A Belated Response to My Colleagues

Guest Blogger

Alex Keyssar 

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020) – as well as Edward Foley, Presidential Elections and Majority Rule:  The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College (Oxford University Press, 2020).

First: my apology for the extraordinary lateness of this contribution to an excellent symposium.  Like Jesse Wegman, who filed his (far less belated) response in late January, I was swamped by Electoral College-related (and book-related) demands on my time from the early fall of 2020 through the unexpectedly prolonged aftermath of the election. I thought that I had finally found the space to focus on my overdue response by the second week of January, and I wrote to Jack Balkin to ask if an essay from me would still be welcome.  (He graciously told me to just send it on.)  But shortly thereafter, in the gripping aftermath of January 6, I decided to create a new spring course about the extraordinary events of that day as well as the forces and factors that had led up to the “insurrection” at the Capitol.   That course ended up consuming my energies for five months. 

Second, my thanks to Jack Balkin and to the participants in this symposium:  Jack Rakove, Sandy Levinson, Franita Tolson, Ned Foley, and Jesse Wegman.  In reading and re-reading the original  essays as well as Jesse’s astute response, I am struck by the breadth and diversity of the intellectual perspectives, as well as by the uniform strength of engagement not only with the books at hand but with the compelling problem of how to deal with a presidential election system that is profoundly flawed but extraordinarily difficult to fix.  No writer of a book could ask for more than to be included in such a conversation.  That the participants have been generous in their responses to my lengthy tome is also appreciated. 

And now a few more substantive thoughts/comments/reactions.

1. Despite the varied perspectives, there is a broad consensus in these essays:  that the Electoral College is a problematic and undemocratic mechanism for choosing presidents and that it ideally ought to be replaced by a national popular vote, instituted through a constitutional amendment.  There is also agreement that achieving that desirable goal will be, at best, extremely difficult, and, perhaps, impossible – at least in any readily foreseeable future.  I am, alas, all too aware that my book may reinforce, or contribute to, that pessimism.  Although I attempted, in the book’s conclusion, to highlight some reasons to be more hopeful, the story I tell is, inescapably, a story of two centuries of failure.  I cannot easily gainsay Sandy Levinson’s conclusion that “all of the stars appeared to be aligned in 1969, and it still was not enough,” or Ned Foley’s observation that “Americans remain stuck with a system they do not embrace.”

2. This pessimism about achieving the most desirable reform leads both Wegman and Foley to explore alternative approaches – as numerous advocates of a national vote (from Oliver Morton in the 1870s to Henry Cabot Lodge in the 1940s) have done for two centuries. (The alternatives pressed by leaders like Morton and Lodge, however, still involved constitutional amendments.)   Jesse’s deft and skillful book is, in part, a brief for the National Popular Vote Interstate Compact, and he makes a strong case that the compact is a promising avenue to achieve an equivalent, or facsimile, of a national popular vote.  That view has garnered substantial support in the election reform community and among editorial boards, including that of Wegman’s own NY Times.  But in this symposium, Jesse finds no strong allies.  Rakove argues that the compact would founder for constitutional reasons (a charge that Wegman disputes), and Rakove’s view is shared by other (but not all) constitutional scholars.  (Since I am neither a scholar of the Constitution nor a lawyer, I’ll resist weighing in on this issue.) Franita Tolson dismisses the compact as a “band-aid.” Both Foley and Levinson believe that the compact is significantly flawed because it cannot guarantee that the election winner will have the support of a majority of voters and because an election could still end up being decided by the outmoded and profoundly undemocratic “contingent system” in the House.   They also worry about the compact’s stability and susceptibility to prolonged litigation, especially in the case of a third-party “spoiler.” 

I also have concerns about the instability of the compact – partly for the reasons Foley and Levinson spell out and also for a somewhat different reason:   even if the NPVIC were to clear all of the political and constitutional hurdles and actually become law, there is little reason to believe that it would remain in force permanently – or even for very long.  Imagine that an election were conducted according to the compact, and two or three states found themselves casting their electoral votes for candidates who had lost the popular vote in their states.  Even if those states did not try to legally wriggle out of their commitment for that particular election (as Ned and Sandy worry), their legislatures would surely come under intense popular pressure to withdraw from the compact over the next few years – which they would be entirely free to do.  If a sufficient number of states (it could be just one or two) left the compact, then it would no longer be in effect, and the subsequent election would be conducted according to “old Electoral College” rules rather than compact rules.  Not a good outcome.

Political parties and factions, moreover, would then surely try to game the system – to figure out which kind of presidential election they wanted to have in a particular election year.  The result would be confusion, chaos and a loss of legitimacy for either electoral process.  (An historian’s note:  this would be reminiscent of the chaos and confusion that did mark presidential elections from 1800 into the late 1820s – as different states switched their method of choosing electors [from district popular vote to winner-take-all to selection by the legislature. . . or vice versa], from one election to the next. That instability led to a concerted reform effort and to the Senate repeatedly passing a constitutional amendment mandating district elections. The complicated and somewhat fortuitous path through which things stabilized late in that era is the subject of Chapter 2 of my book.) 

I also share Ned’s view that the compact is neither sufficiently transparent nor broadly accepted (as a process) to confer the kind of legitimacy that the winner of a presidential election must have.  (The need for such legitimacy seems even more compelling in June 2021 than it did a year ago.) I say this as someone who was initially and publicly supportive of the compact more than a decade ago.  I did not believe, even then, that the compact was the best way to elect a president– but I was convinced that it offered a potentially fruitful pathway to build support for Electoral College reform.  My hope (which was not that of the compact’s creators) was that such support would eventually give rise to an amendment process.  Indeed, I remain hopeful that this might transpire-- that the immense and dedicated effort that has gone into the compact over the last fifteen years will segue into a political mobilization for a more durable and less problematic solution. 

2a.  Both Jack and Sandy observed that my treatment of the NPVIC in my book was “tempered,” i.e. that – although I discussed the compact at some length -- I did not take any particular stand for or against it.  That was not an accident – or mere equivocation.  My book was/is a work of history, rather than advocacy, and I consequently sought to describe and analyze the compact historically, to understand why it appeared when it did, how it gained strength, and the reasons that its successes, although considerable, have thus far been limited.   I cling, perhaps nostalgically, to the notion that history and advocacy can be distinct forms of intellection and writing – and that an individual can be both an advocate and an historian.

3. I agree in principle with Ned’s emphasis on designing an electoral system that will guarantee that the winner of the election will have the support of a majority of voters.  I would, thus, have no difficulty supporting the simple and straightforward constitutional amendment that he proposes:  an amendment that requires the president to be elected by a majority of the national popular vote and that leaves the rest of the apparatus to be worked out by Congress. (Ned is correct that the almost-successful 1969-70 effort ran into some late-breaking headwinds over the prospect of holding a runoff or the possibility that a president could be elected with only 40 percent of the vote.) Yet Ned himself is pessimistic about the prospect of passing such an amendment (because of Republican opposition), and he offers as an alternative a process through which all states would – gradually – adopt ranked choice voting, while retaining the basic structure of the Electoral College;  and perhaps eventually form a compact of those states that have implemented RCV and even pool their electoral tallies.   Count me a skeptic on that one:  the historical record suggests that state-by-state efforts are difficult to sustain, and I fear that we would end up with a bizarre checkerboard of electoral processes that would neither be well understood nor embraced by the voting public.  Maybe I’m holding out for too much, but I do think that electoral systems ought to be simple, straightforward, and easily grasped by the electorate;  if we are going to go to the (substantial) trouble of changing our system, the new one should have those qualities. 

4. As something of an aside (but not unrelated to Ned’s concerns), I think that those who regard an amendment for a national popular vote as a hill too far (or a Mt. Everest, in Sandy’s words) ought to give serious consideration to the idea of an amendment requiring all states to divide their electoral votes in proportion to the percentage of the popular vote received by each candidate.  This second-best idea has been around since the 19^th century (it solved the gerrymandering problem that bedeviled district election proposals) and was approved in an amendment resolution in the Senate in 1950.  It would not dissolve all of the inequalities built into our electoral system, but, by jettisoning winner-take-all, it would eliminate many of the system’s most severe problems and bring the electoral vote into closer conformity with the popular vote.  Arguably at least, it might be more politically palatable (than an NPV) to those who wish to keep presidential elections under the control of state officials and to small states who would not lose their “senatorial” advantage in electoral votes.

5. Finally, let me turn to Franita Tolson’s astute commentary about the politics of it all.  Surely, she is correct that “the possibility of anti-democracy within our system” was built into the electoral system’s original design and, more tellingly, the Twelfth Amendment.  That possibility resided both in the bases on which electoral votes were allocated to the states and in the ability of the individual states to choose (and change) the mechanisms through which those votes would be cast.  If the framers in 1787 can be excused or forgiven because they had no conception of parties or the workings of partisanship, the same cannot be said of the framers of the 12^th amendment:  they had witnessed a dozen years of machinations and manipulations of the electoral system.  (Perhaps the recent efforts of Republicans to alter the rules and procedures around the 2020 election may help us to grasp more fully the shock generated by Virginia’s decision in 1800 to abandon the district system in favor of the “general ticket” or winner-take-all.)  That the authors of the 12^th Amendment  chose to solve the “Aaron Burr” problem while declining – for partisan reasons that ran counter to their own principles -- to mandate district elections (which would have ended most of the machinations) did guarantee that politics would remain central to the electoral process.

That was a decisive and telling moment – not least because the Democratic Republicans appear to have had the votes (with the aid of some Federalists) to pass a district elections amendment.  (It is also an historical moment that is worthy of further research:  I know that I was not able to penetrate the primary sources as deeply as I would have liked.)  That said, I think that we misread the moment if we conclude that the D-Rs in 1803 were knowingly deciding to permanently entrench politics in the electoral system; it can be hazardous to deduce intentions from consequences.  Many of them (I partly know and further suspect) believed that they could return to that subject at a subsequent date, and, indeed, they did so repeatedly, particularly as the manipulations of the system became more and more pronounced.  Between 1812 and 1826, Electoral College reform was always a prominent item on the congressional agenda (in part because of agitation from the states), and, as noted above, a district elections amendment (coupled with reform of the contingent process) passed the Senate four times and, on one of those occasions, came within a few votes of passing the House as well.  Most members of Congress, it seems, regarded the electoral system as very buggy!  This whole episode may be a vivid – and consequential – lesson for political actors that measures that stand a good chance at passage at one moment might well prove to be more difficult to pass a few years later.  Perhaps it’s up there with the decision to remove universal health insurance from the Social Security Act of 1935.

All of that said, I concur with Franita’s comment (building in part on Jesse’s book) that to regard the EC as a “creature of pure politics” also opens up possibilities.  Political values change; in the longish arc of history, our nation has become more democratic; and a widespread commitment to democratic values still could topple the EC.  The moment that we are living in now does not seem very auspicious, but it is at least imaginable that the resolution to our current conflicts/crisis could be a re-embrace of democratic values.    

6. This leads to my final comment and to Jack Rakove’s vivid plea that, despite the evident obstacles, we ought to be thinking hard about Article V and amending the Constitution to provide a durable fix to our presidential election problems. “The challenge for us is not to wallow in a Carterian malaise about its impossibility, but to strategize how it could take place.”  I agree with Jack about that (and admire his metaphor).  This is not to say that I think that all other strategies for reform ought to be abandoned, but those of us who want to see change might well want to give primacy to approaches that will fully solve the problem, that match our values, and that can readily be grasped and embraced by the electorate. 

Given current (and recent) political conditions, some may regard the Article V notion as a waste of time or, even worse, a form of insanity:  doing the same thing over and over in the expectation of a different result.  But we should remember that seven decades of failure preceded the passage of the 19^th amendment and that the Voting Rights Act was passed seventy-five years after its precursor, the Federal Elections Bill of 1890, was narrowly defeated.  In 1956, a proposal to replace the Electoral College with a national popular vote garnered 17 votes in the Senate; fourteen years later, it received 57.  Not enough for a victory, but remarkable progress.

For the time being, Electoral College reform is on the back burner – both because of the certainty of vehement opposition and because   democracy advocates are busy struggling to protect the right to vote, end partisan gerrymandering, and reduce the influence of large gobs of (especially dark) money.  But the problems with our presidential elections will return to center stage soon enough, and we all need to continue wrestling with the best (and second-best) ways to address them.

Alex Keyssar is Matthew W. Stirling, Jr. Professor of History and Social Policy at the Harvard Kennedy School of Government. You can reach him by e-mail at Alex_Keyssar at hks.harvard.edu.