14
September 20
Trump’s Presidency, and the risk that it will recur despite his persistent unpopularity, reflects a deeper malignancy in our Constitution that must be addressed.
“In 1961, Estes Kefauver, the
crusading Democratic senator from Tennessee, denounced the Electoral College as ‘a loaded pistol
pointed at our system of government.’ Its continued existence, he said, as he
opened hearings on election reform, created ‘a game of Russian roulette’
because, at some point, the antidemocratic distortions of the College could
threaten the country’s integrity.
“Judging
from Twitter’s obsessions, at least, that hour may be approaching. The polls
indicate that Donald Trump is
likely to win fewer votes nationally than Joe Biden this fall,
just as he won fewer than Hillary Clinton, in 2016. Yet Trump may still
win reelection, since the Electoral College favors voters in small and rural
states over those in large and urban ones.
“Last
week, a new book by Bob Woodward revealed how Trump lied, in the early weeks of
the pandemic, about the severity of the coronavirus, even though that put
American lives at risk; the thought that a reelected Trump might feel
triumphantly affirmed in such mendacity is terrifying. But criticizing the
Electoral College simply because it has given us our Trump problem would be
misguided. His Presidency, and the chance that it will recur despite his
persistent unpopularity, reflects a deeper malignancy in our Constitution, one
that looks increasingly unsustainable.
“James Madison, who helped conceive the Electoral
College at the Constitutional Convention, of 1787, later admitted that
delegates had written the rules while impaired by ‘the hurrying influence
produced by fatigue and impatience.’ The system is so buggy that, between 1800
and 2016, according to Alexander Keyssar, a rigorous historian of the
institution, members of Congress introduced more than eight hundred
constitutional amendments to fix its technical problems or to abolish it
altogether.
“In
much of the postwar era, strong majorities of Americans have favored dumping
the College and adopting a direct national election for President. After
Kefauver’s hearings, during the civil-rights era, this idea gained momentum
until, in 1969, the House of Representatives passed a constitutional amendment
to establish a national popular vote for the White House. President Richard Nixon called it ‘a
thoroughly acceptable reform,’ but a filibuster backed by segregationist
Southerners in the Senate killed it.
“That defeat reflects the
centrality of race and racism in any convincing explanation of the Electoral
College’s staying power. In the antebellum period, the College assured that
slave power shaped Presidential elections, because of the notorious
three-fifths compromise, which increased the electoral clout of slave states.
Today, it effectively dilutes the votes of African-Americans, Latinos, and
Asian-Americans, because they live disproportionately in populous states, which
have less power in the College per capita. This year, heavily white Wyoming
will cast three electoral votes, or about one per every hundred and ninety
thousand residents; diverse California will cast fifty-five votes, or one per
seven hundred and fifteen thousand people.
“Electoral College abolitionists,
knowing that the last successful constitutional amendment addressing the
College was adopted in 1804, have in recent years embraced a clever workaround,
called the National Popular Vote Interstate Compact. Fifteen states and the
District of Columbia have passed bills containing identical language pledging
to cast their electoral votes for the Presidential candidate who wins the most
votes nationally.
“The jurisdictions in the compact currently
have a hundred and ninety-six electoral votes among them, seventy-four short of
the two hundred and seventy needed to bring the compact into effect, thereby
guaranteeing that the candidate who wins the largest number of votes in the
relevant constituency—the United States, not just the handful of ‘battleground’
or ‘swing’ states—wins the College and gets the job. If the National Popular
Vote plan ever succeeds, it would elide some problems, such as the current
system’s reliance on winner-take-all plurality voting, but it would fix the
most egregious deficit: the undermining of one person, one vote.
“The various arguments advanced
for and against the Electoral College seem to outnumber the stars. A book
issued by the group promoting the National Popular Vote plan runs a thousand
pages, refuting no fewer than a hundred and thirty-one ‘myths’ about the way we
elect our Presidents. But the basic case for a national popular vote is simple
and appealing. To be fair, the case made by supporters of the Electoral College
also relies on a clear foundation: the role of federalism in the American
experiment.
“Some who favor the status quo
fear that a nationalized Presidential vote would also nationalize American
politics and undermine states. In fact, the constitutional powers of state
governments and the role of the Senate, whose membership advantages small
states over large ones, would, among many other continuing features of
federalism, insure that the United States remains a ‘consensus democracy,’ in
the phrase of the political scientist Arend Lijphart—that is, one in which, by
design, we must grapple with divided power.
“A
few days after the 2016 election, Trump told Lesley Stahl, of ‘60 Minutes,’
that he had ‘respect’ for the Electoral College, but would ‘rather see it where
you went with simple votes. You know, you get one hundred million votes, and
somebody else gets ninety million votes, and you win.’ Like so many of his
statements, this one proved unreliable. And, as his supporters realized that he
had become President because of the Electoral College, their preference for the
institution hardened.
“In
2012, fifty-four per cent of Republicans and Republican-leaning independents
favored replacing the College with a national popular vote, according to the
Pew Research Center, even though George W. Bush, too, had lost the popular
vote, in 2000. Today, only a third of them take that position. The National
Popular Vote project relies mostly on the backing of Democrats and blue states;
after Trump, it will not be easy to revitalize cross-party support. Yet a
Presidential election decided by the popular vote might very well improve our
rancid politics. A Republican Party with an incentive to compete for votes in
California and New York, for example, might be less tempted by white
nationalism.
“Whenever
the Trump years pass, our democracy, assuming that it endures, will face a
major repair job. There will be new laws, one hopes, to prevent future Presidents
from owning hotels down the street from the White House, and from withholding
their tax returns, and from using the Justice Department as a personal law
firm. To tear at the roots of Trumpism, however, will require much more. The
Electoral College is a legacy of ‘distrust of the people,’ as Kefauver put it,
and an artifact of racial injustice. If we haven’t learned by now that it must
go, what will it take?” (RSN).
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