A comprehensive look at the events of the 2020 election, Trump’s loss, his efforts to reverse the results of the election, the attack on the Capitol on January 6, 2021, and Trump’s second impeachment for incitement of insurrection. Addresses the reasons for the second acquittal and their implications.

It is not possible to argue that the framers wisely created the electoral college and provided a sound basis for selecting the president in the twenty-first century. The electoral college does not work at all as the framers anticipated. Electors rarely exercise discretion and are condemned when they do. Instead, they are agents of political parties, which did not exist in 1787. The House has not selected the president since 1824. In addition, most of the motivations behind the creation of the electoral college are simply irrelevant today. Legislative election is not an option, there is little danger that the president will be too powerful if directly elected, voters have extraordinary access to information on the candidates, there is no justification at all for either electors or state legislatures to exercise discretion in selecting the president, defending the interests of slavery is unthinkable, and the short-term pressures have long dissipated. Those delegates who wanted electors to exercise independent judgment or be selected by state legislatures would soon be disappointed, and there is no support—and no justification—today for either option. In addition, the broad thrust of constitutional revision over the past two centuries has been in the direction of democratization and majority rule.

The electoral college is an extraordinarily complex mechanism for selecting a president. State and national laws drawn to implement the electoral college system have only added to the complexity—and the risks of a malfunction. The allocation of electoral votes among the states may not accurately represent the citizens resident in those states. Electors are not wise elites, and they may make errors or violate their charges when casting their votes. The constitutional provisions and laws required to implement the electoral college are open to multiple interpretations and may well involve Congress and the courts in partisan wrangling over which candidate won a state and which electoral votes to count. Their decisions may misrepresent the public’s wishes. Donald Trump’s attempts both to create alternative slates of electors and to reject certified electors from states won by Joe Biden could only occur because there was an electoral college. The absence of a right to vote in presidential elections is certainly inconsistent with our notions of democracy. Similarly, the selection of the ultimate choosers of the president—electors—by party committees is contrary to our notions of transparency and popular participation. Allowing a state legislature to choose the winning slate of electors of a state makes a mockery of popular selection of the president.

The electoral college violates political equality. It is not a neutral counting device. The use of the unit-vote system, the allocation of electoral votes among the states, differences in voter turnout among the states, and the vagaries of the size of the U.S. House of Representatives allow the electoral college to favor some citizens over others, depending solely upon the state in which voters cast their votes for president. As a result, popular votes do not directly translate into electoral votes, and the candidate receiving the most popular votes may lose the election, as has happened twice in the twenty-first century. Thus, the electoral college is not just an archaic mechanism for counting the votes. It is an institution that aggregates popular votes in an inherently unjust manner. In addition, electors may violate their oaths to support their party’s candidates, and many U.S. citizens are disenfranchised.