Kate Shaw writes:

John Eastman. Rudy Giuliani. Donald Trump himself.

These people all bear some responsibility for the events of January 6, 2021. But there is another contributing factor—an institution, not a person—whose role is regularly overlooked, and that deserves a focus in the ongoing January 6 committee hearings: the Electoral College. The Electoral College isn’t responsible for President Trump’s efforts to remain in office despite his clear loss. But it was integral to Trump’s strategy, and it has everything to do with how close he came to success.

Many Americans understand that the country’s anachronistic system of presidential selection, part constitutional and part statutory, can sometimes produce a winner who does not receive the most votes nationwide. In 2016, Hillary Clinton won the popular vote by approximately 3 million, but lost in the Electoral College 304–227. Sixteen years earlier, Al Gore won 500,000 more votes than George W. Bush nationwide, but Bush prevailed in the Electoral College 271–266 after the Supreme Court functionally awarded him Florida’s electoral votes. And even without Trump’s machinations, the 2020 election came dangerously close to producing yet again a president who did not win the national popular vote. Joe Biden won approximately 7 million more votes than Trump, and prevailed in the Electoral College 306–232, but just 44,000 additional Trump votes in Arizona, Georgia, and Wisconsin could have resulted in a 269–269 tie in the Electoral College. If that had happened, the House, voting by state delegation, would almost certainly have anointed Trump president despite his second popular-vote loss.

But there’s a problem with the Electoral College that’s distinct from the fact that it sometimes selects a winner who does not receive the most votes nationwide, and from the way it creates a political process that overvalues the concerns of voters in an arbitrary subset of states, increasing polarization, dysfunction, and division. (I elaborate on these dynamics in a recent essay in the Michigan Law Review, as does Jesse Wegman in the book that’s the subject of my essay, Let the People Pick the President.) The problem is this: The Electoral College today is dangerously susceptible to manipulation. Indeed, as 2020 showed, the complex process through which a candidate becomes president contains a number of postelection opportunities to contest or undermine the results of an election—and to do so for reasons purportedly having to do with law and legal process. [Continue reading…]