September 26, 2020 - 9:00 pm
As of late, a persistent outcry calls for a constitutional amendment to abolish the archaic Electoral College and replace it with a system that awards the presidency to the candidate who gets the greatest number of popular votes.
To examine that claim, start with a bit of constitutional history that explains how the Electoral College evolved.
In its original conception, it reflected a constitutional commitment to republican, not democratic government. In 18th-century political theory, a republic was neither a monarchy nor a democracy. The monarch was a single benevolent sovereign, but popular democracy allowed unruly simple majorities to compromise liberty and confiscate wealth. The Constitution’s “republican form of government” allows popular participation in choosing public officials without a submission to mob rule. A set of indirect elections, for example, gave the legislatures of each state the power to appoint senators. It also set the number of Electoral College members equal to the sum of its members of the House and the Senate in a conscious decision to offer extra protection to smaller states to coax them to join the union.
Originally, the Electoral College was conceived as a deliberative body, which is why the Constitution did not allow senators, representatives or other federal officers to become members, given the possible conflicts of interest.
The system proved an utter disaster by allowing members the obvious opportunity to deviate from the will of the groups that chose them. So to patch that system subconstitutionally, states turned their electors into “pledged delegates” bound to follow strict orders, a rule that continued even after the electors were chosen by popular vote.
The stability introduced into the system stopped political intrigue but left in place the built-in protection afforded to small states. That system survived a 1952 challenge in the U.S. Supreme Court, which left the electors as simple messengers. More recently, in 2016, after Donald Trump’s surprise victory, electors in Washington and Colorado took it upon themselves to disregard their pledges — not to elect Hilary Clinton but to stop Trump. This year, a unanimous Supreme Court gave a bad set of originalist arguments to justify pledged delegates, when its real motivation was to avoid taking it on itself to disrupt a system that had endured for 200 years.
So the issue is now one of constitutional politics. But the same level of caution should be applied to this proposed amendment.
Using a popular vote to elect the president will render the current battleground states irrelevant and transform electoral strategy from the ground up. Each party will campaign heavily in those major metropolitan areas where it has large majorities in order to pad the vote. There are no firewalls built into a nationwide election, so when the inevitable charges of fraud and irregularities spew forth, a nationwide recount will be required that will make Florida’s 2000 recount — which eventually confirmed George Bush’s victory and took more than a month to complete — look like a minor skirmish.
Any proposal to abolish the Electoral College would, therefore, have to be paired with a decision to put into place some system of national control of presidential elections. But it is highly uncertain whether Congress has the authority to remove that power from the states (with their 50 different ornate systems of election law). The Constitution gives the states the power to appoint the electors, whereby the federal government has, as a relic from the initial deliberative Electoral College, only the now meaningless power to set “the Time of chusing the Electors” and the day on which they cast their votes.
Any movement to a popular vote, therefore, will require a further amendment to create at least some federal control over the current process. It seems clear that such an amendment could not specify the details of a system that works for 50 different states. It is equally clear that any delegation of that power to either Congress or to some administrative body to address that issue will lead to gridlock.
We know from the controversial history of the Federal Election Commission that the members of these bodies tend to be highly partisan. Cross-party agreement is often impossible, given that these actors don’t act behind any veil of ignorance but know the precise impact of any reform on their presidential prospects. Indeed since July of this year, the FEC cannot function because political fights over appointments leave it short of a quorum. This for a body whose sole function is to enforce the arcane provisions of the current campaign finance laws. That’s small potatoes compared with overseeing the entire electoral process itself.
Will that new administrative body coordinate its activities with state officials whose rules govern selection of all state officials and possibly members of Congress? Or will the presidential election be held on a separate day, which would remove the coattail effects for choosing members of the House and Senate? Would it allow mail ballots and on what terms? How would it hire the large number of local officials needed to run this popular election? What is to be done if it can’t reach any agreement at all?
It is no coincidence that the push for a national popular vote is driven by Democrats, who remember that Hillary Clinton lost the election with a majority of the popular vote when, smelling victory, she sought to run up the popular vote in California. The short-term fix for Democrats is to run the 2020 campaign to win the Electoral College by not reliving her mistakes.
But the last thing we should want is to enter into choppy waters with an ill-conceived program for popular elections that will burden the nation long after Trump is gone. It is one of the happy accidents that the peculiar historical transformations of the Electoral College stands us in such good stead today.
Richard A. Epstein is a professor at the New York University School of Law, a senior fellow at the Hoover Institution and a distinguished service professor of law emeritus and senior lecturer at the University of Chicago. His Review-Journal column appears quarterly.