Credit: Getty Images.
Last week, the U.S. Supreme Court nullified Colorado’s decision to disqualify Donald Trump from the state’s presidential ballot, citing the chaos that could ensue if each of the 50 states could remove candidates for president based on their own standards and procedures. “The ‘patchwork’ that would likely result from state enforcement,” the court reasoned in Trump v. Anderson, “would ‘sever the direct link that the Framers found so critical between the National Government and the people of the United States’ as a whole.”
The justices emphasized the likelihood that “state-by-state resolution of the [disqualification] question” would be inconsistent “with the basic principle that ‘the President ... represent[s] all the voters in the Nation.’”
Although aspects of the court’s reasoning in Trump v. Anderson have been criticized, the concern about individual states arriving at inconsistent and possibly arbitrary decisions about candidates’ eligibility for the presidency, thus confounding the integrity and representativeness of a national election, is quite understandable.
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Which brings us to the Electoral College.
This mechanism, rooted in the Constitution, itself “sever[s] the link ... between the National Government and the people of the United States as a whole,” and strains “the basic principle that ‘the President . . . represents all the voters in the Nation.’”
Under the Electoral College, each state has the number of presidential votes corresponding to the size of its congressional delegation: its two U.S. senators plus its representation in the House of Representatives, which depends on population size. Thus, New York has 28 electoral votes (two senators plus 26 representatives), Texas has 40 electoral votes (two plus 38), Wyoming has three electoral votes (two plus one), and so forth. Nationwide, 538 electoral votes are distributed among the 50 states and Washington, D.C.; a candidate achieving a majority – 270 votes – is elected president.
Under this system, a candidate who wins the most votes nationwide can lose the election. This has occurred twice recently: Al Gore won the popular vote in 2000 but George W. Bush was elected president with a majority of the electoral votes; in 2016 Hillary Clinton won the popular vote but Donald Trump won a majority of the electoral votes.
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This anomaly of the Electoral College triggers concerns similar to those voiced in Trump v. Anderson: how the outcome of a national election can be skewed by voting rules that can undermine the will and representativeness of a national electorate.
How many of us have stayed up late on Election Day agonizing over the voting results in Georgia, or Pennsylvania, or Arizona—elections in states that might hinge on a relative handful of popular votes but which result in the winning candidate being awarded all of the state’s electoral votes?
And how many residents of reliably blue states (like New York, for example) or reliably red states find that they and the issues they care about are all but ignored by presidential candidates who campaign only in the swing states that promise to “really” determine the election’s outcome?
The framers of the Constitution fashioned the Electoral College system in 1787, when communication throughout the country was such that few voters could be expected to be well informed about national issues and candidates for president. Thus electors were chosen in each state who presumably had the knowledge and expertise to make more informed decisions about presidential candidates and cast electoral votes accordingly. Federalism principles — preserving a role for the states in matters of governance — also helped explain why the states were allotted electoral votes, rather than trusting the country’s individual voters.
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But with this consideration came an ugly stain. Preserving a role for the states in the Electoral College system simultaneously preserved the influence of the Constitution’s odious three-fifths clause, by which slaves were to be counted as three-fifths of a person for calculating the population used to determine how many representatives each state would have in the House of Representatives. The slave states benefited greatly in this respect because of their abundant slave population, and this in turn directly resulted in their being awarded more electoral votes.
If a case can be made that the Electoral College system distorts the will of the nation’s voters, as expressed in the popular vote, and if the origin of the Electoral College is traced in part to the benefits derived by the southern states through operation of the three-fifths clause, what can be done to rectify these problems?
The Constitution could be amended to replace the Electoral College with popular voting for the presidency. But it is notoriously difficult to amend the Constitution.
Another solution could be for a sufficient number of states to join the National Popular Vote Interstate Compact, an agreement binding the participating states to assign all of their electoral votes to whichever presidential candidate wins the popular vote in the election, even if that candidate did not receive the most votes in their own state. The compact would take effect when states with a combined total of 270 electoral votes — the magic number to declare victory — joined. New York is one of the 16 states (plus Washington, D.C.) that already have entered into this compact — representing 205 electoral votes.
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The Electoral College is a flawed system for choosing the president of the United States. Its original justifications are outmoded, unpersuasive and tainted by the stain of slavery. The time has come to replace it with a straightforward system that allows the will of the majority to determine who will occupy the nation’s highest office.
James Acker is a distinguished teaching professor emeritus in the University at Albany’s School of Criminal Justice.
Commentary: Making every vote count
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10.03.2024
Credit: Getty Images.
Last week, the U.S. Supreme Court nullified Colorado’s decision to disqualify Donald Trump from the state’s presidential ballot, citing the chaos that could ensue if each of the 50 states could remove candidates for president based on their own standards and procedures. “The ‘patchwork’ that would likely result from state enforcement,” the court reasoned in Trump v. Anderson, “would ‘sever the direct link that the Framers found so critical between the National Government and the people of the United States’ as a whole.”
The justices emphasized the likelihood that “state-by-state resolution of the [disqualification] question” would be inconsistent “with the basic principle that ‘the President ... represent[s] all the voters in the Nation.’”
Although aspects of the court’s reasoning in Trump v. Anderson have been criticized, the concern about individual states arriving at inconsistent and possibly arbitrary decisions about candidates’ eligibility for the presidency, thus confounding the integrity and representativeness of a national election, is quite understandable.
Advertisement
Article continues below this ad
Which brings us to the Electoral College.
This mechanism, rooted in the Constitution, itself “sever[s] the link ... between the National Government and the people of the United States as a whole,” and strains “the basic principle that ‘the President . . . represents all the voters in the Nation.’”
Under the Electoral........
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