“Be it resolved,” writes Annie, “that since this is my blog, I can talk about the Electoral College without giving the arguments in its favor.”
Those who disagree are free to do so with your comments.
There’s always a lot of talk about getting rid of the Electoral College, and then we get the litany of reasons why it’s needed. Such a situation brought me to this post.
It all started, as I find various topics come to mind these days, with a tweet. I had tweeted: “It’s time we get rid of the damn Electoral College.”
That brought about a number of positive comments and retweets, as well as some objections. Fine. But one person who disagreed observed (I’m quoting verbatim):
“It may not be completely proportional but there needs to be limits otherwise tyranny of the majority will happen.”
Tyranny of the majority? OK, thought I, this is a topic I need to address in my little blog.
We know that the Electoral College is written in the Constitution. It was a compromise between the founders who wanted the president to be elected by Congress and those who preferred he be chosen by a popular vote of “qualified citizens.”
You’ll recall who those folks were, right? Male landowners. That decision had already been made in determining how many members of Congress would be selected under the “three-fifths compromise”: slaves, though they did not of course have a vote, were counted as three-fifths of a person in determining the total population.
According to law professor Wilfred Codrington III, writing in The Atlantic:
“Commentators today tend to downplay the extent to which race and slavery contributed to the Framers’ creation of the Electoral College, in effect whitewashing history: Of the considerations that factored into the Framers’ calculus, race and slavery were perhaps the foremost.”
There were other concerns as well—all of them sounding rather quaint in our current situation:
“Fearful that the president might fall victim to a host of civic vices—that he could become susceptible to corruption or cronyism, sow disunity, or exercise overreach—the men sought to constrain executive power consistent with constitutional principles such as federalism and checks and balances.
“When the idea of a popular vote was raised, they griped openly that it could result in too much democracy. With few objections, they quickly dispensed with the notion that the people might choose their leader.”
Too much democracy, indeed. I’d love to imagine the Framers’ ghosts hovering over this election. Anyway, we move on to the heart of the issue: power.
Southern delegates opposed the direct election because, as James Madison wrote:
“There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections.”
Employing the three-fifths compromise, the South’s congressional delegation gained 42 percent, so they chose the elector approach. The first evidence of how well it would work came in 1870, when it gave the advantage to Thomas Jefferson, a slaveholder, over John Adams, the incumbent president and an abolitionist.
I’m not going to go into more historic depth on this issue here, but I found The Atlantic article most enlightening. At this juncture, when we’re finally reexamining the systemic racism in our institutions, it seems to me imperative that we take a closer look at the Electoral College–for that reason and others.
One side note of interest about the Electoral College is offered by Jesse Wegman in The New York Times, who writes in support of another approach that I’ll describe shortly.
Wegman includes Donald Trump’s view of the matter, expressed on election night, 2012, when he feared that Mitt Romney would get a higher popular vote than President Obama but still lose the election. Trump tweeted:
“The Electoral College is a disaster for a democracy.”
Since two of the five elections in which the Electoral College winner had fewer popular votes than the loser have occurred since the year 2000, and the most recent has brought our democracy to the brink, I believe it’s incumbent upon us to do something about the issue ASAP.
People are growing increasingly unhappy with the fact that just a small number of swing states get nearly all the candidates’ attention—both before the election and after.
It’s worth noting that the arguments against the Electoral College have been made by several bipartisan organizations, such as The League of Women Voters and Common Cause. I’ve long thought of them both as we referred to them years ago: the “goo-goos”: for good government.
Common Cause succinctly described the problem:
“Two-thirds or more of Americans live in so-called ‘spectator states,’ which include large states like California and Texas, as well as 12 of the 13 least-populous states. Why? Because it doesn’t make sense for candidates campaigning to spend in states that are a guaranteed win or loss under the current system….We believe no American should be a spectator of democracy.”
But to remove the Electoral College via constitutional amendment is a slow and laborious process, as amending the Constitution should be. Fortunately, there is a legitimate workaround that can help us achieve equity much sooner.
Have you heard of the National Popular Vote (NPV) Interstate Compact? This ingenious effort is quite simple. As Common Cause describes it:
“Under the NPV compact, states agree to award their electoral votes to the candidate who wins the popular vote nationally. Because a candidate needs 270 electoral votes to win an election, National Popular Vote would kick in once states adding up to that 270 join the compact.”
Common Cause believes the impact will be that more people will be brought “into the fold” and we’ll be more likely to achieve “policies and plans that take everyone into account.”
The constitutionality of the NPV received quite a boost this year:
On July 6, 2020, a unanimous Supreme Court ruling (yep, you read that right) gave the states broad power over their electors when it determined that states could punish or replace “faithless electors”—individuals who were chosen by their parties to serve as the direct electors of the president but cast their ballots for someone else. The Court based its ruling on Article II, Section I of the Constitution.
I gleaned the following material from a Brookings blog post.
From Justice Elena Kagan’s decision (for 8 of the 9 justices):
“Article II, section 1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint. As [the Constitution says], each State may appoint elections ‘in such Manner as the Legislature thereof may direct….This Court has described that clause as ‘conveying the broadest power of determination’ over who becomes an elector.
“The Constitution is barebones about electors. Article II includes on the instruction to each State to appoint, in whatever way it likes, [its presidential electors]. The Twelfth Amendment then tells electors to meet in their States to vote for President and Vice President separately, and to transmit lists of all their votes to the President of the United State Senate for counting…That is all.”
(Justice Thomas cited the 10th Amendment as the basis for his vote in support of the decision, and Justice Gorsuch agreed with him.)
Thus, the Supreme Court has validated the underpinnings of the NPV.
Writes Barry Fadem on The Brookings blog:
“This clear reaffirmation of the power of states to appoint their electoral votes ‘in whatever way it likes’ supports The National Popular Vote Interstate Compact and Article II, section 1, upon which National Popular Vote is based.
“States have broad authority over their electors, and nothing in this case would suggest this plenary power would suddenly be limited if the states’ electors were awarded to the National Popular Vote winner.”
But is it realistic to think enough states will go along to make NPV a reality? Consider this:
Right now, 15 states and Washington, DC, are signatories to the Compact. Those in the Compact include four small states, eight medium-sized states, and three large states, as well as the District of Columbia.
They represent a total of 196 Electoral College votes. Once 74 more are secured, NPV becomes a reality.
Colorado, Oregon, New Mexico, and Delaware are the most recent to join, moving the success needle to 70% of goal.
This link provides the status of the National Popular Vote Bill in each state.
“In a political system made complicated by unlimited money, gerrymandered maps, and out-of-control lobbying, NPV is simple,” writes Common Cause. “Let’s finally embrace one-person one-vote and pass this simple and effective reform.”
No “tyranny of the majority” here. More like “the will of the majority—safe at last.”
What do you think? If you believe the NPV is a sound idea, please check out the above link to see the bill’s status in your state—and then encourage your state legislators to adopt it. If you disagree, please feel free to explain your reasoning.