IN THE NEWS: Is the Electoral College Doomed? Let’s hope not. Professor Allen Guelzo discusses the future of the Electoral College (via Weekly Standard)
Every four years we elect a president. And every four years someone emits a squeak of protest that the method we use for electing presidents under the Constitution—the Electoral College—is unfair, undemocratic, antiquated, or unpopular and should therefore be eliminated. Most of the time, this is no more than a squeak, since in all but five presidential elections, the Electoral College has ratified the choice of the nation’s voters. When it doesn’t, the squeak is heard a little more loudly, but usually subsides after Inauguration Day.
Some of those squeaks were heard early in the nation’s history, after the devious Aaron Burr in 1800 polled the same number of electoral votes as the man he was supposed to be supporting as the presidential candidate, Thomas Jefferson, and tried to use that as a way to nudge Jefferson aside. The Twelfth Amendment fixed that, and the squeaks receded, until the election of 1824, when none of the presidential candidates won a majority of electoral votes, and the election had to be decided in the House of Representatives (which gave us President John Quincy Adams). In 1860, Abraham Lincoln polled only 39 percent of the popular vote, but won a whopping majority in the electoral vote-count. That, just by itself, would have become a point of argument had the nation not had a lot more volatile things to argue about—civil war, for instance. The elections of 1876 and 1888 also generated squeaks about the inequities of the Electoral College. But it was not until after the razor-thin victory of Richard Nixon in 1968 that a serious effort emerged within Congress to abolish the Electoral College, proposed in 1969 by Rep. Emanuel Celler and Senator Birch Bayh. Neither this legislation nor a 1977 proposal sponsored by Bayh with backing from President Jimmy Carter made it out of Congress.
This time, it’s been different, and it may signal the doom of the Electoral College in the not-too-distant future.
The reason it’s different is because the 2016 election seems like a genuine aberration. What alarmed Birch Bayh in 1977 was that Jimmy Carter’s popular margin of 1.7 million votes could easily have been erased by a change of just 25,000 votes in Ohio and Mississippi. In 2016, Bayh’s nightmare came true. Hillary Clinton earned a 2.86-million vote plurality over Donald Trump across the country. (Notice that this was a plurality; Mrs. Clinton received only 48.2 percent of the overall popular vote.) But she ran up the score in a limited number of densely populated (and densely Democratic) points on the map. This allowed Donald Trump to sweep up the electoral votes in far-more-numerous but less densely populated (and less densely Democratic) areas elsewhere. This gave him a sizable Electoral College majority of 304 to 227—larger than the Electoral College majorities of Nixon, George W. Bush, Carter, and even John F. Kennedy.
So what has usually been a squeak is now a sustained howl. Hillary Clinton herself took the opportunity of an interview with CNN’s Anderson Cooper on September 14 to declare that the Electoral College “needs to be eliminated.” She has been joined by Tom Perez, the chair of the Democratic National Committee, who blasted the Electoral College as “not a creation of the Constitution” and by a Democratic former Labor secretary, Robert Reich, who has called upon Americans to “abolish the Electoral College” or at least “make the Electoral College irrelevant.” Even Barack Obama, in his last presidential news conference, described the Electoral College as “a vestige . . . a carryover from an earlier vision of how our federal government was going to work.” There’s a good chance that the next Democratic president will make the substitution of a direct popular vote for the Electoral College a major initiative.
Which will not, as it happens, be a very good democratic idea. For one thing, the Constitution actually stipulates only one way to elect presidents, and that is the Electoral College. There is no provision for a popular vote, although many people assume there is. Eliminate the Electoral College (as it appears in Article Two of the Constitution) and it would then be necessary to replace it with an amendment detailing the nature and conditions of a national popular vote. Given the complexities of federal election laws, the result could be an amendment longer than the rest of the Constitution; or it could be a quick fix—“Congress shall have authority to pass appropriate legislation”—which will generate political conflict more acrimonious than anything we’ve seen in the past century.
Of course, it might be possible to slip past the acrimony through something like the National Popular Vote Interstate Compact, an agreement among states that pledges state electors to cast their votes for whichever presidential candidate wins a national popular majority, rather than just a majority in their state. But the NPVIC has been endorsed by only 11 states (all of them Democrat-blue) and the likelihood is slim that the Republican-dominated legislatures of the other states will rise to this suggestion. There is also some question whether the NPVIC itself would be a violation of the Article One section that prohibits states from entering “into any Agreement or Compact with another State” without congressional approval. Above all, the NPVIC is a compact, not a law; it has no enforcement mechanism, so even the state legislatures that signed up for it enthusiastically could decide at the last moment not to cooperate after all.
Abolishing the Electoral College also assumes that there is only one democratic way to elect a president, and that is by a national popular majority. But if that were true, then logically the only democratic way to make national laws would be by a national majority, too. Why, in that case, have a Congress? The answer, of course, is that democracy works best in slow motion. The virtue of a democracy is that every citizen is assumed to have an equal competence for government; the flaw of a democracy is that not every citizen acts competently. Demagogues can create urgencies over miserable issues that carry away even the best citizens. We would not, after all, want to make legalized slavery a matter of simply counting the number of hands willing to endorse it at some evil moment. The genius of American democracy is how it breaks down the decision-making process into checks and balances, and (as Madison illustrated in Federalist No. 10) divvies up political power among various sources (like the executive, legislative, and judicial branches).
The Electoral College is a particularly good example of how that genius works. It takes the election of the chief executive officer of the republic and makes it a deliberation among the states (and their electors), and not just an auction at the county fair. The concern of the Founders in the Constitutional Convention was that direct election by the people might give a president Caesarian illusions that he had the authority to override Congress in the name of the people. The countervailing solution proposed in the convention was to have the president elected by Congress—only to have the convention realize that this would merely reverse the polarity and make the president the puppet of whatever majority in Congress had elected him. The Electoral College laid out a middle path: have the states elect the president, giving each state a number of electors equal to its representatives and senators in Congress.
We are, after all, a federal union, in which the states that form that union have a say in how it is governed, fully as much as the national body of voters and the federal administration in Washington. Eliminating the Electoral College would change an enormous part of that make-up and might not bode well for the survival of the others.
The Electoral College may not be the most elegant idea of the Founders; but it was certainly not the worst, and they devoted more attention to it than to any other single issue in the Constitution. Before we begin messing with it in the name of democracy, let us—in the name of real democracy—hesitate, and deliberate, and as citizens.