A dangerous virus lurks in our republican democracy. It’s the electoral college. If you doubt this, please read the transcript of the Supreme Court oral argument last week in a case about whether electors can be bound to support the candidate to whom they’re pledged.
[See VoxFairfax, March 23, 2020, Just Count Up All Votes for President and See Who Won! (https://wp.me/p9wDCF-1cZ)]
The justices seemed genuinely flummoxed because our system of electing the president in no way resembles what the Founders had in mind — and they all know it.
The 12th Amendment changed things in 1804 after the original system blew up in the election of 1800. States took it upon themselves to move toward greater democracy by prescribing that members of the electoral college would be elected by popular vote, not by state legislatures, as the Constitution envisioned. By 1828, every state except South Carolina had delegated the choice of electors to the people. The democracy-skeptics of the Palmetto State finally went along after the Civil War.
Our system of electing the president in no way resembles what the Founders had in mind — and [the justices know it]…. All the claims about the electoral college reflecting the “wisdom of the Founders” and what they had in mind are pure rubbish.
So all the claims about the electoral college reflecting the “wisdom of the Founders” and what they had in mind are pure rubbish. The Founders’ design failed, which is why it was changed just 16 years after the Constitution was adopted. And the states’ shift to the popular vote for electors so fundamentally altered the original scheme that it amounted to creating a new system in the garb of the old one.
The case before the Supreme Court makes plain the absurdity of how we choose our president. The entire presidential campaign is waged on the premise that the people decide. And victors inevitably claim to be “the people’s choice” — even if they lose the popular vote. Consider the letter last October from White House counsel Pat Cipollone denouncing the House impeachment inquiry. Cipollone accused the House of trying to “overturn the results of the 2016 election and deprive the American people of the president they have freely chosen.”
It’s easy to envision a scenario this year in which Trump loses the popular vote by 5 million to 6 million — or even more — yet ekes out a two-vote margin in the electoral college by hanging on to every electoral vote he won in 2016 except for those of Pennsylvania and Michigan.
Well, the electoral college chose Donald Trump because he carried three key states by a combined total of 77,744 votes. But “the people” nationwide gave Hillary Clinton nearly 2.9 million more votes than they gave Trump. And it’s easy to envision a scenario this year in which Trump loses the popular vote by 5 million to 6 million — or even more — yet ekes out a two-vote margin in the electoral college by hanging on to every electoral vote he won in 2016 except for those of Pennsylvania and Michigan.
And you think we’re bitterly polarized now?
The case before the court involves three electors from Washington state who were fined $1,000 after they cast their electoral votes for Colin Powell, rather than Clinton, for whom the state’s voters had cast their ballots. Also involved is an elector from Colorado who was replaced after he said he would vote for former Ohio Republican governor John Kasich rather than Clinton. All were part of a failed movement to incite an electoral college rebellion against Trump.
Justices Samuel A. Alito Jr. and Brett M. Kavanaugh both raised the possibility of “chaos” if electors were free to vote as they please. Alito sketched out a plausible scenario “where the popular vote is close and changing just a few votes would alter the outcome or throw it into the House of Representatives.” Yes, the House decides when no candidate wins an electoral college majority — but in picking the president, each state has one vote, meaning Wyoming would count equally with California.
At the risk of mentioning a country about which President Trump is sensitive, we really are playing Russian roulette with our democracy.
In the case before the high court, the justices will have a hard time applying the concepts they usually lean on. “Originalism” is a deeply flawed jurisprudential theory, but even fervent originalists would wonder how to weigh precisely what the Constitution says against the country’s practice for 192 years.
This only underscores the grave risk to our experiment in self-government we continue to run by allowing the electoral college, in Cipollone’s language, to “deprive the American people of the president they have freely chosen.” To be a county sheriff or a state treasurer, you need to win the most popular votes. The presidency should be held to the same bracing democratic standard.
On the narrow question, denying states the ability to require electors to support the candidate to whom they are pledged would, as Kavanaugh said, “potentially disenfranchise voters in the state.” When they cast their ballots in November, Americans will, on current form, choose among Trump, former vice president Joe Biden and various third-party candidates. I’d hazard that 99.999 percent of the electorate is clueless about the identity of the electors entrusted to convey their vote.
And this only underscores the grave risk to our experiment in self-government we continue to run by allowing the electoral college, in Cipollone’s language, to “deprive the American people of the president they have freely chosen.” To be a county sheriff or a state treasurer, you need to win the most popular votes. The presidency should be held to the same bracing democratic standard.
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