Can Anything Short Of Outright Repeal Cure The Impecilities Of The Electoral College?

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).

All three of the books have as one of their dominant motifs the sheer difficulty, if not practical impossibility, of amending the Constitution.  Wegman and Foley, in particular, structure their affirmative proposals around this reality.  If constitutional change is impossible, then the next best thing is to support ameliorative proposals that would not require climbing Mount Everest.  It is illuminating, though, that Wegman’s strongly-argued proposal is eviscerated by Foley, even as Foley’s retains the possibility both of electoral college winners who in fact come in second in the overall popular vote, as well as retaining the possibility of the “contingent election.”

 So let’s begin with Wegman, who strongly endorses the so-called “national popular vote interstate compact.”  The idea is (perhaps deceptively) simple:  States with a total of 270 electoral votes simply agree, in a “compact” with one another, to instruct those chosen to be electors to vote for whoever comes in first in the national popular vote.  The Constitution clearly assigns to state legislatures the nearly plenary power to “appoint” electors; many state legislatures at the outset of the United States simply appointed the electors themselves without the bother of requiring an election at all, though this hasn’t been done since Colorado did in it 1876.  The Supreme Court’s July decision presumably removes any doubt about the constitutionality of such “instructed” electors.  The adoption of the proposal would, as Wegman ably argues, eliminate the possibility that the “winner” might in fact collect fewer votes than the “loser.”  So what’s the problem?  Why, in particular, does Foley object so strongly (as does Rakove)?

 The answer, for both, is quite lawyerly.  One might well believe that such a “compact” could become truly effective only with congressional assent, and there is good reason to believe that there would be enough votes in the Senate, the traditional graveyard of progressive legislation, to withhold consent.  In any event, a non-assented-to compact is guaranteed to generate much litigation, and one can easily imagine that Supreme Court would have little hesitation in striking it down.  A second problem is making sure that a state doesn’t in fact renege on its bargain.  A Congressionally-validated compact might allow judicial enforcement against a state with buyer’s remorse.  But in its absence, why in the world would California electors choose to vote for, say, Donald J. Trump in the unlikely event that he in fact beat out Joe Biden by a single vote nationwide?  Or, concomitantly, if Texas remains predictably red, why would one expect Texas electors happily to vote for Biden against the wishes of a majority of their fellow Texas Republicans?  Would the “compact” have sufficient teeth to force states to keep to their bargain?

 Those are good questions, though I confess that I’m less perturbed by the legal critiques.  At the present time, nowhere near the number of states adding up to the magic number of 270 have agreed to the compact.  If we got to that number, it would, presumably, reflect the widespread public disgust over the election of “minority” winners, as in 2000 and 2016 (and, possibly, in 2020).  Perhaps a state would still be tempted to renege.  But I do wonder if five politically sagacious lawyers on the Supreme Court would invalidate a compact that had clear public approval, and where congressional disapproval is so easily explicable on the grounds of partisan disinclination to disrupt the status quo, whatever the consequences for the American polity at large (a question of little concern for committed partisans). 

 Instead, my opposition to Wegman’s proposal is precisely that it does nothing to solve the fact that many American presidents have been elected with less than demonstrable majority support, even if they did come in first.  My own favorite examples, in the modern era, are Richard Nixon in 1968 and Bill Clinton in 1992, each of whom procured 43% of the popular vote.  I think that Wegman is just too blasé about such realities.  “Americans seem to be fine with non-majority-winners,” whether nationally or at the state level.  (Rick Perry, for example, won re-election as Texas’s governor in 2006 with roughly 37% of the vote in a four-candidate race.)  I don’t find this persuasive, especially because there is such an “easy” solution.  That is, one can easily arrange either for runoffs between the top two candidates in a multi-candidate race or adopt the so-called “instant runoff,” the Alternative Transferrable Vote with rank-order voting, by which the winner can plausibly claim demonstrable majority approval.  This is the system in France; if one doesn’t like looking abroad, one need only to look at Georgia. 

 Consider in this context the 1860 election, where civil war was triggered in large part because the 39.8% of the popular vote received by Abraham Lincoln turned out to be sufficient to receive an electoral vote majority entirely from the Northeast and Midwest.  There has always been something strange about the argument that the Southern preference for war represented the triumph of “bullets” over “ballots” given the degree to which Lincoln was demonstrably not the choice of the majority of Americans.  Wegman brushes off this example.  Foley, on the other hand, offers an interesting defense of Lincoln’s election, pointing out that Lincoln gained his majority by getting the majority of votes in enough states to generate the winning number.  Foley’s (justified) antagonism is toward what he labels the “Jacksonian” system, contrary to the “Jeffersonian” one that he himself valorizes.  The former allows the  plurality winner in a given state, who by definition has not demonstrated majority support, to win all of its votes. This is the system adopted in all of the states save Maine and Nebraska.  And often enough, political scientists or historians can demonstrate that the plurality winner would in fact have lost in a runoff, as was certainly the case in both New Hampshire and Florida in 2000, for example.  This leads to the phenomenon of the “wrong winner,” i.e., a winning candidate who prevails only because of this fluke in the voting system that, Foley argues, violates the “Jeffersonian” assumptions underlying the understudied Twelfth Amendment that attempted to alleviate the fiasco of 1800 by forcing electors to vote separately for presidents and vice presidents. 

 That split is what almost everyone who thinks about the 12^th amendment at all thinks about; Foley’s distinct contribution is to argue that in addition there was a strongly majoritarian assumption, even though it was not predicated on a single national vote total.  Thus “Jeffersonians” had no objection to candidates winning with less than a majority of the total vote or even, perchance, with a smaller vote total than the losing candidate at least so long as the winner got a majority of the vote in enough individual states to provide a majority of electoral votes.  From that perspective, Lincoln was a “Jeffersonian” winner, albeit with less than 40% of the vote and even if one believes that Lincoln would in fact have lost the race had there been a runoff between himself and Stephan A. Douglas, who came in second.  Although I find Foley’s argument extremely interesting, I am ultimately not convinced that the “Jeffersonian winner” is sufficiently more attractive than the “Jacksonian” one to endorse his overall plea. 

Indeed, it is not clear that Lincoln himself would necessarily agree with Foley’s defense of his automatic legitimacy as a “Jeffersonian winner.”  Thus, in his “House Divided” Speech of 1858, while suggesting there was in effect a conspiracy among James Buchanan, Roger Taney, Franklin Pierce, and Stephen A. Douglas to nationalize slavery, Lincoln takes note of the fact that Buchanan’s election in 1856 “fell short of a clear popular majority by nearly four hundred thousand votes, and so, perhaps, was not overwhelmingly reliable and satisfactory.”  Foley, however, declares Buchanan to be a “Jeffersonian winner” in that he indeed received a majority of the votes in the states that gave him the electoral vote majority that he needed.  1856 had seen three serious candidates for the presidency.  Buchanan undeniably came in first, with 45.5% of the total popular vote, as against John Fremont, the first Republican candidate for the presidency, with 33.1% and former President Millard Fillmore, running as a Know Nothing, who garnered 21.5% of the vote.  It’s easy enough to predict that a ranked-choice system, which would be a great improvement on the way we now conduct elections, would have given Buchanan a clear majority inasmuch as it’s implausible that the Fillmore voters would have had Lincoln as their second choice.  Still, it’s telling that Lincoln thought it useful in effect to question Buchanan’s full legitimacy insofar as he had the demonstrable support of “only” 45.5% of the electorate, a full 5% more than Lincoln would get in 1860 or, for that matter, almost three percent more than either Richard Nixon or Bill Clinton received in 1968 or 1992. 

My skepticism about Lincoln’s (or other merely plurality winners’) democratic bona fides in no way represents an endorsement of the actual reasons for secession in 1861, which had everything to do with maintaining the institution of chattel slavery and ownership by white supremacists of enslaved Blacks.  But Foley himself notes that some Federalists in 1803 apparently threatened secession (a full decade before the Hartford Convention during the War of 1812) because of their unhappiness over Jefferson’s victory, procured in part because of the morally indefensible, though politically “necessary,” bonus given slave states through the 3/5 Clause.  As Mark Graber has elaborated in some of his own scholarship, the claim that the United States was really “one people” was dubious from the start, and much of the original Constitution can be understood only in a more Calhounian perspective as trying to achieve some way of allowing the distinctly different regions of the United States to live together.  One way, of course, was by allowing each of the regions some kind of veto power with regard to legislation viewed as affecting their vital interests.  Whatever one thinks of that premise, it is clear that Lincoln represented what might termed a more Jacobin version of majority rule, at least from the perspective of the slave slates who had been uncertain about the initial Union itself unless they got sufficient guarantees that their interests would be protected.  If one objects to offering even an iota of constittutional credence to white Southern slaveowners, then recall that Abolitionists themselves endorsed “No Union with Slaveholders” and would presumably have happily seceded from the Union that was all-too-willing to accommodate those who claimed to own other human beings as chattels.  Part of what Garrison called the “Covenant with Death and Agreement with Hell” was the three-fifths Clause that guaranteed to slave states excessive power in the House of Representatives and, therefore, in the electoral college that chose presidents and, therefore, in the Supreme Court whose members were nominated by slavery-friendly presidents (save for the Adams father-and-son duo).  The electoral system was rigged, very much in favor of slave interests; what was remarkable about 1860 is that the rigging seemed to be unravelling, and the losers were unwilling to be good sports even if, by stipulation, Lincoln’s victory was “Jeffersonian.”   

Interestingly enough, in all of the debates about constitutional revision at the end of the 1860s, the electoral college apparently got almost no attention.  Perhaps that is because the Republican Party apparently in control was able to gain the presidency quite easily during that decade.  Why disturb an apparently good thing?  But, of course, the election of 1876, for some, threatened the renewal of war as Rutherford B. Hayes gained the White House only because eight Republican election commissioners prevailed over seven Democrats in awarding contested electoral votes in Florida, Louisiana, and South Carolina to Hayes.  This allowed him to gain a one-vote electoral-vote majority over Samuel Tilden, who in fact received more popular votes.  (On the other hand, white marauders in these Southern states had undoubtedly been successful in discouraging many African-American men from voting—women, of course, were still ineligible to vote at all—so that it is foolhardy to believe that Tilden’s majority was necessarily reflective of how a truly free electorate would have voted.)  But 1884 produced what Foley believes to be another “wrong winner,” in Grover Cleveland (who, ironically or not, lost, Foley believes legitimately, to Benjamin Harrison in 1888 even though Harrison received fewer overall popular votes). 

Foley argues in favor of returning to the “Jeffersonian” system, which, he argues, correctly, would require no tampering with the Constitution.  Everest need not be climbed.  All that needs to happen, he plausibly argues, is that even one or two of the larger states return to “Jeffersonianism” and announce that their electoral votes will go in toto to a single candidate if an only if that candidate demonstrates majority support in the given state.  That can be demonstrated, should no one win a majority in the “first” election, through a runoff or recounting the ballots by acknowledging the rank-order choices of the voters.  That would almost surely be preferable to the present system.  But one must still ask why Foley is willing to settle for what is, at best, only half a loaf that still leaves us vulnerable to a national plurality winner (like Lincoln, most notably) and, should there be a “genuine” third-party challenger who earns electoral votes from enough states, the possibility that no one will get a majority of the electoral vote and, therefore, that the dreaded “continent election” will take place in the House of Representatives on a one-state/one-vote basis. 

Some of Foley’s language suggests that he really likes the “Jeffersonian system” of “compound” majorities that pays genuine attention to states as well as to the national electorate.  Perhaps that’s true, though I don’t think he spells out a convincing argument in its behalf.  (Perhaps I’m just too “nationalist,” as against his respect for “federalism” and “states rights,” but I’m not clear this is the case.). What I think what is more centrally operative is his consistent, and altogether justified, tone of despair about doing what is really necessary, which is eliminating the whole damned thing via a constitutional amendment that would also, along the way, address the fatal problem in Wegman’s proposal, i.e., the acceptance of mere plurality winners.  Typical is his comment that an “instant runoff” system would be “desirable, but it would take a constitutional amendment and this is impractical for the foreseeable future.”  That is no doubt correct.  The motto for people like myself, who wish wholesale—or even partial--constitutional reform is suggested by Dante’s inscription over the gates of Hell:  “Abandon all hope ye who enter here.”