Earlier this month, I conversed with Joe Schuman about my recently published book, The Twenty-Eighth Amendment? Beyond Abolishing the Electoral College.  Joe is Editor-in-Chief of Divided We Fall (https://dividedwefall.com/), a non-profit news publication providing bipartisan dialogue to the politically engaged.   This discussion was published on October 28, 2020.

Joe Schuman: Thanks for joining us, Professor Schumaker. In the 21st century, we have seen two Presidents win the electoral college but lose the popular vote. As a result, we have heard increasing demand to abolish the electoral college. Let’s put aside the debate on whether or not we should abolish the electoral college and focus on how abolishing the electoral college would actually be done. What would it take to abolish the electoral college?

Paul Schumaker: My book “The Twenty-Eighth Amendment?” is more about the institutions and procedures that should ideally be adopted to replace the Electoral College than it is about overcoming the barriers to changing the Constitution in practice.  The question of “how?” is a formidable one to answer.  As I discuss in the book, over 700 proposals to abolish the College have been considered by Congress and none has ever passed. Even if Congress passed such a Constitutional Amendment, the obstacles to its passing in three-quarters of the states, as required by Article 5 of the Constitution, are formidable.  In the end, these proposed reforms have been defeated by power politics—by persons using their institutional resources to secure what they think are their own interests, the interests of their party, or the interests of their states.

What my book tries to do is undermine power politics by making the moral case for changing the system.  What I have tried to do throughout my career is to suggest that, at least sometimes, “ethics matter” in politics.  In other words, some issues can be seen as so morally obvious and compelling that a consensus emerges that pricks the moral consciousness of both (power oriented) politicians and (politically apathetic) citizens.  Ending slavery, having progressive taxes, having basic social security, extending civil rights, and ending certain wars are historical examples. Dealing with structural racism seemed to moving along this path this summer.  I make the moral case for moving beyond the Electoral College.

To do that, I first point out the questionable power-based motivations that supporters of the Electoral College hold.  First, I challenge the widespread assumption that the Electoral College serves the interests of our least populated states. Second, I suggest the dubiousness of the widespread assumption that the College protects Republican interests.  In the book, I develop both of these arguments in order to undercut the motivations of those who have long used their power to undermine reforms that would serve democratic ideals.

But the heart of the book is to make a positive moral argument. Rather than basing my argument on complex philosophical analysis (this is a book for the general public!), my argument appeals to norms that are widespread in American culture.  One part of the moral argument is based on the ideal that all voters should be treated as equals. To have voter equality, candidates should have incentives to consider the well-being of all citizens, regardless of their race, gender, place of residence, etc. The second part of the moral argument is that voters need to be community-minded when they vote. They should put aside their own ideology, partisanship, and even policy concerns and cast their votes on the basis of the qualifications, values, and trustworthiness of the candidates and their track record of pursuing the common good on behalf of all people in the nation. Politics works much better when voters set aside the question of who do I want in the presidency because he/she claims to reflect my ideology, my identity, and my policy preferences? Instead they should vote with a different question in mind: which of the candidates do we most trust to do what is good and right when juggling various ideological, partisan, and policy orientations.

Joe: In “The Twenty-Eighth Amendment?” you say that a Constitutional Amendment is unlikely. But you describe two potential factors that could “tip the scale.” One has to do with generational change and the other has to do with a constitutional crisis. Can you explain?

Paul: I believe passage of a constitutional amendment to reform the Electoral College system will require a communitarian democratic movement. Such a movement would resemble the civil rights movement of the 1950-60s but be geared toward the common good of all citizens rather than the equal rights of certain oppressed citizens. We saw elements of this type of movement during the pandemic, economic shutdown, and racial protest this year.  Many younger citizens have long had such moral outlooks, perhaps due to their fear of inheriting uninhabitable environments. Thus, I suspect receptivity to communitarian democracy will increase over time, as younger people join the electorate and acquire positions where they can implement their more communitarian ideals.

A constitutional crisis could speed up the formation and success of a communitarian democratic movement that results in electoral reform.  We have observed that the mere disconnect between the results of a national popular vote and outcome in the Electoral College is insufficient to spark a constitutional crisis.  Both the Bush victory in 2000 and the Trump victory in 2016 did not prompt massive protests against the College.  That is a good thing, because in a democracy people must abide by the rules in play, and the Electoral College provides the most basic of the current rules governing presidential elections.

But there are elements of the Electoral College system that might produce a constitutional crisis.  Despite the decision by the Supreme Court on July 6, 2020 that curbed “rogue” voting by electors in the College, there remain opportunities for electors to dismiss popular votes and engage in “corrupt bargains” that most citizens would view as illegitimate.  If no one won a majority in the Electoral College and a House contingency election were to be needed to select a president, the legitimacy of the person named president and the system that resulted in such an outcome could be the spark of a constitutional crisis. In my book, I provide a number of these scenarios.

Joe: You criticize the National Popular Vote Interstate Compact in your book. What is the probability that this act would be passed? Currently, states representing 36% of the total electoral votes have signed up while states representing another 12% of total votes currently have bills pending in state Houses. Most Blue states are already signed on while Red states will likely not. Meanwhile, swing states are going to be needed to push the total over the edge, but these are exactly the states that benefit from increased attention as a result of the Electoral College. NPVIC doesn’t seem very probable then, does it?

Paul: The NPVIC is not only improbable but, I think, undesirable. The fifteen states that have signed on are the “low hanging fruit,” mostly larger and/or Democratic states that feel marginalized by the way the Electoral College works.  As I discuss in my book, the November election could actually make the NPVIC more likely. If Biden wins narrowly in 2020, Democrats would worry that during the next election the College could again put into the presidency a person who lost the national popular vote.  In this scenario, six states that I project as going “blue” in November but have not yet signed the NPVIC – Minnesota, Michigan, Pennsylvania, Arizona, Maine, and Virginia – could sign on to the compact in 2021, enabling this compact to take effect. In this event, the electors from all 21 of the signatory states would be required to cast all their electoral votes as determined by the outcome of a national popular plurality election.

I think such an outcome would produce widespread howls of illegitimacy.  Worse, it could allow future elections to be won by a candidate having a weak plurality in the national popular vote.  If it were widely understood that the NPVIC would determine the next president, we would have lots of candidates coming out of the woodwork seeking just enough national votes to win.  Under the NPVIC (or any system determined by a national popular plurality election), a person who had a small but unrepresentative base get could enough votes to win in a multi-candidate election, and then govern in a way that was unacceptable to most Americans.

Joe: You argue that the NPVIC should not pass because it will “engender widespread confusion and distrust” and will be “inadequate protection against the rise of ideological demagogues”. Can you explain? Is the latter point not a defense of the electoral college?

Paul: Given the problems that underlie the question you ask, I think the Electoral College would probably be better than the NPVIC. But because of the moral deficiencies of the College, we need yet a different system. My proposal is intended to be better than either the current system or the one envisioned by the NPVIC.

Joe: You proposed a new and creative solution: an “instant run-off” system with a “preliminary national election” narrowing a field of 20 or 25 aspirants to a final group of perhaps five, from which voters, returning to the polls in November, would then declare their preferences in ranked order. What are the benefits and drawbacks of this system? Do you think it would have a chance to pass? Would this change be politically neutral?

Paul: My proposal provides for a two-stage national vote. In the first preliminary stage, people would either approve or disapprove candidates from a long list including those nominated by party leaders (rather than through the messy primary stem currently in place), insurgents (those like Bernie Sanders who are passed over by party leaders), third-party candidates, independents, etc. Rather than selecting the one candidate who one most prefers (based on such things as ideology or “fandom”), voters could approve of each person on the list who they thought sufficiently qualified and trustworthy to be among the finalists in the general election.  They could also indicate their disapproval of anyone who they thought unqualified and /or untrustworthy.  To be one of the five or so finalists, a candidate would have to be more approved than disapproved and they would have to be among those having the greatest net approval.  Such a preliminary approval election would eliminate those candidates having only a small base.

In the second general election, voters would rank-order the five or so winners from the preliminary election.  At this stage, voters would rank candidates not just on the basis of their qualifications and trustworthiness but on the basis of their values.  If no one received a majority of first-place votes (which of course would be likely), votes would be transferred from those dropped from consideration (given their low number of first-place votes) to voter’s next ranked candidates.  This would prompt candidates to seek to get transferred votes by appealing to those beyond their immediate and partisan base.  The idea is to get a more consensual outcome and a more inclusive President.  And it would seek to have a President whose values most coincide with those that are widely held by citizens as a whole.

So is this system neutral?  In the book, I show it has no Republican or Democratic bias (in the illustration of how my system would work, a Republican other than Trump prevails).  But it would penalize either major party that failed to nominate a widely acceptable candidate and that continued to practice the politics of polarization. Parties that did these things could not long prevail under my system and they would likely be replaced by better, more consensual, parties in the future.

Joe: You also talk about a constitutional amendment for Congress to create legislation regarding all aspects of national elections (e.g. voter registration, campaign financing, voter identification) and for a National Election Commission. Why do you think these are necessary? Do you think these are possible?

Paul: The big problem with the Electoral College system is that it is excessively state-centric.  It was developed in part to make the states-qua-states have out-sized roles in the selection of Presidents. But the President and Vice President are the only national leaders whose constituents include each and every voter.  Every American as an individual is subject to presidential actions.  While federalism is very important in American democracy, presidential elections are not appropriate settings to further federal values and to delegate to the states as collective entities important roles in presidential elections.  Thus, the things you mention should be part of national rules for presidential elections.  A constitutional amendment abolishing the Electoral College and implementing national popular elections as just described, should also give national institutions the authority to do such things as provide presidential campaign financing rules. The amendment I propose would allow various Congressional authorizations and National Election Commission implementations–such as a national mail balloting during a pandemic–that the Supreme Court could not annul on grounds that they are not authorized by the Constitution.

Joe: Unsurprisingly, the American public is divided along political lines on this issue. According to Pew, 58% of Americans support a national popular vote whereas only 40% support the electoral college. When you divide by party lines, 81% of Democrats support abolishing the electoral college versus only 32% of Republicans. As with so many other issues in our country, how might we break out of our bubbles and come to a consensus on this issue?

Paul: You are right that this is a very partisan issue. I view a major theme of my book as being an attempt to get Republicans, and to a lesser extent Democrats, to be less partisan and polarizing.  I have many friends and have had many students who are Republicans, and many of them want their party to be more pluralistic–to work with Democrats to solve urgent national problems, to move away from sole reliance on Trump’s narrow base, and to embrace reforms that would make our country a better pluralist democracy.

I provide Republicans many good reasons why they should give up their wrong-headed allegiance to the Electoral College.  And, of course, I alert Democrats that trying to get a national popular-plurality election through a NPVIC is also wrong-headed.  I want a system that would undermine the polarized partisan Republican-Democratic duopoly that has failed to provide adequate democratic elections and good government for too long.  Under my system, if the Republican or Democrats persist in their overly partisan manners, they could more easily be replaced by new parties who better represent the diversity of views and identities that currently constituent the American political community.