In 1961, Estes Kefauver, the crusading Democratic senator from Tennessee, denounced the Electoral College as “a loaded pistol pointed at our system of government.” Its continued existence, he said, as he opened hearings on election reform, created “a game of Russian roulette” because, at some point, the antidemocratic distortions of the College could threaten the country’s integrity. Judging from Twitter’s obsessions, at least, that hour may be approaching. The polls indicate that Donald Trump is likely to win fewer votes nationally than Joe Biden this fall, just as he won fewer than Hillary Clinton, in 2016. Yet Trump may still win reëlection, since the Electoral College favors voters in small and rural states over those in large and urban ones. Last week, a new book by Bob Woodward revealed how Trump lied, in the early weeks of the pandemic, about the severity of the coronavirus, even though that put American lives at risk; the thought that a reëlected Trump might feel triumphantly affirmed in such mendacity is terrifying. But criticizing the Electoral College simply because it has given us our Trump problem would be misguided. His Presidency, and the chance that it will recur despite his persistent unpopularity, reflects a deeper malignancy in our Constitution, one that looks increasingly unsustainable.
James Madison, who helped conceive the Electoral College at the Constitutional Convention, of 1787, later admitted that delegates had written the rules while impaired by “the hurrying influence produced by fatigue and impatience.” The system is so buggy that, between 1800 and 2016, according to Alexander Keyssar, a rigorous historian of the institution, members of Congress introduced more than eight hundred constitutional amendments to fix its technical problems or to abolish it altogether. In much of the postwar era, strong majorities of Americans have favored dumping the College and adopting a direct national election for President. After Kefauver’s hearings, during the civil-rights era, this idea gained momentum until, in 1969, the House of Representatives passed a constitutional amendment to establish a national popular vote for the White House. President Richard Nixon called it “a thoroughly acceptable reform,” but a filibuster backed by segregationist Southerners in the Senate killed it.
That defeat reflects the centrality of race and racism in any convincing explanation of the Electoral College’s staying power. In the antebellum period, the College assured that slave power shaped Presidential elections, because of the notorious three-fifths compromise, which increased the electoral clout of slave states. Today, it effectively dilutes the votes of African-Americans, Latinos, and Asian-Americans, because they live disproportionately in populous states, which have less power in the College per capita. This year, heavily white Wyoming will cast three electoral votes, or about one per every hundred and ninety thousand residents; diverse California will cast fifty-five votes, or one per seven hundred and fifteen thousand people.
Electoral College abolitionists, knowing that the last successful constitutional amendment addressing the College was adopted in 1804, have in recent years embraced a clever workaround, called the National Popular Vote Interstate Compact. Fifteen states and the District of Columbia have passed bills containing identical language pledging to cast their electoral votes for the Presidential candidate who wins the most votes nationally. The jurisdictions in the compact currently have a hundred and ninety-six electoral votes among them, seventy-four short of the two hundred and seventy needed to bring the compact into effect, thereby guaranteeing that the candidate who wins the largest number of votes in the relevant constituency—the United States, not just the handful of “battleground” or “swing” states—wins the College and gets the job. If the National Popular Vote plan ever succeeds, it would elide some problems, such as the current system’s reliance on winner-take-all plurality voting, but it would fix the most egregious deficit: the undermining of one person, one vote.
The various arguments advanced for and against the Electoral College seem to outnumber the stars. A book issued by the group promoting the National Popular Vote plan runs a thousand pages, refuting no fewer than a hundred and thirty-one “myths” about the way we elect our Presidents. But the basic case for a national popular vote is simple and appealing. To be fair, the case made by supporters of the Electoral College also relies on a clear foundation: the role of federalism in the American experiment. Some who favor the status quo fear that a nationalized Presidential vote would also nationalize American politics and undermine states. In fact, the constitutional powers of state governments and the role of the Senate, whose membership advantages small states over large ones, would, among many other continuing features of federalism, insure that the United States remains a “consensus democracy,” in the phrase of the political scientist Arend Lijphart—that is, one in which, by design, we must grapple with divided power.
A few days after the 2016 election, Trump told Lesley Stahl, of “60 Minutes,” that he had “respect” for the Electoral College, but would “rather see it where you went with simple votes. You know, you get one hundred million votes, and somebody else gets ninety million votes, and you win.” Like so many of his statements, this one proved unreliable. And, as his supporters realized that he had become President because of the Electoral College, their preference for the institution hardened. In 2012, fifty-four per cent of Republicans and Republican-leaning independents favored replacing the College with a national popular vote, according to the Pew Research Center, even though George W. Bush, too, had lost the popular vote, in 2000. Today, only a third of them take that position. The National Popular Vote project relies mostly on the backing of Democrats and blue states; after Trump, it will not be easy to revitalize cross-party support. Yet a Presidential election decided by the popular vote might very well improve our rancid politics. A Republican Party with an incentive to compete for votes in California and New York, for example, might be less tempted by white nationalism.
Whenever the Trump years pass, our democracy, assuming that it endures, will face a major repair job. There will be new laws, one hopes, to prevent future Presidents from owning hotels down the street from the White House, and from withholding their tax returns, and from using the Justice Department as a personal law firm. To tear at the roots of Trumpism, however, will require much more. The Electoral College is a legacy of “distrust of the people,” as Kefauver put it, and an artifact of racial injustice. If we haven’t learned by now that it must go, what will it take? ♦
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The Case for Dumping the Electoral College - The New Yorker
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