How to Change the Electoral College

Justin Saint-Loubert-Bie
4 February 2020

 

I staffed the polls as a volunteer Election Officer because I wanted to see democracy in action. Instead, I got an intimate understanding of one of its greatest failures. Seated on a plastic folding chair, I scrolled through the exit poll results as they came in and watched the states on the map get colored in blue and red from right to left as the evening wore on at an agonizingly slow pace, feeling that I would never get to go home. So I was surprised at how suddenly it was all over.

 

Long after the sentimental ovations at the concession speech had faded, as blue and red balloons rolled around the floor of a deserted victory rally (the party having moved on to more rambunctious haunts), I was still signing people in, directing them to the voting booths, and squirming in that uncomfortable plastic chair.

 

If California’s vote hadn’t been a foregone conclusion, I imagine the nation would have waited for me to send the orange bag of “results cartridges” into the orange ballot bag to San Mateo to be processed. I did all of that anyway, but by the time I went home for the night, it hardly felt as if I had participated in an election worthy of the name.

 

The problem, of course, was the Electoral College. By this point, liberal frustrations with America’s peculiar system of choosing presidents is well known. But on the Road to 270, there was a road not taken, and it’s not too late to change course. Two current proposals may alter the character of American democracy forever. The first could be a big step towards fulfilling the democratic promise; the other, however, may place democracy in jeopardy.

 

 

The Problem with the Electoral College

 

Donald Trump is the wrong reason to hate the Electoral College. Only five presidents in American history have taken office without winning the popular vote. The fact that the last two GOP presidents have been elected this way leads many liberals to believe the system is fundamentally unfair. But more important than these outcomes, the Electoral College shapes how elections in this country are run.

 

Since effectively only certain “swing states” matter in the general election, presidential candidates will overwhelmingly campaign in those states, and on issues that voters in those states care about. In 2012, general-election campaign events were held in less than a quarter of all states, with only four states hosting some two thirds of those events.

 

Swing states’ voters not only hold an unfair advantage in deciding the ideological alignment of the nation, but also receive concrete material benefits as a result. As the National Popular Vote campaign has found, “battleground” states receive 7% more federal grants than “spectator” states, twice as many presidential disaster declarations, more Superfund enforcement exemptions, and more No Child Left Behind law exemptions. It is not entirely an exaggeration to say that our electoral system gives us every four years not a President of the United States, but a President of the Swing States. 

 

Perhaps unsurprisingly, swing states that receive these advantages are disproportionately white. Such racial disparities are disturbing in their own right. But they also mean that the Electoral College might be one of the reasons the Republican Party has managed to remain so white, despite that demographic’s declining relative share of the population over the years.

 

This matters because the Republican Party’s whiteness is a root cause of democratic decline in the United States, according to Steven Levitsky and Daniel Ziblatt, authors of How Democracies Die. As the Republican Party leadership sees their voter base shrinking, they have found a strategic advantage in undermining majoritarian democracy in order to stay in power, rather than adjusting their political message to appeal beyond certain white populations. This translates into voter suppression laws, partisan gerrymandering, and other nakedly undemocratic tactics.

 

The Electoral College was designed to keep power from the hands of the people because the authors of the Constitution were afraid of direct democracy. According to them, power should be vested in a small group of wise and educated—not to mention wealthy and landed—elites, who could think through things more rationally than the general public. A populist president swaying the masses, they reasoned, might try to make themselves king.

 

Tocqueville, for his part, also thought the Electoral College was a great idea. According to him, a smaller groups of voters empowered to choose the chief executive would be much more likely to reach a majority consensus than the untold millions. This was important because a decisive and majority endorsement of the president gave critical legitimacy to the incoming head of state in a time of national uncertainty.

 

But these original ideals quickly fell apart as states began offering “general tickets” filled with electors pledging to vote for a single candidate, creating the system we know today. Even though voters mark the name of the president they wish to elect on their ballots, they are actually voting for a suite of electors that have pledged to vote for the president that the majority of the people in their state chooses. Alexander Hamilton and James Madison sharply criticized this new practice, but the cat was soon out of the bag. By 1824, the majority of states had adopted the winner-take-all system, and it persists to this day in almost every state.

 

Following the election of Donald Trump, the idea of an independent Electoral College that can vote however it wants—as it was originally designed to do—can seem tempting. One could imagine the Electoral College inhibiting dangerous populism, acting as what Ziblatt and Levitsky have called a “gatekeeping” institution, which they believe necessary to halt contemporary threats to democratic government.

 

These sentiments, however, are what Sheri Berman has called the “pipedream of undemocratic liberalism”—the idea that things might be better if the easily excited rabble is held further from power. Though such feelings may have animated the Founders, it would be a mistake for liberals to be swayed by them in the wake of the 2016 election. As Berman explains, liberal progress—understood loosely as the expansion of freedoms the minority retains against the majority—only comes as part of a long process of expanding democratization. In other words, the best way to bolster liberalism is to bolster democracy.

 

 

The National Popular Vote Interstate Compact

 

Even though the majority of Americans have favored abolishing the Electoral College for as long as pollsters have been asking them (starting in the 1940s), attempts to amend the Constitution to this end have consistently failed. Thankfully, the National Popular Vote Interstate Compact (NPVIC) offers a novel solution to replace the Electoral College with the popular vote.

 

In 2001, Robert Bennett—professor of law at Northwestern University and ex-president of the American Bar Foundation—published a paper outlining a new mechanism to implement the popular vote through state power. Under this system, signatory states would be legally required to vote for the winner of the national popular vote, regardless of which candidate wins in those states. On its face, Article II of the Constitution seems to allow such a move. It states that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” (emphasis added).

 

By 2006, the National Popular Vote campaign had successfully introduced bills to sign the compact in six state legislatures. Membership ticked up over the years, before stalling in 2014. But while the “good years” of the Obama presidency may have tempered the quest for electoral reform, the 2016 election has reinvigorated the NPVIC with a steadily increasing membership since 2018.

 

The NPVIC already has 196 of the 270 Electoral College votes it needs to come into effect. Moreover, it has passed through at least one legislative chamber in several other states, which together control an additional 113 votes (a major increase from just 75 in December 2019). Should a sizable majority of them ratify the compact, the NPVIC could come into full force as early as 2024.

 

But it’s worth noting that the NPVIC has only passed in states where Democrats had no opposition to their legislative agenda. Democrats will need particularly impressive victories on the state level in both 2020 and 2022 if there is any hope of the compact coming into effect for the 2024 election. Of course, Republicans might also have a change of heart and start ratifying the NPVIC in red states, but they are hardly showing signs of pro-majoritarianism at the moment. Still, 2019 was an exciting year for the NPVIC, with a suite of new states signing or considering it, including a few swing states.

 

 

Baca v. Colorado Department of State

 

Meanwhile, another challenge to the Electoral College is making its way through the courts. But unlike the NPVIC, this one may actually undermine democracy rather than strengthen it.

 

In 2016, Colorado elector Michael Baca reneged on his state-mandated pledge to vote for Hillary Clinton, and was removed by the Colorado Secretary of State. Baca responded by suing the Colorado Department of State in federal court.

 

But the story actually starts earlier that year, when Harvard law professor Lawrence Lessig established the Electors Trust, an organization providing legal counsel to presidential electors considering whether or not to become “faithless electors.” Perhaps relying on Lessig’s activism, a record number of electors followed Baca’s lead and defected when it came time for them to vote. Lessig is now representing Michael Baca as his case makes its way through the courts.

 

The professor’s endgame is far from clear, so deciphering it requires a closer look at the potential effects that Baca v. Colorado Department of State might have. At its core, the case rests on a single question: can states compel its Electoral College delegates to vote for a certain candidate, even if they do not want to?

 

At first, the United States District Court for the State of Colorado answered in the affirmative. But in August 2019, the US Court of Appeals for the Tenth Circuit reversed the lower court’s ruling, handing a victory to Baca and Lessig. Since the Washington Supreme Court had previously ruled in favor of states’ rights to remove faithless electors, more than twenty states petitioned the Supreme Court to decide the matter once and for all. On January 17th, it accepted.

 

If the Court of Appeals decision holds, it may fundamentally change the character of future elections. As Electoral College splits become closer, Lessig believes, delegates might have the power to sway elections through their individual choices. Much better to settle the constitutionality of faithless electors before they flip an election.

 

And there is a good chance Baca could win. Remember, the Founders originally hoped electors would vote according to their conscience. And as Judge Carolyn Baldwin McHugh wrote in the majority opinion for the Tenth Circuit, “Constitutional provisions grant states the plenary power to appoint its electors. But once that appointment process is concluded, the Constitution identifies no further involvement by the states in the selection of the President and Vice President.”

 

Unfortunately, the original design of the Founders happens to be quite dangerous, as we saw above. Throttling democracy “for the good of the people,” even to prevent Trump from winning, is not a good thing. We may be headed for trouble.

 

To make things even worse, if Baca v. Colorado Department of State stands, it will seriously compromise the NPVIC, as well as any other state-level reform to the Electoral College. After all, if states can’t guarantee that all of their electors will vote for the winner of the national popular vote, it’s hard to see how the Compact could function as planned. The whole system relies on states being able to force their delegates to vote for the winner of the national popular vote.

 

But Baca v. Colorado Department of State was not meant to undermine the NPVIC. In fact, Lessig has advocated reforms to the Electoral College, including fractional proportional allocation of votes. According to this method, states allocate their Electoral College votes between the Republican and Democratic nominees in a perfect reflection of the voting patterns within the state. So, if 40 percent of California votes Republican, 40 percent of California’s electoral votes go to the Republican candidate, and vice versa.

 

Obviously, this reform only works as intended if all 50 states allocate their votes in this way, and so Republicans would have to be on board to make it work. But if this system were to operate on the state level, faithless electors could also undermine it, just like the NPVC. So why on Earth is Lessig fighting for the faithless electors in Baca v. Colorado Department of State?

 

It could be that his faith lies exclusively in a constitutional amendment. He might also think that Republicans will only come to the table if they suffer from a broken Electoral College just as much as Democrats have since 2000.

 

But if this is his line of reasoning, he fails to acknowledge that Republican voters—at least those living in certain states—already suffer from the Electoral College. More importantly, he ignores the fact that most faithless electors in 2016 actually defected against Hillary Clinton. And perhaps worst of all, Lessig is sacrificing a serious opportunity to install a popular vote system on the state level in favor of a much less feasible constitutional amendment—unless, of course, Lessig hopes to lose.

 

There is the slightest possibility that he has been working for the faithless electors just to get their case in front of the Supreme Court, where the issue can be put to rest more definitively than it could in any lower court. Perhaps he hopes that the Supreme Court will then rule against the faithless electors. Because if they do, the NPVIC and other state-level electoral reforms (like Lessig’s fractional proportional allocation system) that rely on states’ ability to direct their electors at will, would be on more solid footing.

 

If this is actually his game, Lessig is playing with fire. True, the Supreme Court would probably hesitate before enacting a sweeping change to the election system, especially one that could be so unpopular (although they famously showed themselves willing to go this route in the 2000 Bush v. Gore decision). But the Constitution seems pretty squarely on the side of the faithless electors here. The die is cast, and it’s not at all clear how it will land.

 

The chance that either the NPVIC or Baca v. Colorado Department of State will upend our election system is relatively modest for now. The best chance of reform is the former, though it could not take effect for the 2020 election. The more pressing question is how the Supreme Court will decide Baca v. Colorado Department of State leading up to November. If it hands down a victory to the faithless electors, this could potentially lead to a crisis for the American electoral system, since a candidate who wins thanks to the whims of only a few faithless electors would have no claim to legitimacy.

 

On the other hand, this would not represent a radical change from the status quo, which might allow a president impeached by the House to once again lose the popular vote and remain in office. Whether Americans will continue to accept this possibility is surely one of the most pressing democratic questions in contemporary politics.

 

Photo Credit: Arnaud Jaegers, via Unsplash.

 

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