Should the electoral college be abolished pros and cons

18 Congressional Digest n www.CongressionalDigest.com n June 2020

“. . . the Electoral

College . . . no

longer fits our

nation’s needs.”

Continued on page 20

The Pros and the Electoral

Should the United States change the way it elects presidents?

Honorable Steve Cohen United States Representative, Tennessee, Democrat

Rep. Cohen, of Tennessee’s Ninth Congressional District, was elected to the U.S. House of Representatives in 2006. Prior to his election to Congress, he served in the Tennessee State Senate for 24 years. He has been a leader on numerous legislative issues including civil rights, universal health care, transportation and education. Currently he is a mem- ber of the following House committees: Judiciary; Transportation and Infrastructure; and Science, Space and Technology. The following is from his Jan. 3, 2019, statement introducing a constitutional amendment to eliminate the Electoral College.

Madam Speaker, I rise today in support of a constitutional amendment I introduced today to eliminate the electoral college and provide for the direct election of our nation’s President and Vice President. As Founding Father Thomas Jefferson said, “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might well as require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.’’ In 2016, for the second time in recent memory, and for the fifth time in our history, the national popular vote winner did not become President because of the Electoral College. This has happened twice to candidates from Tennessee: Al Gore and An- drew Jackson. The reason is because the Electoral College, established to prevent an uninformed citizenry from directly electing our nation’s President, no longer fits our nation’s needs. When the Founders established the Electoral College, it was in an era of limited nationwide communication. The electoral structure was premised on a theory that citizens would have a better chance of knowing about electors from their home states than about presidential candidates from out-of-state. Electors were supposed to be people of good judgment who were trusted with picking a qualified President and Vice President on behalf of the people. They held the responsibility of choosing a President because it was believed that the general public could not be properly informed of the candidates and the values each held. That notion — that citizens should be prevented from directly electing the Pres- ident — is antithetical to our understanding of democracy today, and our electoral process has not evolved to match our abilities to communicate, collect information, and make informed decisions about candidates. The development of mass media and the internet has made information about presidential candidates easily accessible to

19Congressional Digest n www.CongressionalDigest.com n June 2020

Continued on page 21

Cons of College

Jason Pye Vice President of Legislative Affairs, FreedomWorks

FreedomWorks, founded as Citizens for a Sound Economy in 1984, is an advocacy organization working to promote free markets, individual liberty and limited govern- ment. As vice president of legislative affairs, Jason Pye conducts policy and legislative analysis for the organization and covers a variety of policy issues including civil lib- erties, immigration and criminal justice reform. The following is from his March 12, 2019, commentary titled, “Abolishing the Electoral College Is a Bad Idea,” which was originally published by FreedomWorks.

Radical changes to federal election law have become cause célèbre of Democrats. The House has already passed the For the Politicians Act [sic], H.R. 1, on party lines. Although H.R. 1 has no chance of passage in the Senate, Democrats are discussing other changes to federal elections, including abolishing the Electoral College. During a CNN town hall on Monday, Sen. Elizabeth Warren (D-Mass.) called for abolishing the Electoral College. She said that “every vote matters,” adding that “the way we can make that happen is that we can have national voting and that means get rid of the Electoral College.” Sen. Warren isn’t alone. Rep. Steve Cohen (D-Tenn.) has introduced a constitutional amendment that would make his state virtually irrelevant in presidential elections. H.J. Res. 7 would abolish the Electoral College. The winner of a presidential election would, instead, be determined by the popular vote. The proposed amendment is not the first of its kind, but the effort to abolish the Electoral College has picked up steam over the past several years. Article II, Section 1 of the Constitution defines the process for the election of the president. Electors are chosen to cast ballots by the respective political parties in their state. Alexander Hamilton explained the thinking behind the Electoral College in Federalist No. 68. This process may vary by state. Although a voter is casting a ballot for president, in reality, he or she is voting on the slate of electors, who will cast their ballots in a manner prescribed by state law. The day on which electors are required to meet and cast their ballots is in statute, 3 U.S. Code 7, which states: “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednes- day in December next following their appointment at such place in each State as the legislature of such State shall direct.” Electors for the 2016 presidential election met on December 19. The Electoral College has its quirks, of course. The election of 1800 was thrown to the House of Representatives. There was a stalemate between Thomas Jefferson and Aaron Burr, both Democratic-Republicans who each received 73 electoral votes. The House finally selected Thomas Jefferson as president on the 36th ballot after

Should the United States change the way it elects presidents?

“Article II, Section 1

of the Constitution

defines the process

for the election of

the president.”

https://www.freedomworks.org/content/abolishing-electoral-college-bad-idea
20 Congressional Digest n www.CongressionalDigest.com n June 2020

Cohen, continued from page 18

Continued on page 22

U.S. citizens across the country and around the world. The people no longer need the buffer of the electoral college to be knowledgeable about and decide who will be president. Today, citizens have a far better chance of knowing about out-of-state presidential candidates than knowing about presidential electors from their home states. Most people do not even know who their electors are. While our ability to communicate has evolved so has the Electoral College, but not in a positive way. Electors are now little more than rubber stamps who are cho- sen based on their political parties and who represent the interests of those political parties, rather than representing the people. Most states legally bind their electors to vote for whomever wins that state’s popular vote, so electors can no longer exercise individual judgment when selecting a candidate. In our country, “We the People,” are supposed to determine who represents us in elective office. Yet, we use an anachronistic process for choosing who will hold the highest offices in the land. It is time for us to fix this, and that is why I have introduced this amendment to- day. Since our nation first adopted our Constitution, “We the People,” have amended it repeatedly to expand the opportunity for citizens to directly elect our leaders: • The 15th Amendment guarantees the right of all citizens to vote, regardless of race. • The l9th Amendment guarantees the right of all citizens to vote, regardless of

gender. • The 26th Amendment guarantees the right of all citizens 18 years of age and

older to vote. • [T]he 17th Amendment empowers citizens to directly elect U.S. Senators. We need to amend our Constitution to empower citizens to directly elect the President and the Vice President of the United States. Working together, I know we can make our Constitution better reflect the “more perfect Union’’ to which it aspires.

Adam Eichen Campaigns Manager, Equal Citizens

Adam Eichen is the campaigns manager at Equal Citizens, a nonprofit, nonpartisan organization that works to promote equal representation, equal dependence and equal freedom to vote in the United States. He is a writer, researcher and organizer whose research focuses on campaign finance, voting rights and comparative election policy. His work has appeared in The Washington Post, The Hill, The Nation and more. The following is from his Aug. 2, 2019, article titled, “The Case Against the Electoral Col- lege Is Stronger Than Ever,” which was originally published in The New Republic.

“Abolish the Electoral College,” [Sen.] Bernie Sanders [I-Vt.] recently tweeted. The Senator’s statement was in response to an op-ed authored by The Cook Political Report’s Dave Wasserman, who posited that though President Donald Trump suffers from a low national approval rating, the Electoral College could still hand him a

“We need to amend

our Constitution to

empower citizens

to directly elect

the President . . .”

https://newrepublic.com/article/154598/case-electoral-college-stronger-ever
21Congressional Digest n www.CongressionalDigest.com n June 2020

Pye, continued from page 19

Federalist members from Delaware, Maryland, South Carolina, and Vermont abstained, denying Aaron Burr the White House. The Twelfth Amendment would resolve the issues that came to light during this election. The amendment, which was ratified in 1804, required separate votes for president and vice president. Of course, the Twelfth Amendment didn’t solve the (non)issue of presidential candidates who win the popular vote but lose the Electoral College. Now, 48 states and the District of Columbia have a winner-take-all system. The presidential candidate who wins the most votes in the state wins the electoral votes. Only Maine and Nebraska have, to this point, deviated from this. Both states give two electoral votes for the winner of the popular vote. However, they award electoral votes for the winner of each congressional district. Donald Trump won all three of Nebraska’s congressional districts, so he took the state’s five electoral votes. Although Hillary Clinton won the popular vote in Maine, Trump won Maine’s 2nd Congressional District, allowing him to pick up an electoral vote in the state. According to National Popular Vote, as of January 2018, 13 states representing 181 electoral votes have passed legislation to award their electoral votes to the win- ner of the popular vote. The legislation in these states will take effect after states representing 270 [electoral votes] have passed the National Popular Vote Interstate Compact legislation. States that have passed the compact include California, New York, and Illinois. Colorado joined the list of compact states [in March 2019]. Under a popular vote concept, large population centers would [have] the most influence over presidential elections in the states. This is already true under the Electoral College, but this influence is confined to the state’s electoral votes. Spreading that influence out nationally ... would give Democrats a leg up on presidential elections. Perpetuating a national popular vote concept as a way to make sure that “every vote matters” just doesn’t pass scrutiny. A review [of] the election data from 2016 reveals that 50.5 percent of the votes that Hillary Clinton received came from the 100 most populous counties in the United States. (California has 15 of these counties, Texas has ten, and Florida and New York have nine each.) Considering that there are 3,007 counties in the United States, this is an eye-pop- ping statistic. In fact, Clinton won 87 of these counties on her way to winning a plurality of the popular vote. Conversely, Donald Trump received 29.1 percent of his total votes from these counties, and he won only 13 of them. Another issue with the National Popular Vote Interstate Compact is that it’s almost certainly unconstitutional. Article I, Section 10 of the Constitution states, “No state shall, without the consent of Congress...enter into any agreement or compact with another state.” According to the Council on State Governments, more than 200 interstate com- pacts are currently in effect. “Twenty-two of them are national in scope, including several with 35 or more member states and an independent commission to administer the agreement,” the group’s fact sheet notes. A compact for a presidential election would undoubtedly have significant national implications and would be far outside the scope of what Congress has previously approved. “Although states sometimes did submit their compacts to Congress for ratification,” Hans von Spakovsky of the Heritage Foundation explained, “there has been an implied understanding that interstate agreements were legitimate as long as they had a limited, specifically local impact and did not affect national prerogatives.”

Continued on page 23

“Another issue with

the National Popular

Vote Interstate

Compact is that it’s

almost certainly

unconstitutional.”

22 Congressional Digest n www.CongressionalDigest.com n June 2020

Continued on page 24

Eichen, continued from page 20

victory. The New York Times’ Nate Cohn penned a similar analysis, estimating that the president “could win while losing the national vote by as much as five percentage points.” No matter the question — be it “Should we reelect the racist?” or “Is health care a right or a privilege?” — we can’t receive an answer if the election is not an accurate representation of the national will. The likelihood a president will be elected with a minority of the popular vote could increase moving forward, and that would further undermine the legitimacy of the Oval Office — perhaps irreparably. As both Wasserman and Cohn note, demographics are a driving force behind a potential electoral vote–popular vote split in 2020. But less reported is the effect of the war over voting rights. Across the country, states under Democratic control are passing pro-voter reforms, such as automatic voter registration, same-day voter registration, or preregistration for 16-year-olds. At the same time, GOP-controlled states — including some swing states — have passed regressive, anti-voter legislation. These measures, such as voter ID laws and burdensome registration requirements, when paired with aggressive voter-roll purges, decrease turnout. This voting-rights divide threatens to become more extreme with additional de- mocracy advances in blue states and repression in red states. When this disparity encounters the Electoral College, it could translate to staggeringly unrepresentative election results. Democrats will continue to expand their popular vote margin while the GOP will hold power disproportionate to their dwindling share of the vote. Opponents of change argue that the Electoral College was meant to protect small- er, rural states from the tyranny of urban population centers, so there is no cause for alarm. But, because almost all states award electoral votes in a winner-take-all fashion, our presidential elections actually render small and rural states irrelevant. Rather, presidential elections are currently decided by swing states, ones that are less racially diverse than the country as a whole and, in 2016, represented only 35 percent of eligible voters. Last presidential election, 95 percent of candidate appearances and 99 percent of campaign spending went to fourteen states. None of them are particularly rural nor, with the exception of New Hampshire, remotely small. The swing states, due to their electoral significance, also have a stranglehold on national policies. The coal industry, for example, has outsize influence because of its prominence in Pennsylvania. So, too, does the ethanol industry because of Iowa. Moreover, U.S. tariffs have disproportionately benefited industries located in swing states, and the battleground states have historically received more in federal grants than the rest of the country. You can’t have a “more perfect union” if you have an imperfect election. Republican and Democratic voters should both be able to agree that this anti-democratic system — one that promotes minority rule determined by a random set of swing states — has no place in the twenty-first century. No party should expect to benefit forever from a system that perpetuates inequality and inaccuracy. The obvious solution is an amendment to the Constitution to abolish the Electoral College. In 1969, there was actually a noteworthy effort to do exactly this, but, after success in the House, it failed in the Senate. Apart from another attempt in 1979, an amendment has been, and continues to be, a pipe dream. Fortunately, there are statu- tory solutions afoot to get closer to a fair count. The National Popular Vote Interstate Compact, for example, is a coordinated campaign to get states to pledge their electoral votes to the winner of the national popular vote. The agreement would only go into effect once enough states, comprising a majority of electoral votes (270), join.

“You can’t have a

‘more perfect union’

if you have an

imperfect election.“

23Congressional Digest n www.CongressionalDigest.com n June 2020

Pye, continued from page 21

Continued on page 25

Supporters of the National Popular Vote Interstate Compact say that approval from Congress isn’t needed, although the group is pushing for approval. [Von Spakovsky] explained that the compact would be problematic because it’s tantamount to an Article V convention that “deprives non-participating states of their right ... [to] decid[e] whether the Twelfth Amendment, which governs the Electoral College, should be changed.” Many say that the Electoral College is undemocratic and that a popular vote concept is democratic, which is why states should dump the former. Undoubtedly, some who make such statements also believe the Senate is undemocratic because it lacks proportional representation. Put simply, the United States isn’t a democracy; it’s a constitutional republic. State legislators should work to defeat National Popular Vote Interstate Compact legislation. The Electoral College isn’t perfect, but it has served the United States well. Although partisan voters may not always like the outcome when their candidate loses a presidential election, the system has served the country well and will continue to serve us well as long as we stick to it.

James Wallner Resident Senior Fellow for Governance, R Street Institute

James Wallner researches and writes about congressional affairs, the federal policy process and the separation of powers at the R Street Institute, a nonprofit and nonpartisan public policy research organization. He is also a professional lecturer in the Department of Government at American University. Prior to joining R Street, Wallner worked in the U.S. Senate in various roles, including as legislative director for Sen. Pat Toomey (R-Pa.) and former Sen. Jeff Sessions (R-Ala.). The following is from his commentary titled, “Why the Electoral College Should be Preserved,” originally published by The Ripon Society in September 2019.

[O]pposition to the Electoral College has become more pronounced in recent years due to the controversial outcomes of the 2000 and 2016 elections. In 2000, Al Gore lost to George W. Bush despite winning approximately half a million more votes nationwide. Hillary Clinton similarly lost the 2016 election to Donald Trump despite having won almost 3 million more votes nationwide. In both elections, Bush and Trump became president because they won more votes in the Electoral College. Earlier this year, [Sen.] Elizabeth Warren, D-Mass., sparked renewed interest in the Electoral College when she proposed abolishing the institution during a presidential town hall. Many congressional Democrats also oppose the institution. In the Senate, Brian Schatz, D-Hawaii, introduced a constitutional amendment recently to abolish it. Steve Cohen, D-Tenn., submitted a similar proposal in the House. The Democrats’ opposition to the Electoral College appears to be motivated at least in part by the fact that it disadvantages them vis-a-vis their Republican competitors in presidential elections. Of course, Democrats do not acknowledge that they base their opposition on narrow partisan calculations. They contend instead that the Electoral College is undemocratic and, consequently, that it undermines the federal government’s legitima-

“The Electoral

College isn’t perfect,

but it has served the

United States well.”

https://www.riponsociety.org/article/why-the-electoral-college-should-be-preserved/
https://www.riponsociety.org/article/why-the-electoral-college-should-be-preserved/
24 Congressional Digest n www.CongressionalDigest.com n June 2020

Eichen continued from page 22

Currently, 15 states and Washington D.C., representing 196 electoral votes, have entered the compact. Four states — Colorado, Delaware, New Mexico, and Oregon — joined [in 2019], a sign of accelerating progress. There is no pathway for the compact to go into effect before the 2020 election — but 2024 remains a possibility. But each state need not wait for the others to realize concrete changes in advance of 2020. All states can better ensure that every vote counts in presidential elections by implementing what is known as ranked choice voting. Under this voting system, voters are allowed to rank candidates in order of preference. If no candidate receives majority support, the last-place vote-getter is eliminated, and their votes are reallocat- ed according to subsequent preference. This process is repeated until one candidate receives at least 50 percent. In 2018, Maine became the first state to implement ranked choice voting for primaries and federal (non-presidential) elections. This year, a group of Maine leg- islators, led by State Senate President Troy Jackson, pushed to expand the program to include the presidential primary and general election. If Jackson’s expansion were to become law, the awarding of Electoral College votes could no longer be skewed or disrupted by third-party candidates. While ranked choice voting would not eliminate the basic inequalities built into the Electoral College, it would ensure that, if states continue to allocate electoral votes via winner-take-all, the candidate that wins a state is actually the candidate that has majority support. To both parties, the words of Thomas Jefferson now serve as a reminder and a warning. “Institutions,” he wrote, “must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.” The Electoral College has been an ill-fitting layer for a long time. For the sake of our democracy, it’s time to throw away the coat.

Darrell M. West Vice President and Director of Governance Studies, Brookings Institution

Darrell M. West heads the Governance Studies program at Brookings Institution, a public policy think tank based in Washington, D.C. His current areas of research include artificial intelligence, robotics and the future of work. Prior to joining Brookings, he was the director of the Taubman Center for American Politics and Policy at Brown University where he taught classes on campaigns and elections. He has written several books, including “Divided Politics, Divided Nation,” published in 2019. The following is from his essay titled, “It’s time to abolish the Electoral College,” which was originally published by Brookings on Oct. 15, 2019.

For years when I taught campaigns and elections at Brown University, I defended the Electoral College as an important part of American democracy. I said the founders created the institution to make sure that large states did not dominate small ones in presidential elections, that power between Congress and state legislatures was balanced, and that there would be checks and balances in the constitutional system.

Continued on page 26

“The Electoral

College has been an

ill-fitting layer for

a long time . . . it’s

time to throw away

the coat.”

https://www.brookings.edu/policy2020/bigideas/its-time-to-abolish-the-electoral-college/
25Congressional Digest n www.CongressionalDigest.com n June 2020

Wallner, continued from page 23

cy. They claim that the institution values voters who live in rural, sparsely populated states, more than those who live in populated states such as California or densely populated urban areas like Los Angeles. Opposition to the Electoral College is not universal. Its proponents, who are predominantly Republican at present, counter that the institution, while complicated, nevertheless incentivizes presidential candidates to assemble super-majority coali- tions to win elections. The institution’s proponents contend that such coalitions are beneficial because they resemble more closely the country at large, thereby helping the successful candidate govern effectively once in office. Notwithstanding the merits of their various claims, the Electoral College’s op- ponents and proponents have more in common than they realize. That is, they both ignore the underlying role played by the institution in American politics. The Elec- toral College, along with the Constitution’s other institutional arrangements, exists to safeguard the space where Americans participate in politics to make collective decisions based on equality. Abolishing it would jeopardize that space and, in the process, exacerbate the federal government’s current dysfunction. That both sides in the debate have overlooked this crucial point suggests that Americans of all political stripes — Democrat, Republican, liberal, and conservative — increasingly think about politics in the same way. Americans, especially those active in partisan politics, often do not think about political institutions in ways that transcend their immediate partisan interests. They no longer see politics as an activity in which they participate. Instead, they see it as a means to an end. Put differently, they think about government in terms of progress, not in terms of specific forms (i.e., monarchy, aristocracy, democracy, etc.). The problem is that thinking about politics as a means to an end distorts our un- derstanding of why the Electoral College matters. In contrast, thinking about politics as an activity forces us to acknowledge the space where that activity occurs. In the process, we gain a deeper appreciation of why the Electoral College matters. Take, for example, Warren’s claim that the Electoral College violates the one person, one vote standard. While Warren is no doubt sincere in her belief, she is nev- ertheless predisposed to oppose the institution because she thinks about it in terms of progress; as a means to an end. In short, the Electoral College makes it harder for her, or any other Democrat, to win a presidential election given present conditions. For Warren, abolishing the Electoral College is a means to achieving her end precisely because she believes that there are, at present, more Democratic voters nationwide than Republican voters. In making her argument, Warren overlooks the fact that her proposal, if successful, would change the very nature of the American regime. That is, abolishing the Electoral College and replacing it with a nationwide popular vote would create, for the first time in the nation’s history, a single common electorate. Admittedly, a national electorate may exist symbolically or culturally, presidents may claim nationwide mandates, and elections can be nationalized. But no government official is currently elected by citizens casting votes in one single national electorate. Likewise, no institution in the federal government represents a single, nationwide electorate directly. Many electorates organized by state instead comprise the Amer- ican electorate. It is important to note that this is not an argument for states’ rights. Instead, it is evident in how John Marshall, the nationalist chief justice of the Supreme

Continued on page 27

“Opposition to the

Electoral College is

not universal.“

26 Congressional Digest n www.CongressionalDigest.com n June 2020

Continued on page 28

In recent years, though, I have changed my view and concluded it is time to get rid of the Electoral College. Several developments have led me to alter my opinion on this institution: income inequality, geographic disparities, and how discrepancies between the popular vote and Electoral College are likely to become more commonplace given economic and geographic inequities. The remainder of this essay outlines why it is crucial to abolish the Electoral College.

Why the Electoral College is poorly suited for an era of high income inequality and widespread geographic disparities At a time of high income inequality and substantial geographical disparities across states, there is a risk that the Electoral College will systematically overrepresent the views of relatively small numbers of people due to the structure of the Electoral Col- lege. As currently constituted, each state has two Electoral College votes regardless of population size, plus additional votes to match its number of House members. That format overrepresents small- and medium-sized states at the expense of large states. That formula is problematic at a time when a Brookings Metropolitan Policy Program study found that 15 percent of American counties generate 64 percent of America’s gross domestic product. Most of the country’s economic activity is on the East Coast, West Coast, and a few metropolitan areas in between. The prosperous parts of America include about 15 states having 30 senators while the less prosperous areas encapsulate 35 states having 70 senators. Those numbers demonstrate the fundamental mismatch between economic vitality and political power. Through the Electoral College (and the U.S. Senate), the 35 states with smaller economic activity have disproportionate power to choose presidents and dictate public policy. This institutional relic from two centuries ago likely will fuel continued populism and regular discrepancies between the popular and Electoral College votes. Rather than being a historic aberration, presidents who lose the popular vote could become the norm and thereby usher in an anti-majoritarian era where small numbers of voters in a few states use their institutional clout in “left-behind” states to block legislation desired by large numbers of people.

Support for direct popular election For years, a majority of Americans have opposed the Electoral College. For example, in 1967, 58 percent favored its abolition, while in 1981, 75 percent of Americans did so. More recent polling, however, has highlighted a dangerous development in public opinion. Americans by and large still want to do away with the Electoral Col- lege, but there now is a partisan divide in views, with Republicans favoring it while Democrats oppose it. For instance, POLITICO and Morning Consult conducted a poll in March 2019 that found that 50 percent of respondents wanted a direct popular vote, 34 percent did not, and 16 percent did not demonstrate a preference. Two months later, NBC News and the Wall Street Journal reported polling that 53 percent of Americans wanted a direct popular vote, while 43 percent wanted to keep the status quo. These sentiments undoubtably have been reinforced by the fact that in two of the last five presidential elections, the candidate winning the popular vote lost the Electoral College. Yet there are clear partisan divisions in these sentiments. In 2000, while the pres- idential election outcome was still being litigated, a Gallup survey reported that 73

West, continued from page 24

“Americans by and

large still want to

do away with the

Electoral College,

but there now is a

partisan divide

in views . . .”

27Congressional Digest n www.CongressionalDigest.com n June 2020

Continued on page 29

Court, described the Constitution’s ratification process in McCulloch v. Maryland: “It is true, they [the people] assembled in their several States,” he wrote, asking, “and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States.” According to Marshall’s logic, the existence of the Electoral College does not violate the one person, one vote standard because all votes count equally in the electorates, or states, where they are cast. Both the opponents and proponents of the Electoral College should acknowledge this fact in the debate over whether it should be abolished. Doing so illuminates the fact that the Electoral College is part of a complex arrangement of constitutional institutions that, working together, ensure that no one group of people rules, whether that group comprises a majority or a minority of the population. To do this, the Constitution established a space that could not be conquered by the majority or the minority and where Americans could participate in politics. That space would not coexist very long with one sovereign people in a single national electorate who could step into the shoes of the king and destroy it, or rule, whenever a majority so chose. Acknowledging the underlying significance of the Electoral College does not mean that it cannot be reformed. Thinking about politics as an activity should not blind us to the fact that we can always do better. But it does force us to consider where we can do better. The longevity of the American Republic suggests that its citizens make things better in the space where politics occurs. In reforming that space, we should endeavor not to create a single national sovereign that will have the power to destroy it. Secur- ing minority rights against tyranny in all its forms requires that we prevent any one group of people from ruling.

Matthew Spalding Dean, Van Andel Graduate School of Government, Hillsdale College

Matthew Spalding teaches constitutional government at Hillsdale College. He also serves as the vice president for Washington operations, overseeing the Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship. Prior to joining Hillsdale, he was the vice president of American studies at The Heritage Foundation. Dr. Spalding has written numerous books on the subject of American history and government. The following is his Aug. 7, 2019, commentary titled, “Why the Electoral College is vital, not outdated,” which was originally published by the Washington Examiner.

Abolishing the Electoral College was once an outrageous suggestion. But with 15 states and counting supporting an interstate agreement to grant their electoral votes to the winner of the popular vote for president, the idea is gaining traction nationwide. Critics call the Electoral College outdated, and see it as an 18th-century relic. This is

Wallner, continued from page 25

“. . . the existence of

the Electoral College

does not violate

the one person, one

vote standard . . .”

https://www.washingtonexaminer.com/opinion/why-the-electoral-college-is-vital-not-outdated
28 Congressional Digest n www.CongressionalDigest.com n June 2020

West, continued from page 26

percent of Democratic respondents supported a constitutional amendment to abolish the Electoral College and move to direct popular voting, but only 46 percent of Re- publican respondents supported that view. This gap has since widened as after the 2016 election, 81 percent of Democrats and 19 percent of Republicans affirmatively answered the same question. The March POLITICO and Morning Consult poll also found that 72 percent of Democratic respondents and 30 percent of Republican re- spondents endorsed a direct popular vote. Likewise, the NBC News and Wall Street Journal poll found that 78 percent of Hillary Clinton voters supported a national popular vote, while 74 percent of Trump voters preferred the Electoral College.

Ways to abolish the Electoral College The U.S. Constitution created the Electoral College but did not spell out how the votes get awarded to presidential candidates. That vagueness has allowed some states such as Maine and Nebraska to reject “winner-take-all” at the state level and instead allocate votes at the congressional district level. However, the Constitution’s lack of specificity also presents the opportunity that states could allocate their Electoral College votes through some other means. One such mechanism that a number of states already support is an interstate pact that honors the national popular vote. Since 2008, 15 states and the District of Columbia have passed laws to adopt the National Popular Vote Interstate Compact (NPVIC), which is a multi-state agreement to commit electors to vote for candidates who win the nationwide popular vote, even if that candidate loses the popular vote within their state. The NPVIC would become effective only if states ratify it to reach an electoral majority of 270 votes. [As of October 2019], the NPVIC is well short of that goal and would require an additional 74 electoral votes to take effect. It also faces some particular challenges. First, it is unclear how voters would respond if their state electors collectively vote against the popular vote of their state. Second, there are no binding legal repercussions if a state elector decides to defect from the national popular vote. Third, given the Tenth Circuit decision in the Baca v. Hickenlooper case, the NPVIC is almost certain to face constitutional challenges should it ever gain enough electoral votes to go into effect. A more permanent solution would be to amend the Constitution itself. That is a laborious process and a constitutional amendment to abolish the Electoral College would require significant consensus — at least two-thirds affirmation from both the House and Senate, and approval from at least 38 out of 50 states. But Congress has nearly reached this threshold in the past. Congress nearly eradicated the Electoral College in 1934, falling just two Senate votes short of passage. However, the conversation did not end after the unsuccessful vote, legislators have continued to debate ending or reforming the Electoral College since. In 1979, another Senate vote to establish a direct popular vote failed, this time by just three votes. Nonetheless, conversation continued: the 95th Congress proposed a total of 41 relevant amendments in 1977 and 1978, and the 116th Congress has already in- troduced three amendments to end the Electoral College. In total, over the last two centuries, there have been over 700 proposals to either eradicate or seriously modify the Electoral College. It is time to move ahead with abolishing the Electoral College before its clear failures undermine public confidence in American democracy, distort the popular will, and create a genuine constitutional crisis.

“It is time to

move ahead

with abolishing

the Electoral

College . . .”

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