Sunday, October 11, 2020

Reflection And Choice About A True Constitutional Imbecility

Sandy Levinson

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).

Although this symposium was originally envisioned as discussing only Jesse Wegman’s Let the People Pick the President:  The Case for Abolishing the Electoral College and Alex Keyssar’s Why Do We Still Have the Electoral College?, I am including as well Edward B. Foley’s equally fine book, Presidential Elections and Majority Rule:  The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College.  It was published somewhat earlier in the year, but all of them deserve readers and discussion.

Wegman, a former lawyer who is now on the editorial board of the New York Times, has written, as Jack Rakove suggests, a book designed for the widest audience.  It is a forthright and, to my mind, completely convincing attack on retaining the electoral college at all; it would make a perfectly suitable gift to any friend who wants to know what the fuss about the electoral college is about. It is written in a conversational style that is truly reader-friendly.  Keyssar and Foley are both academics, Keyssar at Harvard, Foley at Ohio State, and their books are, perhaps necessarily, denser.  But all are extremely well written and accessible.  One could do much worse than give all three as presents!  

My blurb for Foley’s book reads, “Nobody writes more thoughtfully about the theory and historical practices of American elections than Foley.  This book is a model of careful argument.”  I happily stand by that, just as I would write equally enthusiastic, though somewhat differently phrased, endorsements of the other two.   To put it mildly, this is a more extended essay than originally envisioned, and not only because I have added Foley to the mix.  I am therefore dividing it into two parts, the first of which will be published today, the second tomorrow.  I will focus first mostly (though not exclusively) on Keyssar’s book, which is both the longest and contains the most historical material.  Tomorrow I will turn more to the suggestions offered by Foley and Wegman as to how we might escape the current iron cage constructed by the present electoral college system. 

Keyssar is less of an advocate than the other authors; he is primarily interested in what accounts for the endurance of a part of the Constitution that has been systematically attacked since at least 1816, though one of his explanations is the barriers placed in the way of formal constitutional amendment.  This did not, obviously, prevent the important Twelfth Amendment, a focus of Foley’s book, from being proposed and ratified after the fiasco of the Jefferson-Burr tie vote of 1800, in time for the 1804 election.  But that is the last such amendment, and all three authors appear to agree that the prospects for amendment in the foreseeable future are minimal.  Wegman, like Foley, offers enthusiastic support for a “workaround” that avoids climbing the Mount Everest of the amendment process.  Their respective suggestions, though, are quite stunningly different.  I shall elaborate them tomorrow.

Keyssar has given us the definitive book not so much on the pros and cons of the electoral college—save indirectly through quotation from many of the congressional debates he analyzes—but, rather, on the political history of the now 200-year saga of proposals to modify or get rid of it, all of which have failed.  Along with learning a lot about the electoral college and its operation as a part of American politics, one also learns a great deal about American politics.  As Rakove suggests in his contribution to this symposium, perhaps the most important single lesson involves the effective stranglehold over important aspects of our national polity enjoyed by white Southern segregationists (and, obviously, white supremacists) basically since the end of the very limited, and ultimately unsuccessful, attempt at “regime change” that we label “Reconstruction.”  From the very origins of the electoral college until today, it has served as an ally first of slaveowners and later of those determined to minimize the participation in the electorate of African-Americans.  The mechanism by which electors in effect creates incentives for ruling elites in any given state to suppress the actual vote.  A 1-0 vote in favor of one’s political favorite is far “better,” from the perspective of a ruling class, than a one million to 999,999 vote in favor of their opposition.  The first will, in almost all states (save Maine and Nebraska) award the entirety of the state’s electors to the hegemons’ favorite candidate.  The second, obviously, works to the opposite effect.  The “rational choice” of those in power is as much to minimize the turnout of one’s political opponents as to generate turnout from their supporters, especially, of course, if one suspects that one would lose if everyone in fact turned out in a fair and open election. 

The Fifteenth Amendment was a practical nullity in roughly one-quarter of the country from the end of the 19th century until the aftermath of the passage of the Voting Rights Act of 1965.  That Act, perhaps the most important single piece of legislation in the 20th century from a systemic perspective, had the consequences that Lyndon B. Johnson predicted:  It destroyed the existing Democratic Party in the South, based as it was on white supremacy, and created at the same time the modern Republican Party, itself all-too-willing to fully adapt to Donald Trump’s ill-disguised racist dog whistles and, altogether relevantly, to devote itself, often with the approval of the Republican Supreme Court, to various measures designed to suppress the turnout of African-Americans who tend to be disproportionately Democratic in their sympathies.    

I was tempted to describe the electoral college as perhaps the defining example of “American exceptionalism,” but it is essential to realize that none of the fifty American states now come close to emulating the national practice.  The closest was Georgia, which used for many years what they called the “county-unit” system that, as the name suggests, gave significantly more practical power to Georgia’s rural (and whiter) counties than to the Atlanta area; this, however, was declared unconstitutional by the Supreme Court as a blatant violation of what has come to be called the “one-person/one-vote” requirement.  No reasonable person could defend the electoral college system as complying with such a standard.  Consider only the fact that in the 2016 election, the 39 million people of California—roughly two million more than live in the twenty-one smallest state, plus the District of Columbia, combined, received only 55 electoral votes, while the 21 states plus D.C. got a total of 95. 

Even though Keyssar demonstrates, much to the reader’s surprise, that small states have not necessarily been avid supporters of retaining the status quo, they clearly do benefit, at least collectively, even if not so much as in the egregious United States Senate.  After all, in the remarkable election of 2000, while all of the attention was placed on Florida and “hanging chads,” nobody noticed that Al Gore received only five electoral votes for carrying New Mexico even as George W. Bush won the presidency, in effect, by receiving nine votes by carrying Wyoming and the two Dakotas.  Not surprisingly, their total populations were almost identical, but it just didn’t matter.  This is just the way the “state unit” system works, whatever the Supreme Court had suggested in Gray v. Sanders when invalidating Georgia’s “county unit” system.  There is, as Wegman suggests, no principled defense for the difference in the way these two systems are treated in our constitutional order.

So what does explain the maintenance of a system that has been relentlessly criticized since at least 1816, when Senator Abner Lacock of Pennsylvania became the first solon to suggest reforming the electoral college system to provide for a national vote?  Keyssar offers a suitably complex explanation.  First there is sheer path dependence, that is, the inertial force behind any decision made or structures adopted by the Framers in 1787. One must also account for the vagaries of history and, very importantly, the degree to which shifting partisan political considerations operated to make reform, whether in 1816 or today, seemingly impossible.  That is particularly true if one envisions reform as requiring a constitutional amendment proposed by Congress.  One must first get the assent of two-thirds of each House of Congress and then ratification by three-quarters of the states.  Unlike the case with, say, the Equal Rights Amendment, we will never know whether the three-quarters requirement would in fact prove fatal to a congressionally proposed amendment; it has simply never been the case that both the House and Senate agreed to suggested reforms.  Each, on occasion, has, but the other body did not agree.  So nothing happened. 

Again, the central question is why.  One answer, particularly attractive to modern political scientists, might simply focus on the fact that the Electoral College is in fact a complex system that consists of four quite different aspects, each of which poses its own problems:  The first is that it generates the possibility that the candidate who comes in first in the popular vote loses the presidency to the candidate who gets a majority of the electoral vote; this occurred, of course, in 2000 and 2016, as well as 1888 and, arguably, 1876.  Second, there is the fact, recognized early on, that the “general ticket” system—what we today call the “winner-take-all” feature by which all states except Nebraska and Maine allocate the entirety of their vote to the winner—leaves the supporters of the losing candidate without any representation at all among the multiplicity of “electors” who officially cast the ballots that in turn “really” elect the president.  If, as the Supreme Court suggested in Reynolds v. Sims, the 1964 decision that established “one-person/one-vote” as the ideological standard for the operation of American democracy, that principal entailed “fair and effective representation,” then the electoral college hopelessly flunks the test. 

Imagine that a state elected all of the members of its state legislature by a state-wide winner-take-all vote.  The party getting the most votes in a state-wide election for the state house of representatives or senate could get all of the seats.  As David Boies argued before the First Circuit Court of Appeals last year, in a suit challenging the constitutionality  of “winner-take-all,” it would be as if Republicans could be completely frozen out of the Massachusetts legislature (or Democrats from the Texas legislature) if they came in second in a state wide at-large election.  In fact, if the electoral college were the model, it wouldn’t even be necessary for the Democrats or Republicans in these two states to gain an actual majority of the votes; it would be enough simply to come in first in a multi-party contest.  So, for example, George W. Bush got all of Florida’s electoral votes, and therefore the presidency, even though he received only roughly 48% of the popular vote in that state.  Why shouldn’t the GOP get 100% of the legislative seats with, say, 40% of the vote, if that is more than the 38% won by the Democrats and 22% won the the Green Party?  I mean this to be a rhetorical question, but the way the electoral college is structured makes it all too relevant.

But wait, there’s more.  What if no candidate receives a majority of the electoral vote (or, as happened in 1800, the top two candidates tied)?  Well, the Constitution provides for what became called the “contingent election”:  The House of Representatives would pick the winner, on a one-state/one-vote basis.  This meant that the smallest and largest states would have equal power to determine who became president.  Twice we have been subjected to such “contingent” elections, in 1800 and 1824, and in neither case was it a pretty process.  Civil war seemed possible in 1801 before Delaware’s Federalist representative James Bayard assented, on the 36th ballot, to accept the election of Thomas Jefferson over Aaron Burr by abstaining (and encouraging some other Federalist representatives similarly to abstain and thus allow their hitherto tied delegations to vote for Jefferson).  In 1824, what Andrew Jackson and his supporters quickly termed the “corrupt bargain” allowed John Quincy Adams to prevail even though he had failed to come in first in either the popular or electoral vote.  As Keyssar demonstrates, almost literally no one defends this feature of the electoral college system; defenders of the electoral college—and there are some—simply avert their eyes from the possibility of a “contingent election,” offering their hopeful assertions that it just couldn’t happen today.  As he notes, many presumably astute observers assured the public in the 1970s and ‘80s that there was no real possibility of a “wrong winner,” since that hadn’t happened since 1888 and was, therefore, simply, like amber, a feature of a past that we could simply ignore.  One of the things that Keyssar’s book does is to point out the foolishness of many such confident assertions about the operation of the system.  

And, in fact, there’s still more:  Are electors to be viewed as having genuine discretion in casting their ballots or, instead, are they basically mindless agents of those appointing them?  Generally speaking, the Constitution does not allow for “instructed” federal representatives.  There are various incentives for representatives and senators to take their constituents into account when voting, but it is also true that, unlike in some other countries, they are permitted not only to vote against their party leaders (and, possibly, their constituents’ wishes), but also even “to cross the aisle” and, like Alabama Senator Richard Shelby or Pennsylvania Senator Arlen Specter, betray their respective Democratic and Republican supporters and take on new political spots.  However, the Supreme Court decided only this past July, in Chiafalo v. Washington, that presidential electors are different, that they can indeed, be “instructed” by their state legislators, on pain of punishment, to mindlessly adhere to their voters’ presumed partisan desires.  Even if one agrees with the decision as a matter of policy—and I don’t—the Court’s unanimous decision was a travesty of what several of the justices claim to care about, i.e., “original intent,” however defined.  As Hamilton made crystal clear in Federalist 68, perhaps the principal defense of the electoral college was precisely that the electors, as leaders of the political community, would protect the public from a demagogue in the presidency.  They would serve as an indispensable filter against someone clearly unsuitable to hold the office.  The Court was stunningly indifferent to retaining that possibility. 


As political scientists delight in pointing out, it is extremely difficult, even in the best of systems, to achieve closure where a given public policy problem includes more than two possibilities.  That is precisely the case with the electoral college system.  For a variety of reasons, it has never been possible to focus simply on one of the problems and to ignore the others.  The “contingent election” system, for example, greatly enhances the power of small states and it is unclear that they would be altruistic enough to give it up, any more than one would expect them to agree that the affirmative-action-plan-for-the-residents-of-small-states that we call the Senate is also indefensible. Getting rid of the winner-take-all system, another reform that some believe is devoutly to be wished, would require the approval of the dozen or so “battleground” states that benefit from the quadrennial pandering of candidates and the inordinate attention paid their residents by journalists.  And it’s not clear that ruling elites in large non-battleground states would readily offer their political opponents the opportunity to get at least some electoral votes instead of realizing that their participation in presidential elections is truly irrelevant if they are not part of the privileged majority.  So one has to put together a “reform” proposal that addresses all of the most problematic features of the electoral college system:  the “general ticket” depriving political minorities within a state of an iota of representation in the “college” that chooses presidents; the fact that the electors can be awarded without the winner gaining even a majority of the vote within a given state; the fact that a candidate can unequivocally lose the national majority vote and still win a majority of electoral votes; and, finally, the possibility that should, for example, there be a viable third party candidate who in fact picks up some electoral votes, none of the candidates would get the magic majority and the decision would be made by the House of Representatives on a one-state/one-vote basis.  (The Senate, incidentally, would choose the Vice President, so it is thinkable, given a “divided” Congress, that we could revert to the halcyon days of 1796, when John Adams had as his vice president his bitter opponent Thomas Jefferson.)


The closest we got to reform was 1969, and both Keyssar and Wegman tell the near-heartbreaking story of how Birch Bayh was not able to shepherd his constitutional amendment providing for a popular election through the Senate even after the House had voted by more than 2-1 in its favor.  The ultimate reason is that Southern senators, led by Sam Ervin and Strom Thurmond, were able to filibuster the legislation.  We often tend to think of Ervin as the Constitution-loving sheriff who presided over the Senate Watergate hearings in 1973.  That he was, but he was also an old-fashioned, albeit courtly, white supremacist who fought against any and all civil rights bills while he was in the Senate.  From his and Thurmond’s perspective, changing the electoral college was the equivalent of a civil rights bill, to be opposed at all cost inasmuch as shifting to a nationwide popular vote would remove the immense advantage that white supremacists got from suppressing the African-American vote.  That turns out to have been the last genuine political opportunity to address the electoral college.

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