Thursday, September 05, 2019

The Electoral College is Tainted, But so is the Rest of the Constitution, and America for that Matter

by Michael C. Dorf

In my latest Verdict column, I discuss a recent 10th Circuit opinion finding that the Electoral College protects so-called faithless electors--who vote in the Electoral College for a candidate other than the one to whom they were pledged--against post-appointment state interference. I describe the opinion as a plausible reading of Article II and the Twelfth Amendment but one that undervalues the democratizing trends of the last two centuries.

I also suggest in the column that while the opinion does not directly implicate National Popular Vote (NPV), an effort to circumvent the Electoral College, the 10th Circuit's combination of wooden formalism and reverence for the anti-democratic design of the Constitution could lead to invalidation or chilling of NPV. That's unfortunate, I argue, because the Electoral College is a suboptimal means of selecting a president. I favor its elimination or, failing that, its circumvention.

A fair number of Democratic politicians, including some presidential candidates, also favor electing the president by a national direct popular vote. They make three sorts of arguments: (1) The EC is less small-d democratic than national direct popular vote; (2) the EC advantages rural over urban and thus white over minority voters; and (3) the EC is a legacy of slavery. I agree with point (1), but (2) and (3) are dubious.

There are many different ways to design how a political system chooses the head of government and/or head of state. In pure parliamentary systems, the people do not vote for the Prime Minister, although in voting for MPs they are typically aware of who the respective party leaders and thus PM candidates are. Pure parliamentary and related systems feature indirect election of the head of government. (Put aside special cases like the recent Tory-only selection of Boris Johnson to replace Theresa May after she resigned.)

Indirect election of the prime minister does not necessarily make a parliamentary system less small-d democratic than a presidential system with direct election of the president. On the contrary, especially if the presidential system has strong separation of powers, the parliamentary system will likely be more small-d democratic than the presidential system, because a parliamentary system can reflect the popular will much more quickly than a presidential system can. Woodrow Wilson's Congressional Government found that our system was generally less effective than the English one; in this context, less efficacy also means less democracy.

Thus, the problem with the EC is not that it does not give us direct election of the president. Direct election of the head of government (and head of state) is not necessary to democracy and may actually be less democratic than certain forms of indirect election.

Nonetheless, I generally agree with argument (1) against the EC, because the EC is a particularly bad form of indirect election. It does not have the democratic virtues of parliamentarianism. And as critics note, it leads to huge distortions in how candidates campaign. As I note in the column, general election candidates focus their attention (and to some extent their policies) on a handful of purple states to the exclusion of deep blue or deep red states.

Arguments of type (2) are weaker. The EC does give small states a modest advantage, because a state's electoral votes get a boost from equal representation in the Senate. But that's also a disadvantage insofar as state laws (everywhere but Maine and Nebraska) giving the statewide winner all of a state's electoral votes incentivize campaigning in larger states.

Meanwhile, small states are roughly evenly divided between blue and red. Counting DC as a state (because it has 3 electoral votes), here are the ten smallest states, along with their presidential lean: Wyoming (R); Vermont (D); DC (D); Alaska (R); North Dakota (R); South Dakota (R); Delaware (D); Rhode Island (D); Montana (R); Maine (D). That's a 5/5 partisan split. Moreover, contrary to the claim that the EC systematically favors rural over urban states, several of those jurisdictions (DC, Delaware, and Rhode Island) are among the most densely populated in the country. It's true that the EC currently gives a modest advantage to the Republicans, but as I discuss in the column, that is not likely to be true over the long run. The EC is undemocratic but it is not systematically unDemocratic.

That brings me to point (3). Last year, Alexandria Ocasio-Cortez (then not yet a member of Congress) tweeted: "It is well past time we eliminate the Electoral College, a shadow of slavery’s power on America today that undermines our nation as a democratic republic." There is a sense in which this is correct: EC apportionment reflects the number of Senate members plus the number of House members; the original Constitution apportioned House members in accordance with the 3/5 Clause, which gave slave states a bonus in the House and thus in the EC; therefore, retention of the EC is a shadow of slavery.

Yet there's another sense in which AOC's argument is wrong. Following the Reconstruction Amendments, there are no slave states and thus there is no slave state bonus. Thus, the one aspect of the EC that associated it with slavery was expressly repealed. That's more than can be said for much of the rest of the Constitution--which is also "a shadow of slavery's power."

The unamendable equal suffrage in the Senate Clause and the Senate itself were partly due to slavery. So was the Second Amendment, which was adopted at least in part to ensure state control over militias to put down slave revolts. One can go further. As Jill Lepore shows quite persuasively in her recent history of the United States, These Truths, the entire American project, including the Constitution, has been drenched in the original sin of slavery. Like the Declaration of Independence, the Constitution reflects the ongoing struggle between the liberal creed and the ugly illiberal reality. In lawyer-speak, AOC's indictment of the Electoral College "proves too much." It indicts the entire Constitution.

What is to be done in response? Assuming it is not currently realistic to try to abandon the Constitution and start anew, perhaps we ought to acknowledge that the Constitution and the American historical tradition more broadly are complicated. They contain and in many respects generated values that many of us gladly hold, but they also contain and generated the counter-currents (such as racism and nativism) that continue to bedevil us.