Topple the Electoral College

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The United States Supreme Court Building. (Brendan Smialowski / AFP via Getty Images)

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Donald Trump has convinced himself that defending statues of those who fought to preserve human bondage will get him reelected. In a carefully choreographed appearance at Mount Rushmore on the eve of the Fourth of July, the president, who has been complaining for weeks about efforts by anti-racist campaigners to remove statues of Confederate generals and agents of colonialism, fretted, “Our nation is witnessing a merciless campaign to wipe out our history, defame our heroes, erase our values, and indoctrinate our children.”
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As usual, the most historically ignorant president in American history is being cynical. Even the Trump-friendly Wall Street Journal acknowledges this reality, with a headline reading, “Trump Jumps on Preserving Monuments as Winning Campaign Issue: The president’s aides see his defense of statues and monuments as a unifying issue beyond his political base.”

Championing the memory of slavery’s defenders will not win Trump the election in a year when even conservative politicians in Mississippi have accepted that the time has come to strip the Confederate battle emblem off their state flag.

But there is one shameful remnant from the past that could keep Trump in office: the Electoral College, an antidemocratic relic of unconscionable compromises made at America’s founding that should never have been allowed to linger into the 21st century. This “college” has never operated as the quality-assurance mechanism Alexander Hamilton imagined would prevent those with “talents for low intrigue, and the little arts of popularity” from claiming the presidency. Superior contenders have often been rejected by partisan electors. And, with some frequency, the inferior presidents produced by the Electoral College have taken office without a popular mandate.

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If this foul remnant of 18th century oligarchy—and the fears of Southern politicians that free and fair elections might one day undermine the power of slave states—isn’t abolished or, at the very least, constrained, there is every reason to believe the Electoral College will continue upending popular democracy.

That’s what Trump is counting on in 2020.

No serious poll since February has given the president a lead in the race with presumptive Democratic nominee Joe Biden, and the average of national polls gives Biden a 49.6 to 40.9 advantage. Several recent polls show the Democrat opening up a double-digit lead.

Yet Trump could still lose and “win”—as he did four years ago, when 54 percent of Americans cast ballots for someone other than the Republican nominee, and when Democrat Hillary Clinton piled up a 2.9 million-vote advantage over her rival. Trump’s campaign is again targeting battleground states where he narrowly won in 2016 (such as Wisconsin) as well as those where he narrowly lost (such as Minnesota) with an eye toward repeating the scenario that gave their man the presidency.

The US Supreme Court just gave them what could be seen as a bit of a boost by approving crackdowns on electors who go rogue.

With a 9-0 decision, the court upheld so-called “faithless elector” statutes that are used to bind members of the Electoral College to vote for the popular-vote winner in their states. The challenge to those laws had come from Harvard Law School professor Lawrence Lessig and others who argued that nothing in the US Constitution prevents electors from voting their consciences—as many have throughout history and as a handful did in 2016. With their embrace of the “faithless elector” statutes, the justices have undercut prospects that at least a small number of electors might revolt against a circumstance where Trump could lose the national popular vote by a dramatic margin and still be positioned for an Electoral College “win.”

Conservative members of the court highlighted their concern that an effort to secure the presidency for the winner of the national popular vote—or for a compromise choice—might, in the words of Justice Samuel Alito, lead to “a long period of uncertainty about who the next president was going to be.” Justice Brett Kavanaugh signaled that he was applying “the chaos principle of judging, which suggests that if it’s a close call…we shouldn’t facilitate or create chaos.”

But the truth is that there is nothing more chaotic and antidemocratic than a system that allows the loser of the popular vote to become president—as has happened twice in the past 20 years.

Under the Electoral College’s fundamentally flawed calculus, a candidate who is beaten convincingly in the national popular vote can still prevail with narrow wins in a handful of competitive states. In 2016 in Michigan, for example, Trump led Clinton by less than 11,000 votes out of 4.8 million cast, and yet he received all 16 of the state’s electoral votes. And here’s the truly frustrating reality: Different states have different systems for casting, counting, and recounting votes. Without an absolute guarantee of voting rights nationwide and an assurance that votes are cast and counted according to a single national standard, the electoral pathologies of individual states will continue to warp the Electoral College in ways that define the race for the presidency.

Even if the United States had a consistent voting standard across all 50 states, however, that wouldn’t make the Electoral College a fair reflection of America. Defenders of the institution claim that it assures representation for smaller states. But in 2016, five of the 10 smallest states in the union (Vermont, Delaware, New Hampshire, Rhode Island, and Maine, as well as the District of Columbia) delivered more ballots for Clinton than for Trump. The real issue arises from the fact that the current system overrepresents small states in a way that can help popular-vote losers become Electoral College winners. Every state, no matter its population, gets at least three Electoral College votes. In 2016, that meant that an elector from Wyoming spoke for roughly 58,000 Trump voters, while an elector from California spoke for roughly 160,000 Clinton voters.

As America becomes more coastal and cosmopolitan, the imbalance could be even greater in 2020. And 2024. And 2028—unless Americans get serious about reform.

Ideally, the Constitution would be amended to eliminate the Electoral College. But amendments are a heavy lift.

Fortunately, there’s another route to reform: the bipartisan National Popular Vote initiative. Promoted by the group FairVote, it commits the states to respect the will of the people as part of a multistate compact, under which states pledge to assign their electoral votes to the winner of the popular vote nationwide. The compact takes effect only when states with a majority of the nation’s electoral votes—270 or more—have signed on. So far, 16 jurisdictions with 196 electoral votes have agreed to the compact. Pro-compact bills have been submitted in additional states across the country, with both Democratic and Republican support; they should gain traction as the bitter experience of 2016 reminds Americans that something must be done to address the structural absurdity of elections that allow losers to become presidents.

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