The following is the first installment in a TPM series, “Not Safe At Home: Solutions For Our Democratic Crisis.” As America battles the coronavirus, this series takes a look at fixes the next Congress and President should consider to how our democracy works — ideas that predate the coronavirus, and that will resurface after it has passed. 

 

If Democrats win the White House and gain control of the Senate in November, one item on their agenda will surely be reform or abolition of the Electoral College. Leading presidential candidates have endorsed the idea, and resolutions calling for a constitutional amendment have already been introduced in Congress. In addition, the legislatures of 15 Democratic-leaning states (plus D.C.) have signed on the National Popular Vote Interstate Compact (NPVIC), a device that would guarantee that the winner of the popular vote would become president.

The flaws in our presidential election system — the term Electoral College does not appear in the Constitution — are not far to seek. It does not conform to the widely embraced democratic principle of one person, one vote — which is why the loser of the popular election can occupy the White House, as has happened twice in this still-young century. The use of winner-take-all, which is not mandated by the Constitution, but evolved in a complex fashion in the early nineteenth century, deforms election campaigns, concentrating attention on a handful of swing states while turning everyone else into spectators. Then too there is the potential problem of faithless electors (whose ability to be faithless will finally be decided — and likely affirmed — by the Supreme Court this spring). Finally, although we don’t think about it often, our electoral system also includes a contingent process (if no candidate wins a majority of the electoral vote) that gives every state delegation in the House one vote — meaning that the President could be chosen by representatives of a small minority of the population. Even Senate Majority Leader Mitch McConnell (R-KY) thinks that is preposterous — or at least he did in the early 1990s when Democrats controlled the House.

There is, in sum, a lot to fix — and that has been true for a very long time. The history of efforts to reform the presidential electoral system reaches back to the early years of the nineteenth century when Congress passed and the states ratified, the 12th Amendment — which required electors to cast separate ballots for president and vice-president. (The Constitution’s failure to provide for “designation” of the ballots had given rise to an electoral crisis in 1800.) Since that time, nothing has changed in the formal architecture of the system, although more constitutional amendments have been introduced on this subject than on any other. On six occasions, amendment resolutions have been approved by one branch of Congress, and twice they came close to being approved by the other branch as well.

Reform proposals have tended to come in waves, prompted both by electoral malfunctions of one type or another and by increasingly widespread commitments to democratic values. Between 1810 and 1830, presidential election reform was a recurrent item on the agendas of both Congress and state legislatures. The initial goal of reformers was to banish the growing practice of winner-take-all  (then called the “general ticket”) by obliging states to choose electors in district elections. The Senate approved such measures four times, but the House repeatedly fell short of the super-majority (two-thirds) needed for passage. Efforts were also made to couple these district-election proposals (which were thought to disadvantage the large states) with replacement of the contingent process (which benefited small states). But that package never quite came together despite widespread support, including from notables like James Madison and Martin Van Buren.

Interest in reform surged again after the Civil War, as leading Radical Republicans (and some Democrats as well) sought to make the nation’s political institutions more responsive to the populace. Proposals were advanced in Congress calling for the replacement of winner-take-all either by proportional elections (a state’s electoral votes would be cast in proportions matching the distribution of the popular vote) or by holding a national popular vote. But these efforts were sidelined by the electoral crisis of 1876 (the disputed Hayes-Tilden election) and the subsequent congressional focus (or fixation) on figuring out a way to assess and count disputed electoral votes. By the time that issue was solved (1887), the nation had settled into regional and partisan voting patterns that left little room for the reform of presidential elections.

The most recent major attempts to eliminate the Electoral College unfolded in the 1960s and 1970s. Although little remembered, the House of Representatives in 1969 gave overwhelming, bipartisan approval to a constitutional amendment calling for a national popular vote; a year later, however, the measure was blocked in the Senate by a filibuster led by southern Democrats and conservative Republicans. After the close election of 1976 (in which Gerald Ford almost managed an Electoral College victory despite losing the popular vote), the campaign for a national vote was revived, only to be decisively defeated in the Senate in 1979.

For the last four decades, the issue has been frozen, at least in Congress — despite two “wrong winner” elections (which twentieth-century defenders of the Electoral College insisted would never happen). Until recently, Democrats have not been united in support of reform while Republicans — who have come to believe that the Electoral College favors their party — have dug in their heels in defense of the institution. Since the 2000 election, the bleak outlook for constitutional reform has given rise to an alternative path forward: the National Popular Vote Interstate Compact, through which states pledge to cast their electoral votes for the candidate who has won the national popular vote. The compact will take effect only when states with a majority of electoral votes (270) have signed on; at the moment, the tally is 196 . All of the states that have signed on thus far lean blue, although many Republicans — particularly from states that are ignored in election campaigns, such as Utah and Oklahoma — have been supportive.

What this very skeletal chronology makes clear is that: 1) discontent with the Electoral College has a long pedigree (with many illustrious political leaders favoring reform); and 2) that eliminating it, or significantly reforming it, will be a heavy lift. Although the core argument in favor of reform may seem straightforward (the person who wins the most votes should become president), there will be fierce opposition to change — on partisan, ideological and even temperamental grounds.

Faced with this opposition, Democrats who enlist in the fight will have to decide whether to focus on building support for a constitutional amendment or continuing to mobilize behind the NPVIC. In all likelihood, a two-pronged strategy will emerge, and proponents of change will have to settle in for the long haul: a successful campaign for reform will take years and almost certainly will have some unanticipated twists and turns.

 

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Alex Keyssar is the Stirling Professor of History and Social Policy at Harvard’s Kennedy School of Government. His forthcoming book, “Why Do We Still Have the Electoral College?”, will be published (Harvard University Press) later this spring.