Charles Krupa/AP Photo
Protesters outside the statehouse prior to the Electoral College vote in Boston, December 19, 2016
Yesterday, the Supreme Court unanimously ruled that in matters of presidential elections, the people are supreme. Well, at the state level.
Monday’s ruling affirmed the power of states to punish presidential electors who don’t vote for the candidate who wins the state’s popular vote in our quadrennial presidential elections or to replace them with electors who will.
In the states, then, the people rule. In the United States, not so much—if at all.
The Court’s ruling leaves in place the Electoral College, inasmuch as the case before the Court wasn’t about the Electoral College’s existence. But an increasingly absurd and blatantly undemocratic existence it is. In two of our last five presidential elections (2000 and 2016), a plurality of Americans voted for candidates (Al Gore and Hillary Clinton, respectively) who lost in the Electoral College to candidates (George W. Bush and Donald Trump, revoltingly) who’d received fewer popular votes than they. Which is to say, the Electoral College negates the first precept of democracy: The majority (or at least, the plurality) rules.
To restore some semblance of democracy to our Republic, 15 states and the District of Columbia have enacted laws requiring that their electors vote for the winner of the national popular-vote contest, with the proviso that that compact go into effect only when enough states have joined the compact to ensure the Electoral College victory of the popular-vote winner. So far, those 15 states plus D.C. amount to 196 electoral votes, well shy of the 270 needed to win in the Electoral College.
Is there a way around the Electoral College, a piece of 18th-century handiwork put into the Constitution at a time when that document’s authors thought that only a relative handful of elite Americans would actually know anything about the presidential candidates, and when the Constitution’s Southern authors feared straight-out popular presidential elections could favor Northern candidates not necessarily predisposed to slavery?
As the Electoral College favors small states (since each state gets two extra votes reflecting its Senate representation), repealing the Constitution’s Article II provision that requires its use would prove difficult. As three-quarters of the states must ratify any constitutional change, it would take just 13 smaller states to block the College’s abolition.
In 2018, though, writing in these pages, Erwin Chemerinsky, a constitutional law scholar and dean of the UC Berkeley Law School, argued the Court’s one-person-one-vote ruling enforcing the Fifth Amendment’s establishment of equal justice under the law renders the Electoral College unconstitutional. No such case has yet come before the Court and it’s by no means clear that Chemerinsky’s argument would prevail. But it certainly should be tried.
For that matter, if Democrats ever sweep the nation in an election, they should try for an out-and-out repeal of that Article II provision. Most Americans, if they ever think about it, reflexively favor the idea of popular sovereignty, even though Republicans are turning against it—so far, implicitly rather than explicitly—as the nation’s electorate becomes more racially diverse. The campaign could be framed as letting the people, rather than some obscure institution, decide. The real American deep state, after all, which thwarts the ability of Americans to govern themselves by the principle of majority rule, is the Electoral College and the U.S. Senate.
Americans are also more conscious of their federal elected officials than their state-level officials. Compare the number of Americans who can name the vice president with the number who can name their lieutenant governor. But under our current system, the people’s vote directly determines who their lieutenant governor will be, but not who their vice president will be.
The Electoral College? As Voltaire once said, écrasez l’infâme.
