Friday, October 09, 2020

Article V: There Is No Other Way

Guest Blogger

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).

 Jack Rakove

             Back in the early 1970s, when my old friend Alex Keyssar and I were Harvard graduate students, we were part of an occasional “politics table” at Leverett House featuring John Rawls and Judith Shklar. As one can imagine, that was an intellectually heady experience, even though Rawls had the worst stutter I have ever encountered. Reading Keyssar’s new book, the early parts of which I reviewed in manuscript, I found myself thinking about Rawls’s celebrated “veil of ignorance” as one speculative remedy for the frustrating history of Electoral College reform that Keyssar recounts in fascinating if often gloomy detail. If we could put the whole American body politic behind such a veil and ask them to create a new mechanism for the selection of a president, would they not be driven to adopt the mode of election that most readers of this symposium likely prefer: a national popular vote, to be conducted in a single constituency (let’s call it the collective United States of America, as opposed to fifty electorally autonomous states and the District of Columbia), with a requirement that the winner be selected with either (let’s say) at least 45% of the vote or if necessary, in a runoff requiring an actual majority for victory.

            Alas, the conceptual genie that the philosopher can deploy is not for sale to historians, who have to deal with really existing people inhabiting specific moments and contexts. In that world, we are perpetually ignorant about what the next day will bring, but always alert to calculations of our political interests and preferences. In the language of Federalist 10, we know that leaders and citizens remain subject to the opinions, passions, and interests that dominate our political behavior, and lack the intellectual disinterestedness that the veil of ignorance would provide.

            In these two very different books, Keyssar and the New York Times journalist Jesse Wegman struggle with the common problem that Keyssar’s title captures so well: Why Do We Still Have the Electoral College? (the key word here being still). To be honest, Keyssar’s book has a real value for the readers of this symposium that Wegman’s Let the People Pick the President does not. I absolutely do not mean this to disparage Wegman’s book, but only to recognize that one book was conceived as a deeply researched and thorough scholarly examination of the long-running if futile efforts at electoral college reform, the other as a journalist’s snappy introduction to the topic, meant for the general reader and interested citizen. Wegman’s book is replete with short sentences, brief paragraphs, and bursts of rhetorical questions and bullet points to speed his story along. Even when he identifies analytical points that merit fuller treatment, his narrative does not alter. Keyssar, by contrast, responds to the historian’s responsibility to tell the complete story, even when that involves reiterating arguments that reformers and their opponents have been making for two centuries and more. As he observes near the end of the book, “The history recounted here has a Sisyphean air”—an image that had occurred to me well before it finally appeared on page 368. But Sisyphean though it might be, Keyssar’s new book should enjoy the same status as his Pulitzer-finalist work, The Right to Vote (2000), which appeared just in time to appear as a visual prop over James Baker’s shoulder in his first Meet the Press appearance after the election. Keyssar’s two books are now the definitive historical treatments of their respective subjects (which is a surprising destiny for someone who began his career as a labor historian).

            Despite the asymmetry between the two books, two concerns unite them that deserve critical treatment. One involves their discussion of the National Popular Vote Interstate Compact (NPVIC), which is a specific application of the more general concept of a National Popular Vote (NPV) replacing the constitutional electoral vote. Under its terms, a group of states casting 270 electoral votes—the simple majority required to elect a president—would bind their electors to cast their ballots for the national popular vote winner, thereby avoiding the disparity that occurred most recently in 2000 and 2016. This is the reform that many opponents of the Electoral College now prefer; it is also, for reasons I will shortly explain, a fatally flawed alternative. The other relates to the common defense of the Electoral College that its proponents routinely summon, which rests upon the idea that our state-based system of presidential election is essential to the preservation of the federal system. The creation of a truly national election in which each citizen’s vote would have the same value wherever it was cast, this argument holds, would somehow sap the vitality of American federalism. Accepting this shift toward a plebiscitary democracy, it is further argued, will undermine the federal constitutional republic the founders and framers established.

Lest one disparage this position too quickly, it is worth noting that Ned Foley, in his new book Presidential Elections and Majority Rule, grounds his proposed reform in a Jeffersonian ideal holding that the winning coalition of presidential electors should be compiled from states whose choices require a majoritarian rather than a mere plurality-based victory. In Foley’s view, the Jeffersonian goal underlying the Twelfth Amendment of 1804 was not merely to cure the mischief arising from the fact that electors were obligated to cast two “undifferentiated” votes for president—the great misstep that led to the Burr-Jefferson tie of 1800 and to Hamilton’s several attempts to throw votes away from John Adams. The “Jeffersonian Electoral College” was also designed, Foley argues, to produce a “federal conception of a compound majority-of-majorities.” Foley’s key objective is to institute electoral procedures that will lead every state to produce an identifiable majority for one candidate. Ranked choice voting is his preferred option, but he considers several other schemes as well. The one method he rejects is the default condition that has dominated the presidential electoral system since the 1830s: winner-take-all elections that depend on simple plurality outcomes. Once this system takes hold, it forms a true equilibrium from which only oddball states (Maine and Nebraska) will depart.

            In his Sisyphean project, Keyssar carefully analyses all of the attempted efforts to reform the Electoral College. There were more of these episodes than most scholars would remember, nor were they solely concerned with undoing the equilibrium of the general ticket (also known as the unit) system. Complaints took many forms: against the superfluity of electors who lacked any deliberative functions; against the effective nullification (or “wasting”) of minority votes through winner-take-all rules; against the prospect of a contingent election in the House of Representatives, as first dramatized in 1824, which was arguably the one case that best exemplified the framers’ expectations. Keyssar patiently reviews the numerous occasions when proposals for district elections or the proportional division of a state’s electors dominated the reform agenda, and examines the arguments made on both sides, along with the other permutations and combinations of electoral reforms they generated.

            Among the many interpretive insights Keyssar gleans, several stand out for their explanatory significance. First, in defiance of the reigning (or even raining if not pouring) conventional wisdom, the main political obstacle to electoral reform has not come from the smallest states. It has sprung instead from the dominant fears of white political leaders in the South, ardent segregationists and white supremacists who wanted to minimize the impact of black voting and political influence. So long as the South remained a one-party region and the black vote was effectively suppressed, the principled incentive to use either district-based or proportional schemes in other states was diminished. As Keyssar observes of the failure of the proportionalist Lodge-Gossett reform of 1950 (led by the liberal Republican senator Henry Cabot Lodge of Massachusetts and the Texas segregationist representative Ed Lee Gossett): “an institutional reform that, in itself, had long been regarded as democratic, might well have anti-democratic consequences in a nation containing a large region that lacked universal suffrage” (164).

Similar considerations came into play in 1969-70, when a movement led by Senator Birch Bayh and Representative Emmanuel Cellar came the closest to replacing the Electoral College with the NPV. Keyssar’s discussion of this episode is arguably the single most enlightening section in his book. Responding to the democratic zeitgeist of the 1950s and 1960s, when one person, one vote became a dominant norm of American politics, and when the Voting Rights Act of 1965 promised a radical transformation of Southern politics, the rising support for the NPV reached nearly 80% in public opinion polls. Moreover, the Dixiecrat movement of 1948 and the segregationist candidacy of George Wallace twenty years later opened the possibility that a non-decision by the Electoral College would throw the choice into the House, a prospect that leaders of both parties equally dreaded. After a characteristically complicated debate, the NPV reform sailed through the House of Representatives, 338-70, on September 18, 1969. But a variety of delays, some tied to the controversies over Richard Nixon’s labored attempts to replace Justice Abe Fortas, delayed consideration in the Senate, and in the end, Bayh and his allies failed to secure cloture against a filibuster led by segregationist Democrats and small-state Republican conservatives. “Although the filibuster against electoral reform would not have succeeded without the votes and voices of conservative Republicans,” Keyssar concludes, “its animating energy and tactical sharpness came from the South, from men with abundant experience utilizing the rules of the Senate to thwart the will of majorities” (261).

Thus ended the last best hope to rid our polity of this wretched institution. Other efforts have nonetheless followed, which Keyssar devotes two further chapters to describing. The most important of these is the NPVIC, and the starting point for its allure is the belief that an Article V amendment reforming or replacing the Electoral College is politically unattainable. That was exactly the response that Jimmy Carter personally directed to me when I made the case for Electoral College reform at the opening session of the National Commission on Federal Electoral Reform in 2001that he co-chaired with Gerald Ford. (Keyssar, Larry Sabato, and I appeared on the same panel.) After telling the former president that my father had been one of his delegates at the 1980 Democratic convention, Carter generously introduced me as “already a very good friend,” but his enthusiasm did not extend to my remarks. Talking about the Electoral College would be a “waste of time,” the former president responded. “I would predict that 200 years from now, we will still have the Electoral College.”

Jesse Wegman makes the NPVIC his favorite cure for our electoral morass. Keyssar gives the subject a more tempered treatment, while hopefully noting that a proposal that is generally viewed as a Democratic ploy is starting to get a bare modicum of interest from Republicans. Neither writer deals adequately, however, with what I regard as the gravest and indeed fatal flaw in the whole NPVIC scheme, to-wit, its relationship to the Compact Clause of Article I, Section 10 of the Constitution. Go to the 774-page Every Vote Equal treatise of National Popular Vote Inc., the 501(c)(4) nonprofit sponsoring this initiative, and try to find an adequate and coherent explanation as to how and why this Rube Goldberg device (as Keyssar correctly labels it) would evade congressional scrutiny under the Compact Clause. You won’t. There you will find pages and pages explaining how an interstate compact is equivalent to a contract, also subject to the obligations of Article I, Section 10, and lots of references to past compacts between and among the states and the circumstances under which they have escaped congressional approval or received judicial approval. The only defense is that the state legislatures have plenary authority over the appointment of electors. But because the efficacy of the whole scheme requires legally binding interstate cooperation, that line of argument does not reach the real point of contestation.

What you will not find, therefore, because it does not exist, is a credible basis for explaining how a contrived mechanism to elect the single most important official in our entire edifice of constitutional governance can be implemented without securing the consent of Congress under the Compact Clause. By their very essence, past examples of compacts on lesser issues of a wholly non-constitutional nature that were implemented without congressional approval would hardly create a binding precedent here. De rerum natura constitutionalis, the issue of presidential election is sui generis. And once congressional critics of the NPVIC invoke the Compact Clause, as they inevitably would, only a short rhetorical hop, political skip, and constitutional jump would quickly bring us back to Article V, with its daunting two-thirds and three-quarters fractions to solve for. Equally important, the use of a Rube Goldberg device that would be subject to lord knows how much litigation would hardly secure the political legitimacy that would be necessary to secure so momentous a change. In this delicate realm, the fact that Akhil and Vik Amar, ingenious constitutionalists that they are, have come up with contrivances of their own to work this out does nothing to allay my innate Madisonian anxieties. As Madison wisely observed in Federalist 49 (giving me the title of my next book), “These experiments are of too ticklish a nature to be unnecessarily multiplied.”

Barring a collapse of the constitutional system—a gloomy prospect we now need to take seriously, even if Sandy Levinson, that constitutional provocateur and gadfly, would have a lot of fun with it—the only satisfactory solution to the Electoral College system will thus require Article V amendment. There is no other way. The challenge for us is not to wallow in a Carterian malaise about its impossibility, but to strategize how it could take place. One needs to construct and pursue a focused public debate that would emphasize the central concerns on which the entire debate over the Electoral College rests. The most important objective, I sincerely believe, would be to rally public opinion to understand two critical points.

The first is that an Article V NPV must emphasize the conception of individual civic equality that is fundamental to modern American political thinking. As Keyssar notes, the commitment to one person, one vote that came out of the reapportionment revolution of the early 1960s was essential to the support for Electoral College reform that came so close to victory in 1969-70. It should draw renewed support from the active campaign of voter suppression that has followed, logically and deliberately, from the legally disastrous and politically malevolent holding in Shelby County v. Holder (2014). But a new opportunity may now exist to link the inequalities of voting weight driven by the “senatorial bump” with the other mechanisms that have fed voter suppression, which is now a governing animus of the Republican party. An individual vote should have the same weight wherever it is cast, and the affirmation of that principle in the light of our contemporary concern with repeated efforts to make voting more, not less difficult, should have added resonance in the body politic. Ensuring that every citizen has the right to cast a meaningful, unwasted vote for president every four years would offer a powerful endorsement of the sovereign importance of the suffrage.

But there is a second and, in my view, more substantive reason to link the principle of individual voter equality with the structure of the presidential election system. The reigning fiction to which proponents of the Electoral College recur is that our state-based mode of presidential election is integrally tied to the strength of the federal system more generally. There is no doubt that this system is conducted in a federal way, in the sense, for example, in which Madison discussed the mixed federal and national properties of the new Constitution in Federalist 39. But the fact that the presidential election system has this federal character does not make it essential to the existence of federalism per se. How that system operates is not a function of the presidential election system. It depends far more profoundly on the messy division of governing responsibilities among the nation, states, and even local communities, and politically, on the territorial basis of congressional representation, in both houses.

Nor do we, as citizens, vote on the basis of the interests of our states as such. Wegman glimpses this truth but mentions it only en passant. “Average citizens [he really means, all citizens] don’t cast their presidential ballots (or even their Senate ballots) based on what state they live in; they vote based on their party preference” (94). But here “party preference” works as a mere signifier for the broader array of opinions, passions, and interests (to crib Federalist 10 again) that determine our political preferences. The interests of states as such are not distinguishable from the aggregated preferences of their populations. A voter’s preferences might well shift as she, he, or the singular they moves from one community or state to another, as local circumstances alter daily concerns. But even those concerns have nothing to do with statehood per se. I don’t worry about earthquakes because I live in the state of California; I worry about them because the San Andreas fault runs a few damn miles away from my Stanford house.

I wish Wegman would have pursued this point at greater length, because it confronts the central confusion that falsifies the whole federalized conception of presidential elections. In terms of our actual votes, states are just the coincidental sites where we happen to live, not the sources of our political sentiments. Battleground states are geographic accidents that represent the shifting demographic and social composition of their populations. The real political geography of the United States has nothing to do with statehood. It instead involves all the other kinds of maps that have flourished in recent years and especially since 2016, whether they identify the most and least productive areas of the economy, or the relative popularity of This American Life or Duck Dynasty, or the respective concentrations of college vs. high school educated populations. These are the variables that drive our presidential preferences, and each and all of us possess some share of them in similar ways. The map of American federalism only describes their accidental distribution across the landscape, “from the redwood forest, to the Gulf Stream waters.”

In the final chapter of his book. “Imagining a National Popular Vote,” Wegman asks different political operators what campaigns would look like should the NPV be adopted. In many ways I found this the most interesting if necessarily speculative section of his book. (In my seniority, my personal Philosophy of History reads: Predict nothing. That’s the job of social scientists.) I would add one hypothesis to Wegman’s musings. In any competitive presidential election, where one vote will count the same everywhere, campaigns will develop techniques to harvest their supporters, wherever they vote. And once you do the simple arithmetic and show that, no, one cannot win an election just in New York City, Los Angeles, the Bay Area, and greater Cook County (my native soil), voters throughout the country will confidently know that each of their votes really does matter. That might not be a bad outcome in these parlous times.

Jack Rakove is the William Robertson Coe Professor of History and American Studies and Professor of Political Science and (by courtesy) Law Emeritus at Stanford University. You can reach him by e-mail at rakove at

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