A Defense of the Electoral College in the Time of Trump

70 Pages Posted: 12 Apr 2019

See all articles by John Yoo

John Yoo

University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace

Date Written: March 28, 2019

Abstract

In the 2016 Presidential Election, Donald J. Trump lost the popular vote by nearly 3 million votes but still secured victory in the Electoral College. The second election in the last 16 years to yield a President without a popular majority has renewed efforts to alter or abolish the Electoral College system. Some legal scholars suggest that the Electoral College lacks legitimacy because the Framers designed it to advantage the slave states.

This Essay responds to these criticisms of the Electoral College by providing a historical perspective on the Framers’ decision-making. The drafting and ratification process demonstrate that the Electoral College was not designed to be “racist,” and that it was a conscious mix of federalism and majoritarianism that provides benefits today. The Essay cautions against an overreaction to the 2016 election despite the Electoral College’s failure to filter out a candidate such as Trump. It argues 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 present a higher risk of danger of tyranny by the majority.

Suggested Citation

Yoo, John Choon, A Defense of the Electoral College in the Time of Trump (March 28, 2019). Pepperdine Law Review, Vol. 46, No. 4, 2019. Available at SSRN: https://ssrn.com/abstract=3361722

John Choon Yoo (Contact Author)

University of California at Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States
510-600-3217 (Phone)
510-643-2673 (Fax)

American Enterprise Institute ( email )

1789 Massachusetts Ave., N.W.
Washington, DC 20036
United States

Stanford University - The Hoover Institution on War, Revolution and Peace ( email )

Stanford, CA 94305-6010
United States

HOME PAGE: http://https://www.hoover.org/profiles/john-yoo

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