Sunday, December 18, 2016

Supreme Court Should Invalidate Electoral College

      "The electoral college ought to have been struck from the Constitution or invalidated by the Supreme Court long ago," I argue in an op-ed published in theLos Angeles Times [Dec. 16]. "Donald Trump’s electoral college victory — despite Hillary Clinton’s lead of more than 2.5 million in the popular vote — is only the latest proof that it’s the wrong way to choose a president."
      My original submission was longer and more explicit in setting out the legal grounds and political rationale. Here, for your further consideration. I will have more to say in coming days on fixing the flaws in the United States' imperfect Constitution.
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      The Electoral College is unconstitutional.
      It is unconstitutional because it was born out of a morally offensive political decision aimed at preserving the status of slavery in the South.
      It is unconstitutional because it has never functioned in the supposedly deliberative manner that its authors depicted in selling it to voters during the ratification debates.
      It is unconstitutional because it conflicts with the “one person, one vote” rule that the Supreme Court has applied for the past 50 years to elections for every other elective office in local, state or federal governments.
      It is unconstitutional because under current political conditions it does not operate as its defenders claim to incentivize presidential candidates to campaign in all 50 states, from the biggest to the smallest.
      And it falls to the Supreme Court to rule the system unconstitutional because its defects are safeguarded from a constitutional amendment by the effective veto power of the small states that supposedly benefit from the system.
      Start at the Constitutional Convention in Philadelphia in 1787, where Pennsylvania’s James Wilson proposed direct election of the president only to be shot down by the slave-owning Virginian James Madison. As Yale’s distinguished constitutional law scholar Akhil Amar has recently explained, Madison demurred because Northern states allowed voting more “diffusively” than states in the South.
     The South’s non-voting slaves would have counted for nothing in a popular-vote system. But slaves increased the electoral votes from the South and thus its political clout because the Three-Fifths Clause counted them for apportionment in the House of Representatives.
     The ink was barely dry on the Constitution when the Twelfth Amendment was ratified in 1804 to replace the harebrained provision that the presidential runner-up serve as vice president. Ever since, the major political parties have fielded competing presidential and vice-presidential tickets, and the electors have been relegated to voting according to the popular vote in their respective states.
     The Constitution never uses the phrase “Electoral College,” nor have the electors ever met as a collective body. The Constitution specifies that they cast their ballots in their respective states. But Alexander Hamilton sold the system to voters in Federalist No. 68 on the ground that the president would be chosen by “men [sic] most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation . . . .”
      Today, electors’ names do not even appear on most states’ ballots. The occasional elector who votes differently from the popular vote is not praised not for deliberation but criticized as “faithless.” For better or worse, none of the 157 faithless electors in U.S. history before the 2016 contest, as compiled in a Wikipedia entry, have affected the outcome of a presidential election. The Supreme Court ruled in 1952 that states can punish a faithless elector after the fact but cannot prevent electors from casting their votes as they see fit.
      The Supreme Court ruled in 1964 that states cannot use an unevenly weighted voting system in choosing statewide officeholders. The 8-1 ruling in Wesberry v. Sanders struck down Georgia’s county unit system, which gave rural voters significantly greater weight than voters in urban counties.
      Justice William O. Douglas acknowledged, with a critical footnote, the constitutional basis for the Electoral College, but he concluded that states had to give all voters equal weight. “The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote,” he wrote.
      If states are foreclosed from giving rural voters more weight than urban voters in choosing governors or senators, the federal government should be equally foreclosed from giving voters in red-state Wyoming or blue-state Rhode Island more weight in choosing a president than those in blue-state California or red-state Texas. The court held in the District of Columbia school desegregation case in 1954 that the Fifth Amendment, ratified three years after Article II with its provisions for electing the president,  includes an equal protection component applicable to the federal government.
      Supporters of the Electoral College fall back on a political defense. In a pure popular-vote system, they warn that candidates would pay no attention to the least populous states. Nowadays, however, with most states well defined as either Democratic blue or Republican red, candidates devote most of their time and resources to only a dozen or so “battleground states.” Today, every Republican voter in California or Rhode Island counts for nothing, just like every Democratic voter in Texas or Wyoming.
      Supporters also argue, in effect, that the system works, almost all the time. The popular-vote winner has been denied the presidency only five times in the 54 elections since ratification of the Twelfth Amendment, including most recently Al Gore in 2000 and Hillary Clinton in 2016. A 9 percent failure rate is shy of an A-plus grade. And of the popular-vote-loser presidents in the 19th century, none is viewed as having been particularly successful in office: John Quincy Adams in 1824, Rutherford Hayes in 1876, and Benjamin Harrison in 1888.
      It would be quite a stretch for the Supreme Court to rule the Electoral College unconstitutional. But it was a stretch for the court to rule legislative and congressional malapportionment unconstitutional in the 1960s. The country is better off for the court’s decision to wade into what Justice Felix Frankfurter had previously called “the political thicket.”
      Malapportioned legislatures could not be expected to remedy the defect, so the Supreme Court stepped in when petitioned by disadvantaged voters from, among others, my home state of Tennessee. As a remedy, the court did not void elections. It only required legislatures to redraw districts and to hold subsequent elections according to the redrawn districts.
     If petitioned by undercounted voters in populous states, the court similarly need not nullify the results of a presidential election to get rid of the Electoral College. It need only require that a popular-vote system be established by the time of the next. Voters of underweighted states could file suit now and satisfy standing under the doctrine that their claimed injury is “capable of repetition but evading review.”
      The 15 states with five or fewer electoral votes — roughly half of them red and half blue — would be enough to prevent the three-fourths majority needed to adopt a constitutional amendment for a popular-vote system. A dozen or so states have signed on to the National Popular Vote Compact as a way to circumvent the Electoral College by pledging to cast their electoral votes for the popular-vote winner if joined by states with an electoral majority. Under the Supreme Court’s 1952 decision, however, the compact would be unenforceable.
      The U.S. Constitution has been a model for emerging democracies, but in more than 200 years no country has followed the Framers’ model for choosing its chief executive. The Constitution envisioned a system of self-government and, over time, its letter and spirit have been interpreted as embodying political equality as part of that system.
      The court has recognized in other contexts that the meaning of the Constitution can change with changing times. The Framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence v. Texas (2003). “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”


  1. Why should heavily populated States pick the Pres? Better idea, let's disolve the USA and let those who want no borders, forced multiculturalism, gun grabbing and their jobs shipped to China have 25 States and what they what. I have no, nor do I want a future with these people anyway. Good bye to them and good riddance to them. Let's see who creates a superior living space

  2. The comment is a bit amusing that is likely serious but comes off as a parody of an Internet comment.

    Anyway, the op-ed references slavery, which was a factor, but only one. The "deliberating" electors also isn't a thing. But, the breakdown of electoral votes still matches that of Congress, so is part of a whole there.

    The argument in the op-ed would to me be logically applied to the Senate too. But, when the EPC (or more so the implicit EPC of the 5th Amendment) is used to strike down explicit constitutional institutions, it is carrying a lot of weight. This more so if done by court action.

    Realistically and probably even in theory, I don't think that is very sound. A constitutional amendment would be more appropriate.

  3. The ratified Congressional Apportionment Amendment from the Bill of Rights would fix everything. New book by LaVergne shows why it's ratified and experts agree. for more info.