Last year I wrote that the Electoral College, an archaic and outmoded system that runs contrary to our democratic principles and intuitions, was the “greatest threat to our democracy.”
Somehow, this was an understatement.
As recently as Wednesday, according to a report by my colleague Maggie Haberman, President Trump was pressing his aides on whether Republican legislatures in key states could overturn the results of the presidential election and pick pro-Trump electors, potentially giving him a second term. It’s not likely, but the fact that it is even theoretically possible is one of the most starkly undemocratic elements of the Electoral College. If it actually happened, in 2020 or the future, it would mark the end of American democracy as we know it.
If Americans chose their president by a national popular vote, the outcome would have been apparent from the time polls closed on the West Coast on Election Day. Late that night, Joe Biden held a strong head in ballots cast, and since then it has only grown. As of Friday morning, the president-elect led the national tally with 77.8 million votes to 72.5 million for Trump, for a spread of 5.3 million votes. With plenty of outstanding ballots left to count in Democratic strongholds like New York and California, the gap will continue to grow.
Of course, Americans don’t choose their president by national popular vote. They choose him (still him, for now) in 51 individual elections, nearly all of them winner-take-all, with special attention paid to those states competitive enough to make a difference in the fight for 270 electoral votes. No one designed this system — it bears little resemblance to the deliberative, temporary legislature empowered to pick a president described in the Constitution — but it’s what we have.
It is because the outcome depends on results in individual states — and because those results are much narrower than the national tally — that Trump can claim there is path to reversing the outcome of the election, however ridiculous that claim is. Allege enough fraud in Wisconsin, Pennsylvania and Georgia and you might convince Republican state legislators to take matters into their own hands, embracing the view, first articulated by Chief Justice William Rehnquist in Bush v. Gore and then echoed in a recent opinion by Justice Brett Kavanaugh, that state legislatures have sole and exclusive power to decide election law and procedures.
What could those lawmakers do? Under the Constitution, states can allocate electors — meaning electoral votes — in “such Manner as the Legislature thereof may direct.” Beginning after the Civil War, every state in the union has used direct popular election to choose electors. The modern process is straightforward. After the vote, election officials certify results and prepare “certificates of ascertainment” that establish credentials for each elector. There are multiple copies, and the governor signs each one. The electors meet, record their votes, and those votes, along with the certificates of ascertainment, are sent to state and federal officials, including the vice president, who will preside when Congress counts electoral votes early next year. If a state submits conflicting electoral votes, the House and Senate may choose which ones to accept or reject.
Under the theory of legislative supremacy over elections, however, Trump-friendly state legislatures could possibly circumvent governors and election officials to create different slates of electors to send to Congress, forcing a choice between the people’s electors and those of the legislature. It’s a move that would almost certainly force the Supreme Court to intervene, creating confusion and — more important — the sense that the outcome of the election is genuinely unsettled.
Abolish the Electoral College and Everyone Wins
Whether you’re Republican or Democrat, the Electoral College is unfair.
Democracy is, at its core, about fair, equal representation — one person, one vote. But if you’re a voter in the United States, there’s a really good chance your vote doesn’t count the way you think it does. Why? Well, American democracy operates on a whole collection of cherished ideas and practices, but our system also includes some dusty old artifacts from its founding two centuries ago. Take the Electoral College, America’s system for picking the president. It’s complicated, outdated, unrepresentative — in a word, undemocratic. In 2016, Donald Trump won the White House by earning a majority of electoral votes, even though almost three million more Americans voted for Hillary Clinton. It wasn’t the first time a president won by losing or the second or even the fourth. And this year, who knows? I’ve spent the past few years obsessively analyzing the Electoral College, trying to understand the concerns of the founding fathers, doing the math from different elections. I wrote a whole book on the subject. What I learned is it doesn’t have to be this way. And the reasons people think we need to keep the Electoral College the way it is, they’re all wrong. Myth No. 1, that Democrats will win a popular vote every time. A lot of people don’t even want to talk about changing the Electoral College because of this idea. Republicans especially worry about tipping the balance away from their party. And sure, the last two times the Electoral College has awarded the White House to the popular-vote loser, it’s been to the Republican — Donald Trump in 2016 and George W. Bush in 2000. But don’t forget, Bush won the popular vote four years later by three million votes. In fact, let’s tally up all the votes cast for president between 1932 and 2008. That’s almost 1.5 billion votes. Sometimes one party does better for a few election cycles. But in the end, Republicans and Democrats are virtually tied. The point is, even accounting for demographic changes, neither party has a built-in advantage under a popular-vote system. Myth No. 2: The founders wanted it this way. And because they created it, it’s a sacred work of constitutional genius. That’s not true either. The founders fought like cats and dogs over how the president should be chosen. They disagreed so strongly that the final system wasn’t adopted until the last minute, thrown together by a few delegates in a side room. Many of them were unhappy with the results. Some of the most important framers, including James Madison and James Wilson, wanted to write a direct popular vote into the Constitution. Why did they lose? For one thing, slavery. Enslaved people couldn’t vote, but they were still counted toward the slave states’ representation in Congress. That meant more power for those states under an Electoral College system, and slave states didn’t want to give up that power. This is just one way the legacy of slavery still taints our politics today. But get this, the way the Electoral College actually functions today isn’t even enshrined in the Constitution. The way it gets implemented is the result of dozens of state laws, which evolved over time as the country settled into a two-party system. In other words, the Electoral College isn’t sacred, and there’s no reason we can’t change how it works today. And finally, Myth 3: The Electoral College protects small states. You may have heard this one in high school. Without the Electoral College, big states like California and New York would dominate elections. The voices of small states, like Rhode Island and Wyoming, would be drowned out. But the reality is, right now neither the small states nor the big ones have the voice they should. Which states do matter? Places like Florida, Pennsylvania, Michigan. These aren’t small states. They’re swing states. Candidates focus on swing states because they actually have a chance of flipping them and winning a bucket of electoral votes. It’s no wonder the candidates fixate on issues that matter to specific groups of voters in swing states, like fracking in Pennsylvania — “This is my 13th visit.” — or prescription drug benefits in Florida. “Including prescription drug benefits and all seniors at every income level.” But they spend almost no time talking about issues that matter to millions of voters elsewhere, like public transportation in New York or climate change in California. Donald Trump was open about ignoring the pleas of the safe blue states like New York when they were suffering the most from the coronavirus pandemic. But swing states distort our national priorities, even when the president wins the popular vote. Why did President Obama spend so much money bailing out the auto industry? “America’s auto industry — auto industry — auto industry” At least in part because it’s located mostly in swing states, like Michigan and Ohio, states whose electoral votes he needed to win. The reason we even have swing states is because almost all states award their electoral votes using a winner-take-all system. If a candidate wins the popular vote in a state, even by a single vote, they get all of that state’s electoral votes. This means that every election, 80 percent of American voters, roughly 100 million people, get ignored. Think about it. If you live in a state where you’re in the political minority, your vote is effectively erased. There are millions of Republicans in deep-blue states, like Massachusetts and California. But under this system, those Republican votes might as well not exist. This is the heart of the problem with the Electoral College. But here’s the important part. It can be fixed. Remember what we said back in Myth No. 2? The way the Electoral College actually functions today isn’t even enshrined in the Constitution. The winner-take-all method is nowhere in the Constitution. States have the power to award their electors however they like. In fact, there is already a movement brewing among states to agree to award their electors to whichever candidate wins the national popular vote. When enough states join in this interstate compact, it’ll mean that the popular-vote winner will always become president. So far, 15 states plus the District of Columbia have joined in for a total of 196 electoral votes, just 74 more. And that’s it. Suddenly, every voter will count, no matter where they live. This isn’t rocket science. The winner of an election should be the person who gets the most votes. It’s how we run every election in the country, except the most important one of all. It’s just basic fairness. So let’s put the power to select the president where it actually belongs, in the hands of all the people.
It has to be said that there is almost no chance of this happening. Pennsylvania Republicans have already ruled it out, and without the state’s electoral votes Trump has no reasonable path to a second term. Biden’s win was decisive, with hundreds of thousands of votes in five swing states separating him from Trump in the Electoral College. Republicans in Washington know this and have privately described their public statements (that the results are uncertain; that Biden is not-yet president-elect) as one part performance art for a chief executive who cannot face reality, one part a strategy to gin up turnout for the upcoming pair of runoff elections in Georgia that will determine which party controls the Senate.
But the thing about performance art is that it’s only effective when everyone knows it is a performance. Is every Republican in Michigan or Wisconsin in on the joke? Are Republican voters nationwide? If not, how can anyone really say they know when and how this game will end?
The best odds are that come Jan. 20, Joe Biden will take the oath of office as the 46th president of the United States. Many Americans will want to breathe a sigh of relief. They shouldn’t.
We are living through a period in which, for reasons of geographic polarization in particular, the Republican Party holds a powerful advantage in the Senate and the Electoral College, and a smaller one in the House of Representatives. Twice in 20 years they’ve won the White House without a majority of votes. A few shifts here and there, and Trump might have won a second term while losing by a popular vote margin nearly twice as large as the one he lost by in 2016.
The Republican Party, in other words, can win unified control of Washington without winning a majority of the vote or appealing to most Americans. Aware of this advantage, Republicans have embraced it. They’ve pinned their political hopes on our counter-majoritarian institutions, elevated minority government into a positive good (rather than a regrettable flaw of our system) and attacked the very idea that we should aspire to equality in representation. “Democracy isn’t the objective; liberty, peace, and prosperity are,” Senator Mike Lee of Utah tweeted last month. “We want the human condition to flourish. Rank democracy can thwart that.”
“Rank democracy.” Perhaps Lee, one of the leading intellectual lights of the Republican Party, is alone in his contempt for political equality between citizens. But I doubt it. And a Republican Party that holds that view is one that will do anything to win power, even if it breaks democracy. It’s a Republican Party that will suppress voters rather than persuade them, degrade an office rather than allow the opposition to wield it and create districts so slanted as to make it almost impossible for voters to remove them from office.
For that Republican Party, the Electoral College is a loaded gun, waiting to be fired. We’ll disarm and disassemble it as soon as possible, if we value this democracy of ours.
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