Will We Ever Get Rid of the Electoral College?

 

 

By

Michael Kazin

thenation.com

We Americans live in a debased version of democracy in which basic parts of the federal government betray, by design, the principle of majority rule. Wyoming elects the same number of senators as California does, although Wyoming’s entire population is not much larger than the city of Fresno’s. When voting as a bloc, five members of the Supreme Court can negate any act passed by Congress; barring an unlikely impeachment, every justice, once confirmed by the Senate, remains on the bench until she or he retires or dies. To alter the framework of the Supreme Court or the Senate would require a constitutional amendment that the legislatures of as few as 13 states could prevent from being ratified.

Yet neither is the greatest insult to popular sovereignty. That would be the fact that it takes just 270 electors—individuals whose names are virtually unknown to the public—to formally decide who will be one of the most powerful human beings on earth. A candidate can win a plurality of the popular vote, as did Al Gore and Hillary Clinton, and yet the decision of who becomes president can still come down to a small set of electors in one or two states. And no minimum vote is required to win any state’s electoral votes: If a horrendously massive earthquake killed most Californians this fall, Donald Trump could legally win all of that state’s 55 electoral votes by edging out Joe Biden by a margin typical in a low-scoring baseball game.

Unlike with the other venerable pillars of our less-than-democratic order, most Americans have seldom thought the Electoral College worth preserving. Surprisingly, the very men who drafted the Constitution also had their doubts. The ungainly apparatus got welded into the document as a compromise between those framers who wanted Congress to pick the president and those who wanted to leave it up to state governments. The system they came up with was nobody’s first choice.

Over the past two centuries, Congress has repeatedly debated enacting major changes to the Electoral College or scrapping it; on a few occasions, lawmakers came agonizingly close to doing so. James Madison, the most influential figure in the drafting of the Constitution, was never fond of the Electoral College and sought to replace it with a national popular vote (which in his day, of course, would have been limited to white men). In nearly every opinion poll conducted from the 1940s to the present, majorities have favored switching to that simple and—ever since women and Black people got the right to vote—quite democratic alternative.

One of the chief virtues of Alexander Keyssar’s remarkable new book Why Do We Still Have the Electoral College? is that it conclusively demonstrates the absurdity of preserving an institution that has been so contentious throughout US history and has not infrequently produced results that defied the popular will. No presidential contest has ended up in the House of Representatives since 1824, when that body chose John Quincy Adams after a multicandidate race in which his nearest competitor, Andrew Jackson, won a plurality of both the popular and the electoral vote. But on four other occasions, fewer ballots were cast for the winner than the loser, and in the exceedingly close elections of 1884 and 1916, the switch of a few thousand votes in a single state would have handed victory to the less popular nominee.

More galling, those anonymous electors have usually also had the liberty to defy the people’s choice by voting for someone who did not carry their state or did not even run for the presidency at all. This is a prospect that a recent Supreme Court decision sought to correct, in a unanimous ruling that a state can compel electors to abide by the pledge they made to support their party’s nominee. “The State instructs its electors that they have no ground for reversing the vote of millions of its citizens,” wrote Justice Elena Kagan. “That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.” Despite this ruling, 17 states, including ones that tend to swing, like Florida and Ohio, still allow electors to vote their conscience.

The premise of Keyssar’s book is an uncommon one for a historian to pursue. Few scholars spend their time seeking to explain something they wish had happened but never did. Even writers who probe the perennial question of why socialism never gained a mass following in the United States as it did in Europe still have a good deal to say about such topics as the popularity of Eugene V. Debs and the vital role played by Marxist radicals in the labor movement and the crusade for racial justice. But the centuries of fruitless effort inspired Keyssar to create a scholarly masterpiece. No other historian has so persuasively explained the utter failure to ditch or change a process that, as he puts it, “is ill understood by many Americans, bewildering to nearly everyone abroad, and [was] never imitated by another country or by any state of the United States. Many countries have struggled with the problem of electoral reform, but few, if any, have done so with such lack of success over so prolonged a period.” This is clearly not a book for anyone who believes the moral arc of politics is long but always bends toward justice.

To tell his story, Keyssar has crafted an absorbing, if dispiriting, narrative about the durable obstacles to structural change in the United States. Running through this long history of failed reform schemes were the often intersecting realities of the two-party system and a fear of the potential power that Black voters could wield after Emancipation. Many Republicans and Democrats admitted the inequity of awarding a state’s entire electoral vote to whoever won a mere plurality of its ballots. But a filibuster-proof majority balked at endorsing any of the plans on offer that would have scrapped the state-based system of winner take all. They knew awarding electoral votes by congressional district or by the proportion each candidate won in a state could destroy an advantage precious to their party’s chances to win the presidency.

Thus, Southern Democrats in the late 19th century asserted that any proportional division would trample on the right of states to control their own elections, which was enshrined in the Constitution. One group of Dixie congressmen, contradicting the name of their party, derided the idea of a popular vote to decide the presidency as embodying “the false assumption that our government was intended to represent the will of the majority of the whole people of the United States.” In 1889 an overly sanguine Republican predicted that with proportional elections, “the solid South, that bugbear of our politics…would immediately disappear, together with many of the attending evils of sectional hatred and race prejudice.” Yet by the early 20th century, when Southern legislatures had effectively disenfranchised most Black citizens, GOP politicians had found their own reason to oppose such reforms. If Democrats were going to sweep the South every four years, then the GOP needed to ensure that states like Massachusetts and Wisconsin would remain bastions of a solidly Republican North.

Only during those brief periods when partisanship waned did lawmakers from different regions come close to passing measures that would have brought an end to the Electoral College. The first near miss occurred in 1821. By then, the aristocratic Federalists first organized around Alexander Hamilton had all but disappeared, allowing politicians from the party that Madison and Thomas Jefferson had founded as the Democratic-Republicans to thoroughly dominate the so-called Era of Good Feelings. In 1820, after James Monroe was reelected as president without facing a challenger, the Senate approved, by more than the required two-thirds vote, an amendment mandating district elections. After months of delays and debates, the House favored the idea, too—but with six fewer votes than were needed to send the amendment on to the states for ratification.

According to Keyssar, the lawmakers who resisted had a variety of motives. Some feared that future gerrymanderers could skew the shape of districts to favor one candidate or defeat another. Others were just accustomed to a system that had temporarily made their party the only one in the land. A congressman from South Carolina justified his nay vote by quoting Hamlet: “It is better…to bear those ills we have than to fly to others that we know not of.” Coming from a state where enslaved people were the majority, he probably never imagined that Black people would someday have a hand in making such decisions.

A century and a half later, the opportunity for overhauling the Electoral College returned. For much of 1968, George Wallace, the militant racist from Alabama who ran on a third-party ticket, was riding so high in the polls that it seemed entirely possible he could win enough states to force the House to choose the president. In the end, Richard Nixon won a clear majority of the electoral votes. But the fear that in a future contest, members of the lower chamber might have to negotiate with Wallace or another rogue independent mobilized support for a constitutional amendment that would replace the Electoral College with a national popular vote, supplemented by a runoff election if necessary. Leading figures in both parties jumped on board, and the amendment even found support in the pages of the conservative National Review. The editor of the major daily paper in Charlotte, N.C., happily reported that the “creaky old system has few defenders left.”

Alas, given the need for a supermajority, the old system ended up having just enough. In the fall of 1969 the House passed the amendment with ease; just 70 representatives voted against it. A Gallup poll at the time found that more than four-fifths of the public endorsed the change as well. But as so often in the past, Southern senators used delays and a filibuster to kill the opportunity to abolish a major obstacle to democratic rule. Leading the opposition was Sam Ervin from North Carolina, a longtime champion of segregation and other right-wing causes. Three years later, liberals would applaud him for heading the select committee that helped uncover the slimy facts of the Watergate scandal. Ironically, a top official of the NAACP withheld support from the effort, too: He did not want to abandon the potential power Black people had to swing the vote in big Northern states and insisted that, so soon after the enactment of the 1965 Voting Rights Act, which was up for renewal in 1970, guaranteeing the franchise to African Americans in the South should come first.

For the remainder of the 20th century, the cause of reforming the way presidents get elected fell prey to the apathy of most politicians, who found no reason to keep flogging a losing cause. “It is a waste of time to talk about changing the Electoral College,” said Jimmy Carter in 2001. The former chief executive predicted the institution would last for another 200 years. The Nebraska legislature did decide in 1991 to award its electoral votes to the winner of each congressional district in the state. And in 1992 the fear that Ross Perot’s strong third-party run would prevent any of the presidential candidates from achieving an electoral vote majority spurred the Senate to hold a major hearing about altering the system that made such a contingency possible. “It is nonsense,” declared Mitch McConnell, then just an ordinary Republican senator, “to have the House of Representatives choose the president.” But after the Texas billionaire’s 19 percent of the popular vote won him not a single state, the embers of concern turned cold.

During this century, opinion on the merits of a national popular vote, as on nearly every issue that matters, has broken down along partisan lines that grow sharper with each presidential tweet. That George W. Bush in 2000 and Trump in 2016 made it to the White House despite winning fewer votes than their Democratic rivals has turned most Republicans into big fans of the Electoral College. Hugh Hewitt, who teaches constitutional law when he’s not writing hymns of praise to his authoritarian leader on The Washington Post’s op-ed page, recently defended the Electoral College as “one of the two load-bearing walls on which the Constitution is built.” His column mentioned none of the faithless electors in 2016. Hewitt’s students might ask their professor why he did not consider the judgment of Madison, the chief architect of that 230-year-old textual edifice, before writing those foolish words.

In contrast, Keyssar reveals throughout his book how complex historical wisdom can be. Rarely does he offer just a single explanation for why the various efforts to reform the Electoral College or do away with it have failed to gain the necessary votes in Congress or why, for years at a stretch, their proponents saw little point in trying. The impression he leaves is of a polity in which incremental moves that enhance democracy, like the Voting Rights Act, are possible, while efforts to cure the fundamental infirmities of the system keep coming up against such barriers as the “balance of power between the states and the national government”—which are encrusted with centuries of jurisprudence and defended by politicians whose power might be threatened by change. “The history recounted here has a Sisyphean air,” Keyssar admits near the end of his book.

Fortunately, eternal frustration has not always been the fate of the right to vote, the subject of his book published in 2000. In it Keyssar described, with just as profound a knowledge of his subject, how mass movements of white workers, women, African Americans, and their legislative allies gradually expanded the franchise until, by the late 1960s, it was available to all adult citizens, save the incarcerated and most felons who had served their time.

But because there has never been an insurgency to demand a national popular vote, the Americans who keep straining to push that rock up the steep constitutional hill are nearly all politicians, academics, and journalists. Few ordinary voters care enough about how the president gets elected to organize around the issue; they just prefer a candidate who shares their beliefs and promises to serve their interests and perhaps will make them feel good about their government and their country. “The nation has become more democratic since 1787 and more committed to political equality, but the Electoral College has not,” Keyssar concludes. And so we endure with the most ridiculous system for producing our head of state and government on earth.

 

THE NATION