Question from a young woman: If Hillary Clinton got more votes in the Nov. 8 election than Donald Trump — approximately one million more, according to CNN — why is Trump the president-elect?
Logical question. It is also a constitutional law question.
For offices from school board to Senate, the candidates with the largest number of votes win. But not in presidential elections. Why not? Because of the Electoral College.
The electoral college traces to 1787, when delegates assembled in Philadelphia to draft a constitution. The process bogged down in a dispute over whether the president should be elected by Congress or by a vote of qualified citizens — at the time, qualified citizens were generally white male property owners.
The compromise solution that allowed the delegates to move forward was Article II of the Constitution, which says, "Each state shall appoint ... a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the Congress."
Electors would meet in their states, vote for two persons and send the results to the U.S. Senate. The person who received the most votes would be president; runner-up, vice-president.
The founding fathers' reasoning was that state loyalties could make it difficult to elect a candidate with national prestige. The federal Election Assistance Commission says the founders concluded that if they required a candidate to win states instead of just popular votes, he would be more likely to have support outside his home state.
The process has changed over the years with use of the popular vote in the states as the vehicle for choosing electors. But the president is still chosen by the electors.
This year, Clinton won 20 states and Washington, D.C., netting her 232 electoral votes; Trump won 30 states, gaining 306 electoral votes. The Washington Post reported Nov. 11 that the election was effectively decided by 107,000 voters in Michigan, Wisconsin and Pennsylvania. If those close races had gone to Clinton, with their 46 electoral votes, she would have won, the newspaper calculated.
This year's election marked the fourth time in history a presidential candidate has won the popular vote, but lost the election. All have been Democrats. In 1876, Samuel Tilden lost to Republican Rutherford B. Hayes; in 1888, Grover Cleveland lost his bid for a second term to Republican Benjamin Harrison, and in 2000, Al Gore lost to Republican George W. Bush.
More than 700 attempts have been made to reform or abolish the Electoral College. But making the change is difficult because of the procedure required to change the constitution. Congress would have to propose amending the section of the constitution that established the electors by a two-thirds majority or two-thirds of the states would have to call a constitutional convention to make the change.
In Maryland, voters in presidential elections are actually voting for a slate of electors chosen by the political parties. This year, Clinton won approximately 1.5 million votes, Trump 873,000. But Trump does not get a proportionate share of the state electoral votes. The winner of the popular vote gets all 10 of Maryland's Electoral College votes.
Donna Engle is a retired Westminster attorney. Reach her with questions or feedback at 410-840-2354 or denglelaw@gmail.com. Her column, which provides legal information but not legal advice, typically appears on the second and fourth Sunday each month in Life & Times.
