Electoral College? Time to Strip it of its Accreditation
Let’s say you’re part of a committee to design a new Presidential-election system and you’ve been asking people to submit ideas. At that point someone walks in and proposes a system that resembles the current Electoral College system. The committee members look at each other, trying to control themselves.
“Excuse me, sir, but are you saying that the value of the popular vote in each state would be different and that the votes in some states might be worth almost three times as much as others?”
Yes, but . . .
“And a candidate could end up getting all of these – what do you call them, ‘Electors’ – whether he wins the state by just one vote or one million votes?
That’s true, however . . .
“And you’re saying that the number of Electors for each state is allocated by a census that may be 10 years old?”
Okay, but let me explain . . .
“I’m very sorry, sir, but this committee is only considering serious proposals.”
If it were presented today, the current Electoral College system wouldn’t pass the laugh test. It is so blatantly unfair to so many people that it is hard to imagine that anyone would even seriously consider it. Yet that’s what we’re living with—a centuries’ old curse that seems very difficult to exorcise. If you look around to see how we ended up in this historical cul-de-sac, the ghosts of Alexander Hamilton and James Madison immediately pop up and say, “Don’t blame us! That’s not what we intended.”
In truth, it’s hard to know who deserves the blame. The framers created a process for a collegial selection of the President by political insiders, but somewhere along the line it became a distorted version of popular voting. It’s now become a system that’s both irrational and unpredictable. At times it reflects the actual popular vote for President, but at other times it can just as easily give the presidency to a candidate with a minority of the votes.
The Electoral College is a constitutional system in the sense that some—but not all—of the mechanism for its operation is found in the Constitution. But the most dysfunctional parts come from changes that were made by state legislatures over many years without bothering to amend the Constitution. As a result, the Electoral College has evolved into a system that is profoundly unconstitutional. The current Electoral College is so fundamentally different from the original system that it cannot be reconciled with the intention of the framers. But more than that, it is clearly unconstitutional when measured against the later Amendments to our founding document. The Supreme Court has ruled that the 14th and 15th Amendments require every citizen to have an equal vote, but the rule of “one person, one vote” is completely violated in the most important election of all—the vote for President.
Changing the Electoral College presents unique problems, because there is a misconception that nothing can be done short of a major constitutional overhaul. It’s easy to see how that perception has grown. The structure of the Electoral College system—with its fractured constitutional history—creates an unprecedented problem for the American political system. Even though the need for change is compelling and obvious, the mechanism for change seems daunting and obscure. The process is complicated enough that it has a tendency to freeze into inaction those who might work for change. The popular will is there to push for change, but it’s hard to find the right door to push against.
Every strategy to change the system should be pursued, and it may be that success will come from some combination of different efforts. A successful lawsuit on
one part of the system or in one state may prompt a political effort in a related direction somewhere across the country. A change in the political climate may open the door for a judicial solution. The task is almost dizzying, because the theory pursued by one group may be drastically different from that of another. And most of the solutions that have been suggested would be fought out on a state by state basis, and this makes it difficult to find a strategy that might empower a political action group on a national level. Finding the inflection point—the crucial spot where public opinion and public pressure can make a difference— is probably the key to success.
Defenders of the current Electoral process say that the only path to change is through a Constitutional amendment. But they say that with a certain smugmess, because they know that route faces daunting odds. A Constitutional Amendment requires a two-thirds vote of both houses of Congress and ratification by three-fourths of the states. Those are difficult numbers to achieve for any amendment, but they are even harder for the Electoral College. Some of the states that would have to ratify it would actually lose some of the unfair voting power they now enjoy. In the current polarized atmosphere, it’s hard to see that happening.
The National Popular Vote Project (nationalpopularvote.com) is trying to circumvent that problem by pushing for an interstate compact that would bind each signatory state to cast its Electoral Votes for the winner of the national popular vote. It would only go into effect when states representing a majority of the Electoral Vote (currently 270 out of 538) sign on to the pact. Right now they’ve signed up states with 172 Electoral Votes, and they need states with 98 votes or more to put the pact into effect. This is a major effort that everyone should support.
Beyond that, there are several ways to attack the current Electoral College system through the court system. Voting-rights organizations, state attorneys-general, and ordinary voting citizens can mount a constitutional challenge, arguing that that the current system neither complies with the original requirements of the Constitution nor with the right to an equal vote guaranteed by 14th and 15th Amendments. The challengers would have some strong constitutional arguments, and they should be encouraged in their efforts by everyone concerned with changing the system. But these cases are likely to be fought in the courts on a state by state basis with no real chance for public opinion to play an active role.
The 2018 Congressional elections have opened up another avenue for public activism on this issue. Those seeking to change the Electoral system should seize this new opportunity.
If the House of Representatives were to put its weight behind this issue—probably through the appointment of a House Select Committee—it could both help in the process of reform and become the focal point for mobilizing public opinion. The House has shown a new enthusiasm to tackling difficult issues, and its effort on this issue could make the difference.
Both the 14th and 15th Amendments give Congress the authority to “enforce” the voting-rights guaranteed by those two Amendments. Although the House of Representatives does not have the power to eliminate the Electoral College system on its own, a House investigation into the abuses and distortions of that system could have a dramatic effect on the debate. An open, public discussion about the distortions of our current Elector system would keep the issue in front of the public and help energize the reform effort. Moreover, the findings produced by such a hearing could provide valuable arguments for a successful legal challenge. The adoption of fair election standards by Congress could help focus public mobilization on the issue, and even a simple resolution of support for ongoing reform efforts could make a difference. People could all make their voices heard at the same time on the same issue—in their local Congressional office.
The Next Step
Petition to the U.S.
House of Representatives
The House of Representatives should appoint a Select Committee to find and implement ways to neutralize the distortions caused by the current Electoral College and secure for all citizens the right of “one Person, One Vote” in Presidential elections.
The current version of the Electoral College is a distortion of the presidential selection process envisioned by the framers of the Constitution, and it interferes dangerously with the popular vote for President. The current Electoral system gives voters in some part of the country far greater voting power than others, results in large number of votes not being counted, discriminates against minority voters, discourages voter turn-out, and opens the door to outside interference and voter suppression in Presidential elections. The Electoral College is an historical relic that no longer serves any legitimate purpose.
Congress has the power under Section 5 of the 14th Amendment and Section 2 of the 15th Amendment to enforce the fundamental right of every citizen to an equal vote. The House of Representatives has the power and moral authority to take the lead in protecting the right of Americans to an equal vote in the selection of the President.
The House of Representatives should establish a Select Committee to take the following actions, among others:
The Petition on the preceding page has been posted on Moveon.org. If you wish to sign you name in support of the Petition, please go to http://tinyurl.com/ybf92sn9