Somodevilla/Getty Images)

Republican presidential elect Donald Trump (L) arrives to speak during election night at the New York Hilton Midtown in New York on November 9, 2016. / AFP / JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)

President-elect Donald Trump, shakes hands with Vice-President-elect Mike Pence during his election night rally, Wednesday, Nov. 9, 2016, in New York.

(AP Photo/John Locher)

U.S. President-elect Donald Trump and his campaign manager Kellyanne Conway greet supporters during his election night rally in Manhattan, New York, U.S., November 9, 2016.

(REUTERS/Mike Segar/TPX IMAGES OF THE DAY)

Supporters of Republican presidential candidate Donald Trump cheer as they watch election returns during an election night rally, Tuesday, Nov. 8, 2016, in New York.

(AP Photo/ Evan Vucci)

Eric Trump and Donald Trump Jr. look on as Republican presidential elect Donald Trump speaks during election night at the New York Hilton Midtown in New York on November 9, 2016.

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US President-elect Donald Trump arrives at the New York Hilton Midtown in New York on November 8, 2016. Trump stunned America and the world Wednesday, riding a wave of populist resentment to defeat Hillary Clinton in the race to become the 45th president of the United States.

(SAUL LOEB/AFP/Getty Images)

Republican U.S. presidential nominee Donald Trump greets supporters at his election night rally in Manhattan, New York, U.S., November 9, 2016.

(REUTERS/Carlo Allegri)

Vice president-elect Mike Pence speaks to supporters at Republican president-elect Donald Trump's election night event at the New York Hilton Midtown in the early morning hours of November 9, 2016 in New York City. Donald Trump defeated Democratic presidential nominee Hillary Clinton to become the 45th president of the United States.

(Photo by Joe Raedle/Getty Images)

Republican president-elect Donald Trump walks on stage with his son Barron Trump, wife Melania Trump and Ivanka Trump during his election night event at the New York Hilton Midtown in the early morning hours of November 9, 2016 in New York City. Donald Trump defeated Democratic presidential nominee Hillary Clinton to become the 45th president of the United States.

(Photo by Chip Somodevilla/Getty Images)

A supporter celebrates as returns come in for Republican U.S. presidential nominee Donald Trump during an election night rally in Manhattan, New York, U.S., November 8, 2016.

(REUTERS/Mike Segar)

Chairman of the Republican National Committee (RNC) Reince Priebus hugs Republican presidential elect Donald Trump during election night at the New York Hilton Midtown in New York on November 9, 2016.

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Former New York City Mayor Rudolph Giuliani arrives on stage with his wife Judith Nathan as U.S. President-elect Donald Trump addressed supporters at his election night rally in Manhattan, New York, U.S., November 9, 2016.

(REUTERS/Brendan McDermid)

US President-elect Donald Trump greets son Eric after speaking at the New York Hilton Midtown in New York on November 8, 2016. Trump stunned America and the world Wednesday, riding a wave of populist resentment to defeat Hillary Clinton in the race to become the 45th president of the United States.

(SAUL LOEB/AFP/Getty Images)

Vice president-elect Mike Pence walks on stage with his wife Karen Pence at Republican president-elect Donald Trump election night event at the New York Hilton Midtown in the early morning hours of November 9, 2016 in New York City. Americans went to the polls yesterday to choose between Republican presidential nominee Donald Trump and Democratic presidential nominee Hillary Clinton as they go to the polls to vote for the next president of the United States.

(Photo by Joe Raedle/Getty Images)

US President-elect Donald Trump arrives with his son Baron and wife Melania at the New York Hilton Midtown in New York on November 8, 2016. Trump stunned America and the world Wednesday, riding a wave of populist resentment to defeat Hillary Clinton in the race to become the 45th president of the United States.

(SAUL LOEB/AFP/Getty Images)

U.S. President-elect Donald Trump, speaks an election night party at the Hilton Midtown hotel in New York, U.S., on Wednesday, Nov. 9, 2016. Trump was elected the 45th president of the United States in a repudiation of the political establishment that jolted financial markets and likely will reorder the nation's priorities and fundamentally alter America's relationship with the world.

(Photographer: Andrew Harrer/Bloomberg via Getty Images)

Melania Trump and Ivanka Trump look on as Republican presidential elect Donald Trump speaks during election night at the New York Hilton Midtown in New York on November 9, 2016.

(JIM WATSON/AFP/Getty Images)

U.S. President-elect Donald Trump arrives to speak during an election night party at the Hilton Midtown hotel in New York, U.S., on Wednesday, Nov. 9, 2016. Trump racked up victory after victory in key states Tuesday to put himself in position to threaten Hillary Clinton for the White House, with the results in three Rust-Belt states likely to determine the next U.S. president.

(Photographer: Andrew Harrer/Bloomberg via Getty Images)

Republican president-elect Donald Trump delivers his acceptance speech during his election night event at the New York Hilton Midtown in the early morning hours of November 9, 2016 in New York City. Donald Trump defeated Democratic presidential nominee Hillary Clinton to become the 45th president of the United States.

(Photo by Chip Somodevilla/Getty Images)

President-elect Donald Trump gives his acceptance speech during his election night rally, Wednesday, Nov. 9, 2016, in New York.

(AP Photo/John Locher)

Attendees cheer during an election night party for U.S. President-elect Donald Trump at the Hilton Midtown hotel in New York, U.S., on Wednesday, Nov. 9, 2016. Trump was elected the 45th president of the United States in a repudiation of the political establishment that jolted financial markets and likely will reorder the nation's priorities and fundamentally alter America's relationship with the world.

(Photographer: Andrew Harrer/Bloomberg via Getty Images)

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Trump's popular vote loss likely won't constrain his effective power as president, especially with unified GOP control of Congress — just as it didn't seem to hem in George W. Bush.

But if the candidate who got fewer votes wins the White House for the second time in five elections, it could put a new spotlight on the peculiar way that America picks its presidents — one not shared by any other democracy.

"It certainly is going to bring this back into the forefront of public discussion," John Koza, the founder of the National Popular Vote campaign, which aims to effectively get rid of the Electoral College, said Tuesday night as the results rolled in.

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To Koza and many good-government advocates, sidelining the Electoral College is common sense.

"We think every vote should be equal throughout the United States," he said. "We think the candidate who gets the most votes should become president."

Even on election night in 2012, when early results seemed to indicate that Mitt Romney would get more votes than President Obama but lose the electoral college (that didn't happen, Obama won both) Trump went on a tweet storm, calling "the electoral college ... a disaster for a democracy."

Five times in our history — in 1824, 1876, 1888, 2000, and, it appears, this year — the Electoral College has handed victory to the loser of the popular vote.

That's nearly 10 percent of the time — though systematic black voter suppression and other differences in how the elections worked make it hard to determine the true popular choice in the first three cases.

The impact isn't random, either. Since every state gets at least three electoral votes, there's a bias toward small states. Consider that California has 69 times as many people as Wyoming, but only about 18 times as many electoral votes.

One result is to give the votes of rural whites more weight than those of urban minorities—a harmful imbalance that already exists via U.S. Senate. That's why it's no coincidence that the Electoral College has twice in this century benefited the party favored by the former group over the one preferred by the latter.

Sanford Levinson, the respected Harvard Law School constitutional scholar, has called the current system "indefensible."

Only a constitutional amendment could formally abolish the Electoral College. Koza's National Popular Vote (NPV) campaign, which launched in the wake of the 2000 election, takes a different approach.

It lobbies states to pass legislation pledging that they'll award their electoral votes to the winner of the popular vote — something the Constitution allows. The legislation would only go into effect once states representing a majority of electoral votes — 270 — sign on. At that point, it would achieve its goal of ensuring that the candidate who gets more votes wins the presidency.

To date, 10 states plus the District of Columbia, representing 165 electoral votes, are on board. But none are "red" states.

"When we first started, Republicans bristled at the idea of discussing this," since it seemed to imply that George W. Bush's presidency was illegitimate, Koza said. As memories of 2000 faded, that attitude has softened a bit lately, with GOP-controlled chambers in Arizona and Oklahoma passing NPV. But Koza said Tuesday night's results could once again stiffen GOP opposition to the idea,

Some conservatives see no need for reform. "Our system for electing a president has worked pretty well," Brad Smith, a Republican former Federal Election Commissioner wrote in a 2008 paper opposing the NPV campaign. "There is no real case being made that it will work better if changed — only that it will look nicer if one subscribes to one particular vision of how democracies should work."

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Others go further. Tara Ross, a conservative activist and the author of the 2004 book "Enlightened Democracy: The Case for the Electoral College," thinks that the system ensures candidates seek votes not just from the most populous areas but from across the country as a whole. Without it, Ross has said, "we could see the end of presidential candidates who care about the needs and concerns of people in smaller states or outside of big cities."

Of course, the current system is worse in that regard, since it limits campaigning to a handful of swing states. But Ross argues that the Electoral College has another benefit: thwarting majority rule. "The Founders had no intention of creating a pure majority-rule democracy," Ross has said. "In a pure democracy, bare majorities can easily tyrannize the rest of the country."

It's not clear how letting the president sometimes be the candidate who got fewer votes protects political minorities. And that's not at all why the Founders created the Electoral College. Still, the idea did emerge out of a similar distrust of majoritarian democracy.

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The Founders didn't think ordinary people — even the white male property owners who were the only ones allowed to vote — were informed or responsible enough to choose the president. (Letting them do so, said Virginia's George Mason, would be like referring "a trial of colors to a blind man.")

So they created a double buffer. State legislators would choose presidential electors, who would be "most enlightened and respectable citizens," as John Jay put it. Then, these elites would come together at an Electoral College and use their superior wisdom and intellect to decide on a president.

But electors soon began to run on party slates, pledging to rubber-stamp their party's nominee rather than use their own independent judgment. And almost all states soon let voters rather than lawmakers choose the electors. In this way, the system became something close to democratic.

But because states don't award their electoral votes proportionately to the popular vote, it still left us with the problem that arose again Tuesday — that the candidate who gets fewer votes to be elected.

In other words, the Electoral College has often fulfilled the Founders' goal of acting as a check on the popular will — but not at all in the way they intended.

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