Here’s one nice thing we can now say about the Electoral College: it’s slightly less harmful to our democracy than it was just days ago. In a 9-0 decision, the Supreme Court ruled that states have the right to “bind” their electors, requiring them to support whichever presidential candidate wins the popular vote in their state. Justice Elena Kagan’s opinion was a blow to so-called “faithless electors,” but a win for self-government. “Here,” she wrote, “the People rule.”
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A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President.
— U.S. Supreme Court (@USSupremeCourt) July 6, 2020
Yet while we can all breathe a sigh of relief that rogue electors won’t choose (or be coerced) into derailing the 2020 presidential contest, the Court’s unanimous ruling is a helpful reminder that our two-step electoral process provides America with no tangible benefits and near-limitless possibilities for disaster. To put it more bluntly, the Electoral College is a terrible idea. And thanks to the Justices’ decision, getting rid of it has never been easier.
The Electoral College we have today isn’t the one in the original Constitution. Instead, it’s a product of the 12th Amendment – put in place after the 1800 contest between Jefferson and Burr so chaotic it got its own number in Hamilton. For those in need of a refresher, here’s how our current two-part presidential contest works: Every fourth November, Americans participate in separate statewide elections, plus one in D.C. With two exceptions (Maine and Nebraska, which award electors by congressional district), the winner of a state’s popular vote receives all its electoral votes—equal to that state’s number of senators plus its number of representatives. Whichever candidate wins a majority of the electors wins the White House.
Why do we conduct our presidential elections in such a complicated way? Today, the conventional wisdom is that the Electoral College benefits small-population states, rural voters, and the Republican Party. None of this is true.
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In fairness, because electors are apportioned in a hybrid system – 435 of them are distributed proportional to population, while the remaining 100 are divided up equally among the states – places like Wyoming and Vermont do have a bit more clout than they otherwise would. But because the vast majority of votes doled out proportionally, the influence of small states is still pretty puny. In the Senate, California and Wyoming are equals. In the Electoral College, the winner of California gets 55 votes while the winner of Wyoming or Vermont gets just three. In fact, to make up for losing California, you would have to sweep the 15 smallest states and D.C. If the Electoral College is meant to keep small states from being overlooked, it’s doing an awful job.
Similarly, the Electoral College does nothing to elevate the voices of rural voters. The 10 least urban states in the country—Maine, Vermont, West Virginia, Mississippi, Montana, Arkansas, South Dakota, Kentucky, Alabama and North Dakota—have 50 electoral votes. The country’s 10 most urban states (a list that includes not just California and Florida, but low-population states like Utah and Nevada) have 107 electoral votes. If strength in the Electoral College were all that stood between rural voters and political powerlessness, rural voters would be in serious trouble. But they’re not.
Finally, although Donald Trump won the White House while losing the popular vote in 2016, and may do so again in 2020, the Electoral College has not historically favored either party. In 2012, for example, Barack Obama could have lost the popular vote to Mitt Romney by approximately 1.5% and still been re-elected. If states like Arizona, Texas or Georgia go from very slightly red to very slightly blue, which they will if trends continue, the Electoral College math will favor Democrats once again.
Just because the Electoral College doesn’t favor small states, rural states or either party doesn’t mean our Founders didn’t create it for a reason. In fact, as Akhil Amar describes in his book America’s Constitution: A Biography, they were three reasons. First, in a brand-new country connected dirt roads, conducting a direct nationwide election was unimaginable, so it was far better to hold the election in stages. Second, because states had very different requirements for voting, not just involving race but wealth as well, a national popular vote would put pressure on states to make more people eligible to vote, something our Founders weren’t comfortable doing. Finally, because the three-fifths compromise in the Constitution gave states with larger enslaved populations more representatives in Congress – and because a state’s strength in the Electoral College is based mostly on its number of representatives in Congress – Southern states insisted on a system of electors to increase their influence.
The Electoral College, in other words, serves no useful purpose, other than to intermittently and randomly override the people’s will. It’s the appendix of our body politic. Most of the time we don’t notice it, and then every so often it flares up and nearly kills us.
In theory, an appendectomy should be simple to perform. Since the only states the Electoral College advantages are the 10 or so in the battlegrounds, the remaining 40 could team up and pass a constitutional amendment. Such a move would be popular: by a 18-point margin, Americans would prefer to have the popular vote elect the president. And switching to a popular vote would benefit neither party over the long run. Unfortunately, the myths surrounding the Electoral College are powerful enough that politicians from non-battlegrounds are likely to vote against their own states’ interests. If the Electoral College math starts to decisively favor Democrats, we might get a constitutional amendment. Until then, we probably won’t.
Which brings us back to this week’s Supreme Court ruling, which paves the way for us to effectively abolish the Electoral College without needing a constitutional amendment. After all, the same constitutional principles that allow a state to bind its electors to the winner of the statewide popular vote should allow it to bind its electors to the winner of the nationwide popular vote. This means that if states that combine to hold a majority of electoral votes all agree to support the popular-vote winner, they can do an end-run around the Electoral College. America would still have its clumsy two-step process for presidential elections. But the people’s choice and the electors’ choice would be guaranteed to match up every time.
Many states are already on board with an agreement, called the National Popular Vote Interstate Compact, which would do exactly that. The beauty of the compact is that it only goes into effect when it would bind a majority of electors to support the winner national popular vote – and today, it’s just 74 electoral votes away from that threshold. Getting the remaining states to sign on won’t be easy, but it will be far easier than amending the Constitution. And it would ensure that the American President is the person the American people choose. Democrats might not be better off in the long run. Republicans might not be better off in the long run. But ultimately, our republic would be better off in the long run—and the Court’s ruling today clears up many of the potential constitutional hurdles the compact might face.
Justice Kagan’s words – “Here, the People rule” – are stirring. But today, they are still more aspiration than declaration. By declining to make the Electoral College an even great threat to our democracy, the Court did its job. Now it’s up to us. If you live in a state that hasn’t joined the interstate compact, you can urge your state legislators and your governor to sign on. And no matter where you’re from, you can dispel the myths about the Electoral College and who it really helps, myths that still lead some people to support it despite its total lack of redeeming qualities.
More than 215 years after the Electoral College was last reformed with the 12th Amendment, we once again have the opportunity to protect our presidential-election process and reassert the people’s will. Regardless of who wins the White House in 2020, it’s a chance we should take.