The electoral college is an outmoded relic of slavery that should be removed from the constitution, not modestly revised, and certainly not politically activated. The civics explanation for the college — that it provided a stopgap to prevent popular passions from running amok and that it helped to ensure that small states would have a voice in national governance — are but part of the story. Another important purpose that the college was designed to fulfill was to ensure that slave states would maintain their disproportionate political weight related to their voting bases in national elections. Because the number of electoral votes equaled Representatives plus Senators, the college silently incorporated and relied upon the 3/5 clause to tilt national representation toward states that ballooned their numbers through the partial counting of persons deemed property for other legal purposes. It is inherently undemocratic and wired to maintain the rule of an oppressive elite, and wishful thinking can’t change this reality.
Activating the electors politically now would unmoor them from the understanding that has developed through practice that they are merely brokers of the states’ legislatively determined wills. While some states have made this explicit after the election of 2000, most have simply relied on the understanding that the electors will follow their state’s chosen practice for casting their votes. Of course, the mere fact of longstanding practice is a weak argument for not changing in a critical moment, but the electors whose activation is now sought were not chosen with this eventuality in mind. In fact, their selection as electors was almost exclusively through a political process of appointment dependent on partisan interests and payoffs.
Quite the far cry from the Platonic guardians of the republic envisioned in the civics version of the electoral college! As Garrett Epps has so trenchantly observed, “The electors never meet, they don’t debate, they vote only once, and they disappear. To me, that’s not a deliberative body; that’s a protection for states that choose to disfranchise their people.” Epps illustrates well why politicizing the electoral college further endangers the system — once this genie is released, it will not readily return to the bottle, and the environment the genie will inhabit is a post-Citizens United world, where electors will be subject to intense lobbying, and the period between Election Day and the electoral college’s vote will become merely another phase of the election. Am I being alarmist or sensational? If you think so, try to recall how frequently people worried about election litigation prior to the election of 2000.
Many have nonetheless embraced the argument by Larry Lessig and others that the electors should recognize that the college violates equal protection commitments and cast their votes accordingly, or that the courts should intervene to press a different distribution of electoral votes because equal protection commands it. Scott Lemieux has laid out a strong critique of this position, noting that in practical terms it would strengthen Republican political power. While I endorse Scott’s concerns, I am also worried about electoral legitimacy.
The most realistic scenario for the electoral college’s meeting is that a few electors will defect, but Trump will secure the necessary votes to become the President elect. If that does not happen, though, what is the next most likely outcome? The electors who have declared intentions to defect have largely announced that they will support a Republican alternative to Trump, perhaps John Kasich, though Kasich has declared himself to be uninterested in the presidency under these circumstances. If the faithless electors, then, were to prevail, the outcome of the election would be, if anything, even less democratic, with a substantial number of electors pledged to vote for a fairly liberal candidate instead casting their votes for a highly conservative one.
But regardless, some have argued that the situation is extraordinary and dire enough to warrant an unprecedented response. If the design of the electoral college will permit it to function as a failsafe mechanism, to forego this function would be foolish in light of the risks that a Trump presidency poses to American democracy. It is a close call, I will say, and I think there’s a reasonable argument to be made in favor of rolling the dice. I’m pretty persuaded, though, that 1) the political will would not be there to engineer meaningful reform if the short-term crisis can be averted, 2) the long-term danger will come right around and bite us very quickly in the next presidential electoral cycle, and 3) as I shall explain below, Mark Graber is right about constitutional evil.
The election of 2000 is an instructive point on the need to create reform. Indeed, after Bush was declared the election’s winner, many patriots on both sides of the aisle troubled by the implications of the bitter contest came together to develop new legislation to modernize and improve voting systems. The Help America Vote Act, however, focused on technology and superficial fixes to a fundamentally flawed system, and did not implement significant federal oversight to ensure consistently well run elections in the states. Further, in light of the military response to 9/11, concerns about voting largely fell by the wayside, overshadowed by more pressing public attention to terrorism and war. If the electoral college can be used as a stopgap or failsafe, will the political will exist to look at it critically and consider its negative implications for American democracy? Given the lack of concern about it before the election, when polls confidently predicted an electoral college victory ranging from decisive to dominant for Clinton, I suspect that the appetite for critical consideration will diminish significantly if a Trump presidency is averted through its use. And, as noted above, an activated electoral college will not only be active on behalf of Democratic presidential candidates, or against candidates like Trump.
This brings me to the problem of legitimacy and worst case scenarios. In his book on Dred Scott, Mark Graber notes that constitutions frequently institutionalize evil or immoral bargains to avert the greater moral wrongs that could result from a failure to constitute a nation or that nation’s collapse. At the end, he proposes a fascinating thought experiment: in the election of 1860, would we consider casting a vote for forgotten candidate John Bell, a racist and pro-slavery nominee who would have endorsed constitutional peace over constitutional justice? A vote for Bell, in Graber’s words, was “a vote for a racist candidate with no commitment to bringing about the ultimate extinction of slavery, but also a vote against risking foreign or domestic war,” a war that, in 1860, did not have the known outcome that the Civil War produced (Graber 2006).
An all-out civil war that kills more than a half million Americans is an unlikely worst case scenario, but how much damage to our institutions is it worth doing to prevent President Trump? Furthermore, if Trump were to be rejected, the only clearly legitimate alternative candidate who would possibly be acceptable to the Republican Party is Michael Pence. How much risk of institutional destruction is worth assuming to usher in a moderately legitimate Pence administration? I am not arguing that Trump voters deserve a hecklers’ veto over a robust and contested democratic process by virtue (vice?) of their undemocratic threats to reject any outcome other than President Trump, but I do believe there’s something dangerous in this moment of promoting an elite-driven solution to a problem generated in significant part by a toxic populist brew.
If treasonous crimes have been committed against the United States, the most legitimate response is through investigation and law enforcement. The electors are not equipped to do that work in a comprehensive and trustworthy fashion, nor would it be easy for them to present a rejection of Trump on this basis as a legitimate result. I also caution us to remember that the last set of claims about extraordinary times and exceptional circumstances led us down the road that ended at Abu Ghraib and Guantanamo Bay. Maybe invoking the rule of law seems like a weak cop out in response to a threat, possibly externally driven, to our constitutional democracy, but I still maintain that we abandon it or bend it to our own peril.
All of this, however, overlooks a much simpler and more compelling equal protection issue. Within individual states, voters face drastically different conditions in their efforts to exercise a fundamental right. A preliminary report by the Brennan Center indicates major problems for many voters, including long lines, malfunctioning equipment, poorly drafted, improperly administered, and discriminatory voter ID laws, and inadequate polling facilities. In the same states, other voters had completely unproblematic experiences, enabling them to vote with only minimal inconvenience.
We should reject these massive inequalities — which have a partisan tinge in many states — as undemocratic and unconstitutional. Voting, almost everyone acknowledges, is a fundamental right. It is one of the few fundamental rights which depends entirely upon the state for its implementation and exercise. No one can vote other than through the system the state sets up and administers. Why do we accept a system with such drastic inequalities as meeting the most minimal threshold of equal protection, much less that associated with the exercise of a fundamental right?
We know this. We have known that this was a problem for years. We, collectively, as a nation broke the system. But those who should have been most concerned have let their outrage wane in the wake of electoral victories. We ignored and minimized and dismissed the very serious issues with our supposedly democratic electoral processes because the problems weren’t really affecting the powerful and activated partisans. If Hillary Clinton had won the 320 or so electoral votes that many liberals predicted, we would not be having this conversation at all. We have no business now begging for an electoral college deus ex machina to ride to the rescue at the risk of seriously damaging what remains of our institutional edifices. Instead, we need to look seriously at the system we’ve allowed to persist, roll up our sleeves, and get down to the work of bringing our practices and the constitution in line with a more egalitarian version of representative democracy.