Sunday, January 12, 2020

Electoral College: Reform or Chaos?

      The electoral college system for electing the president and vice president of the United States would not be adopted today if put up to a public vote. Public opinion polls dating from the 1960s have registered majority support for amending the Constitution to elect the president by direct popular vote instead of by the indirect electoral system that Hamilton and the other Founders created because they distrusted popular democracy.
      The goal of reforming or replacing the electoral college still lies in the distance. Two reform proposals currently under consideration include the so-called interstate popular vote compact; under this plan, signatory states would agree to cast electoral votes for the nationwide popular vote winner regardless of the vote in their individual states.
      A second proposal, advocated by among others Harvard law professor Lawrence Lessig, would replace the current winner-take-all allocation of electoral votes with a system of awarding electoral votes proportionally based on the popular vote in the state. Under that system, Hillary Clinton would have won five of Wisconsin's 10 electoral votes in 2016; Donald Trump would have won 16 of California's 55 electoral votes on the basis of winning 31 percent of the state's popular vote.
      Lessig argues, in part, that proportional allocation of electoral votes would mean that every vote counts: Republicans in Massachusetts and other blue states; Democrats in Tennessee and other red states. He also argues that the reform would make it less likely that the popular vote loser wins the presidency, as has happened in two of the last five presidential elections: George Bush in 2000, Trump in 2016.,
      One or the other of these changes, maybe even direct popular election, might be hastened by two pending cases at the Supreme Court that threaten to turn the current system into constitutional anarchy. Faithless electors from two states, Colorado and Washington, are hoping the Court will rule that states have no power to penalize them for voting contrary to their pledges to vote according to the popular vote in their states.
      Lessig is representing the faithless electors in the two cases, Chiafalo v. Washington and Colorado Department of State v. Baca: four Democratic electors in Washington, three of whom were fined $1,000 for casting their votes for Republican Colin Powell; and a Democratic elector in Colorado, whose vote for Republican John Kasich was nullified. The justices considered the cases at their conference on Friday [Jan. 10] and, if they grant review, could schedule briefing and oral arguments in time for a decision by the end of the term in late June.
      Lessig was trying to organize a sufficient number of what he called "Hamilton electors" to deny Trump the electoral college majority he appeared to have won on Election Night. Lessign believed that some Republican electors might defect if Democratic electors cast their ballots not for Clinton but for some Republican alternative to Trump. The effort bore some fruit: two Republican electors in Texas voted for Kasich and Powell, reducing Trump's actual count to 304 from his election night total of 306; Clinton's count was reduced to 227 from 232.
      Faithless electors have been part of the system at least since 1800. Federalist electors who refused to vote for John Adams' running mate threw the vice presidency to Adams' political rival, Thomas Jefferson. Through history, at least 179 faithless electors have voted contrary to their stated pledges, but never since with any actual impact on an election.
      Most of the defecting electors were making political statements: for example, the Washington elector who voted for Ronald Reagan in 1976 instead of the actual Republican nominee, President Gerald Ford. Washington passed its law penalizing faithless electors the next year. Other faithless electors cast purely symbolic votes, like the Democratic elector from the District of Columbia who withheld her vote from Al Gore in 2000 to protest what she called the District's "colonial status."
      At the Supreme Court, attorneys for the two states argue that presidential electors can be required to cast their votes as pledged and penalized for not complying with state law. But Lessig argues, in effect, that presidential electors have a constitutional office beyond a state's control.
      In an extreme case, broad discretion for presidential electors could transform the post-Election Night transition period into bare-knuckle political combat until the electors' votes are opened in Washington in January. Imagine, for example, what might have happened if Gore had concentrated in 2000 not on getting a recount in Florida but on shaking loose four Republican electors from Bush's apparent total.
      The 2020 presidential election between Trump and the eventual Democratic nominee could be that close. With the election still a year away, one political handicapper drew a completely plausible Election Night map with electoral votes tied dead-even at 269 apiece. In that hypothetical outcome, one faithless presidential elector could decide who wins the presidency.   
      In their briefs, Colorado and Washington argue that the faithless electors' real aims are to abolish the electoral college system. Lessig, through a self-styled organization Equal Citizens, argues to reform rather than replace. He goes so far as to argue that the Supreme Court could declare the "winner take all" allocation of electoral votes as unconstitutional under the Equal Protection Clause's mandate to treat all votes equally.

No comments:

Post a Comment