We are told by the mass media that this election is too close to call right now, very few votes separate the candidates in several “key” “battleground” states. It is not really that close an election, one candidate is about 4,000,000 votes behind the other.

It is only “too close to call” because of a brilliant device, the Electoral College, created, in large part, to preserve the Great Compromise with slaveholders in less populace states (at the time slaves were not considered humans, though a political deal decreed slave men counted for 3/5 of a man — recall the Three-fifths Compromise — for purposes of representation in Congress and Electoral College votes. Slave majority states like South Carolina got a great boon from this deal.). The Electoral College keeps the final decision about the presidency out of the hands of the riffraff, particularly the descendants of former slaves. It should be gone, for many reasons, but it is still the law of the land, as the Framers designed it as part of their Great Compromise with the beneficiaries of the Peculiar Institution (presumably, according to a pious Originalist like Antonin Scalia or Amy Coney Barrett, after direct consultation with the Old Testament God and Jesus Christ Himself).

The night of Election Day, Heather Cox Richardson laid out a bit of our history of the best, most accomplished and most well-born of us keeping the final say in our democracy out of the hands of the crude, dumb majority, entrusting democracy, instead, to the best people, our most refined people.

I have to admit I was not surprised to learn that quintessential American hypocrite Thomas Jefferson, Author of Liberty and enlightened Renaissance Man, played an outsized role in creating an ugly, unintended invitation to future tyranny. Too soon to know if Trump’s lawyers will, against all the odds, find a way to use the Original Intent of the Framers as the last word on who wins and who loses the presidential sweepstakes, no matter how many votes are cast. The facts might make you scream, but, today, a little screaming is probably good for you.

In 2018, for example, people in Florida voted overwhelmingly to restore voting rights to felons. This would have added about 1.5 million people back to the rolls, many of them African Americans. But the Republican legislature passed a law saying the former felons could not vote unless they had paid all their court fines and fees. A federal judge said that law was essentially an unconstitutional poll tax, but an appeals court overturned that decision. Five of the six judges who upheld the law were appointed by Trump.

Today, as well, there are problems with ballots. This summer, the Postmaster General, Louis DeJoy, a major fundraiser for the Republican Party and a key ally of Trump, changed the rules for mail delivery, slowing it significantly. It turns out that more than 300,000 ballots were checked into the USPS mail system but not checked out of it. U.S. District Judge Emmett G. Sullivan ordered the USPS to sweep 27 processing centers for the missing ballots, but USPS officials refused, saying they already had a system in place and that changing it would be disruptive. Sullivan has called the parties in tomorrow morning to discuss the issue.

The problem of voter suppression is compounded by the misuse of the Electoral College. The Framers originally designed delegates to the Electoral College to vote according to districts within states, so that states would split their electoral votes, making them roughly proportional to a candidate’s support. That system changed in 1800, after Thomas Jefferson recognized that he would have a better chance of winning the presidency if the delegates of his own home state, Virginia, voted as a bloc rather than by district. He convinced them to do it. Quickly, other state officials recognized that the “winner-take-all” system meant they must do the same or their own preferred candidate would never win. Thus, our non-proportional system was born, and it so horrified James Madison and Alexander Hamilton that both wanted constitutional amendments to switch the system back.

Democracy took another hit from that system in 1929. The 1920 census showed that the weight of the nation’s demographics was moving to cities, which were controlled by Democrats, so the Republicans in control of the House of Representatives refused to reapportion representation after that census. Reapportioning the House would have cost many of them their seats. Rather than permitting the number of representatives to grow along with population, Congress then capped the size of the House at 435. Since then, the average size of a congressional district has tripled. This gives smaller states a huge advantage in the Electoral College, in which each state gets a number of votes equal to the number of its senators and representatives.

These injuries to our system have saddled us with an Electoral College that permits a minority to tyrannize over the majority. That systemic advantage is unsustainable in a democracy. One or the other will have to give.

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