The Electoral College Has Got to Go.
But We’ll Never Get Rid of It

Consider this: Donald Trump's insistence that the election was rigged, his claim of millions of fraudulent ballots, his re-election campaign filing some 60 lawsuits to overturn the election in key states, his suborning of state legislators to choose a slate of electors voting the opposite of how the people of their state voted, his attempt to lure Electoral College appointees to do the same,

his tweeting "Big project in D.C. on January 6th. Be there, will be wild!", The Washington Post reporting that "The Proud Boys, members of armed right-wing groups, conspiracy theorists and white supremacists all have pledged to attend" and "far-right demonstrators workshopping ways to smuggle guns into the District", and now asking Georgia's secretary of state "to find 11,780 votes" somewhere to flip that state's Biden win.

Consider all this and realize that all of it — every last bit of it — owes to a freakish 18th Century constitutional anachronism, the Electoral College.

Sound exaggerated? If we instead had chosen the president and vice president by the national vote count, we'd have known the election's outcome by midnight November 3rd when Biden had already taken the lead. That would have been the end of it. We would have had none of the Kabuki ritual of the Electoral College — commissioners certifying county votes, legislators choosing slates of electors to send to Congress, Congress anointing the state submissions — that gave Trump the opportunity to attempt his coup by disrupting at every turn. It was the obsession with state votes, irrelevant in the national count, and the small margins of a few that gave Trump the opportunity to invent tales of fraudulent ballots and illegal votes in quantities that his faithful would — listening to his manic repetition — come to believe. Had there been only a national popular vote, even his avid supporters would have found Trump's protestations of "millions and millions of corrupt Mail-In Ballots" (none ever proven) in the face of the seven million margin of Biden's win to be the ravings of a madman.

And now, adding weight to our argument, along come Texas Republican Louie Gohmert and some of the losing electors of Arizona moments before the electoral votes are counted in Congress, with a lawsuit against Vice President Mike Pence! They assert that the 1887 Electoral Count Act that prescribes how electoral votes are counted unconstitutionally violates the 12th Amendment which conferred total authority to the vice president, in his role of president of the Senate, to choose which votes to count. (Not our copy of the 12th; it says only, "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;"). Gohmert and his cohort wants to force Pence to choose sides: either count the elector votes for Biden or help Trump overthrow the government by counting Trump elector votes instead. So here we have yet another idiocy brought to you solely by the Electoral College.

Those who place constitutional originalism on an altar should realize that the Electoral College has its roots in slavery. The College was invented at the 1787 Constitutional Convention as a compromise to induce southern states to stay in the Union. Electors would represent voters, chosen for being more sensible and deliberative than hoi polloi, their number matching how many representatives and senators a state was eligible by its population to send to Washington. The population count for the southern states Included slaves, but counted as three-fifths of a person. Only White male landowners could vote.

Three years after the Civil War, the 14th Amendment did away with three-fifths, making Blacks full citizens, and the 15th Amendment two years later gave them the right to vote. But they were disenfranchised again when southerners crushed Reconstruction and replaced it with Jim Crow laws.

The Founders believed democracy was best served if it followed what the majority preferred. Alexander Hamilton in Federalist No. 22 wrote, “The fundamental maxim of republican government requires that the sense of the majority should prevail.” James Madison wrote, "[T]he vital principle of republican government is … the will of the majority." Thomas Jefferson in his first inaugural address said the “sacred principle” is that “the will of the majority is in all cases to prevail.”

Yet the Electoral College has several times worked in the opposite direction. Twice in this young century we have seen a candidate win the presidency while losing the popular vote, George W. Bush in 2000 despite Al Gore besting him by 547,000 votes and Donald Trump in 2016 by winning in the Electoral College by a margin of only 77,000 votes in Wisconsin, Pennsylvania and Michigan combined while losing the popular vote by three million. It came close to happening again this year and in 2004, when a shift of only 60,000 votes would have handed the presidency to John Kerry who lost the popular vote by three million.

This comes about because the winner of the popular vote in 48 of the states takes all the electoral votes for that state. Winner take all is found nowhere in the Constitution. By adopting it, state legislatures perversely decided to make the Electoral College still more anti-democratic. The only exceptions are Maine and Nebraska, where electors vote for the candidate who won their congressional district. Winner take all, whether by a margin of one vote or a million, means that all who voted for the losing candidate are effectively disenfranchised. Their votes simply disappear, a disincentive for them to show up at the polls at all in very red or very blue states where the outcome is foreordained. Conservatives in New York and California or liberals in Texas and South Carolina must wonder why they bother.

This year's election brought 66.2% of the voting-eligible public to the polls, a markedly better turnout, but still one need wonder how much winner-take-all and its obliteration of opposing votes is why a third stay home. When every vote counts, more people vote. In all other elections, from Congress on down the ballot, everyone's vote counts. Only in the election for the most important office in the land are the votes of millions thus voided.

Thirty-two states and the District of Columbia have passed laws that forbid electors to make their own choice of whom to vote for. They are chosen for their partisan loyalty and not to be self-appointed deciders of who should be president, and the Supreme Court recently ruled that states can replace and punish so-called "faithless electors" who break ranks and vote for their state's losing candidate. Well and good, although it begs the question of if they are required by law to vote however the people voted, why are they needed? Why not shortcut the multiple steps of commissioners voting on behalf of counties, electors voting on behalf of states, and just have state legislatures submit their allotted electoral votes to Congress? Instead, Donald Trump was given openings for weeks after Election Day to corrupt the process and the people who were patriotically performing their — unnecessary as we argue — jobs.

Electors may be nailed down, but state legislatures and governors are not. The Constitution gives state them supremacy over elections, and even the Supreme Court tends not to trespass, witness its feckless avoidance of taking on gerrymandering's corruption of democracy. Next time around a state's legislature, controlled by the party whose candidate lost, could override its voters and send its own slate of electors to Congress. This loophole, which in a close race could deliver an election to the losing candidate, exists only because the gaping vulnerability of the Electoral College exists.

The most frequent gripe is that it is weighted in favor of smaller states; the smaller the state, the bigger the weighting. Those two senator proxies added to the elector count mentioned above is the cause. At the extremes there is Wyoming, with just a single representative because of a population less than 600,000, but three elector votes when the senator proxies are added, versus California with 39.5 million inhabitants and 55 electoral votes, the senator bonus making little difference. That makes each Wyoming elector's vote 3.7 times more powerful, relative to the number of people it represents, than California's.

Those on the Right will hang on dearly to the Electoral College for just this reason — the extra weight given to the smaller states which are mostly conservative. They argue that it's only fair that smaller states get a leg up in a country dominated by the big states. Except it says that some Americans should have a greater say than other Americans.

Objections to the albatross of the Electoral College has prompted many proposed workarounds, the most prominent being the National Popular Vote Interstate Compact (NPVIC). It calls for a state to cast all its Electoral College votes for the presidential ticket that wins the national vote. So far, 15 states and the District of Columbia have signed on to the plan, bringing 196 votes to the total of 270 needed to make a majority (nationwide there are 538 electoral votes) and put the plan into effect for all member states.

The Washington Examiner says "this silly scheme" is unconstitutional, pointing to Article I of the Constitution that says, "No state shall, without the consent of Congress…enter into any Agreement or Compact with another state". The publication asks us to consider how it would go down if Californians voted Democratic by 20 or 30 points only to have to hand over all of its 55 votes to a Republican candidate who won the popular vote.

Another plan would award a state's electors in proportion to votes won by each candidate in that state, but with two of the electors, conceptually the two representing the state's senators, given to the state's popular vote winner.

There have been some 700 proposals to reform or abolish the Electoral College. It is by far the most disliked provision of the Constitution, yet it lives on. Instead of amending it out, we are stuck with this grotesque quadrennial fuss for choosing just the single person and his/her running mate. If the Electoral College didn't exist today, certainly no one would propose it, so why do we keep it?

The short answer is that it is impossible to get rid of. Not since 1970 has there been an attempt. Republican Senator Birch Bayh of Indiana conducted a valiant campaign to pass a constitutional amendment that would abolish the College. A move for cloture to halt a filibuster led by southern segregationists Strom Thurmond and Sam Ervin came up a few votes shy. But then realize that would have been only the first step. Had it passed it would then have needed ratification by three-fourths of the states.

Nevertheless, we once amended the Constitution with some frequency — three times in the 1960s — but with today's polarization the likelihood of Left and Right coming to agreement approaches zero.

Conservatives are content with the status quo. That engenders some figure-eight arguments on editorial pages such as The Wall Street Journal where Barton Swain argued that under the Electoral College fraud is much less likely for reason of malefactors not knowing in advance which state will prove crucial on Election Day. In fact, battleground states are known well in advance. The counter argument says that under a national popular vote, massive quantities of rigged ballots would be needed to swing an election, unlike the much more achievable numbers needed to tip a close battleground state.

A Journal editorial believes that the Electoral College checks polarization by forcing candidates to campaign in competitive states instead of spending all their time in states with the highest populations. But the corollary is that little or no attention is paid to the sure-thing red and blue states, only "battleground" states, which removes a hundred million or so Americans from the conversation.

But attention to most states would be paid if the national popular vote decided the presidency because candidates would campaign in those states to seek out their own — Democrats in red states or Republicans in blue states — to add to the national total. States of respectable size, that is; no point pretending that under either arrangement candidates would flock to the least populous states.

The newspaper's normally savvy columnist Peggy Noonan made no sense whatever when, in a piece celebrating how the system worked and we got through the election after all,

"We owe this to the brilliance of our Founders, but we deserve credit too for our continued fidelity to their vision. (Those who would abolish the Electoral College: Keep in mind the role it just played.)"

What?! The role it played was the two months of chaos in which Donald Trump was able to persuade an as yet unmeasured percentage of his 73 million backers that the vote was rigged, seriously threatening the over 230 years of this democracy, whereas without the Electoral College it all would have been over by midnight November 3rd.