The Insurrection at Capitol reveals another flaw in the Electoral College

Following the failed insurrection of January 6, 2021, the Electoral College’s sacred role in ensuring the legitimacy of our presidential elections was widely hailed. But that insurrection was occasioned by what had long been understood as a minor, ceremonial element of the College: the counting of ballots cast by electors and certified by state officials. President Trump and some of his Republican supporters in Congress—most notably Senators Josh Hawley and Ted Cruz—sought to throw out the electoral votes from enough key states so that Joe Biden would fall short of the vote he needed to win the presidency.

Responding to Trump’s unsubstantiated—indeed, thoroughly investigated and dismissed—allegations of fraud and irregularities in the casting and tabulating of popular votes, thousands of Trump supporters gathered to protest the results, and hundreds stormed the Capitol hoping to sow sufficient chaos to prevent Congress from performing its Constitutional role and Biden from entering the White House. Had Trump, his Congressional supporters, and the insurrectionists succeeded, the Electoral College process would have culminated in a House contingency election, presumably resulting in a victory for Trump.

While the Electoral College has many well-known democratic deficiencies, none may be as significant in the future and yet poorly understood by the public as the House contingency feature. According to the Constitution and the 12th Amendment, if no candidate gets a majority in the College—270 electoral votes today—the House of Representatives chooses the president. The House contingency process discards prior popular and electoral vote totals and puts center stage the partisan orientation of members of the House—but each of the 435 Representatives do not have equal influence. To win the House contingency election, a candidate must get the vote of a majority of state delegations. This year, despite Democrats (barely) holding on to their majority in the House as a whole, Republicans control 27 state delegations, and strictly partisan voting would have presumably re-elected Trump. The House contingency election equalizes the power of smaller, rural, and largely Republican states and that of larger urban, Democratic states, and it disempowers the largely Democratic Washington D.C. In short, Congressional challenges to electoral results in order to have House contingency elections could well become a future Republican strategy to counter demographic changes that project increasing popular and electoral votes being cast for Democratic candidates.

Faith in our electoral process has never been lower. To counter both the democratic deficiencies in Electoral College processes that are stressed by those on the left and the opportunities provided to those on the right to exploit these inequalities, we must seize the moment and have an extensive national discussion of comprehensive presidential election reform. I believe we now need not just minor fixes by Congress, the states, and local election officials, but a constitutional amendment enabling Americans to choose their national leader through processes that they now widely endorse.

Since the Bush-Gore election reignited interest in abolishing the Electoral College, a National Popular Vote by Interstate Compact has been a highly touted reform. The NPVIC proposes to achieve a de facto national popular-plurality system. If states controlling 270 electors (sufficient to dictate the outcome) sign an agreement to require their electors to vote for the candidate getting the most citizen votes throughout the nation, regardless of whether or not that candidate carried the state appointing the elector, the president would be the winner of the national popular vote. Currently 15 normally Blue states and Washington D.C. have signed onto NPVIC, and they collectively control 196 electoral votes.  If  most of the states that Biden won narrowly in November also became signatory states, the NPVIC could take effect, increasing chances for Democratic control of future elections. Such an arrangement, however, would hardly be a consensual electoral reform. Citizens in Red states would surely see this as an unconstitutional gimmick that is biased against them, and the Supreme Court would likely agree. Any reform based on an end-run around the Constitution will exacerbate citizens distrust of American democracy.

Instead, reformers could pursue a straight-forward constitutional amendment that abolishes the Electoral College and replaces it with a national popular-plurality system. Such a system might prompt citizens to believe that they now controlled the presidency, but that belief could be short lived, as that system—though widely used in most other American elections—would likely prove dysfunctional for choosing a president. Many of the deficiencies of the College, such as its unequal treatment of citizens, its biases favoring the two major parties and small states, and the outsized role that is given key competitive states would be eliminated, but a huge problem would remain. Someone could become president while getting less than a majority of votes and indeed by attaining only a small plurality of votes—getting as little as, say, 25 percent of the national vote. In short, candidates who appeal to a small base but who are despised by a large majority could frequently win, and distrust in government and the president could increase rather than decline.

Today, our politics is said to be polarized between Democrats and Republicans, but survey research suggests that this does not mean that people identify with and support strongly one of the major parties. It is closer to the mark to believe that many citizens simply dislike and distrust one of the major parties more than the other. If America continues to fragment into a wide array of identity groups and as partisan orientations broaden to differentiate ideological extremists from left-center Democrats and right-center Republicans, we can expect a wide variety of candidates to compete on the belief that they could prevail while winning only a small percentage of votes. In my book, The Twenty-Eighth Amendment? —originally published as the primaries began in February 2020 but revised to take into account the many changes that occurred prior to the general election—I speculate that a gaggle of candidates could compete for the presidency in a 2024 national election conducted under popular-plurality rules, and voters could disperse their votes broadly enabling a candidate winning less than 30 percent of the vote to prevail. It seems reasonable to imagine such a result as generating more chaos and worsening the capacity of national government to deal with our enormous political problems.

In that book, I also sketch a better presidential election system, though my concern is to begin, not conclude, a broad national conversation on the issue. In the remainder of this essay, I will briefly outline the main features of my proposed alternative to our current systems for nominating and electing presidents.

I propose abandoning not only our state-centric Electoral College but also our state-centric primary system, and replacing them with a preliminary national election employing approval ballots to identify about five finalists for a subsequent national election to be conducted under rank-order voting. ROV enables having an “instant run-off” in which votes for less supported candidates are transferred to citizens’ second (or other approved but lower) choices who have not been eliminated. Such balloting and transferring of votes concludes when one candidate achieves a majority—perhaps not of first-place votes but of enough highly-ranked votes to indicate wide (majoritarian) support. Rather than get into the details of that proposal, I shall conclude by discussing the three most important principles that underlie it.

First, the president (along with the vice-president) is the only national official who has a national constituency. No political leader affects the lives of each and every citizen more than the president. Therefore, he or she should be elected by and accountable to all American citizens, not to our states as collective entities. This feature of the presidency was understood by the framers as they considered proposals to have citizens throughout the country or their representatives in Congress choose the president. When a variety of concerns prompted opposition to these selection processes (and thus endangered support for nation-building project and the Constitution as a whole) the Electoral College became a jerry-rigged last-minute solution. This solution gave state legislatures power to designate their electors and it gave states equal power in possible House contingent elections, elements that surely appeased those delegates who were concerned with protecting state powers. But the framers did not intend for electors to become agents of state interests, else they would not have prohibited them from casting both of their votes (as initially provided) for residents of the state in which they resided. They likely assumed that state interests were represented well enough by other features of the American federal system.

Second, all citizens should have equal voting rights and have their vote count equally with those of every other American citizen. Such democratic equality was not highly prized by Constitutional framers. Most framers can be characterized as “aristocratic republicans.” As James Madison famously emphasized in The Federalist, the Constitution sought to empower better-educated, well-informed, and relatively community-minded representatives and chief executives. They rejected most of the more democratic arrangements that were widespread in the colonies. They thought citizen power should be limited to holding political leaders accountable, and often they were satisfied with indirect accountability, such as provided for the president through the Electoral College.

Over the past two centuries, more democratic norms that enhanced and equalized voter influence have slowly evolved. The 15th, the 17th, the 19th, the 25th, and the 26th Amendments have made elections more democratic. Congressional laws (such as the Voting Rights Act of 1965) and court decisions (including such recent rulings as that of July 6, 2020 upholding the capacity of state legislatures to prohibit and penalize electors who discard popular vote outcomes in their state) have become part of our unwritten constitution and thus support our increasing democratic political culture. My proposal would extend these concerns for equal voting rights by having national registration and identification rules and other such national provisions in order to end efforts by the states to curtail voting by some citizens. It would seek to give voters, wherever they resided, more equal influence. Citizens in Iowa and New Hampshire should have no greater role in the nomination of presidential candidates than citizens living elsewhere. In the general election, the votes of each citizen would be courted equally, regardless of their being cast in “competitive” or “safe” states.

Third, voters should be encouraged to bring communitarian orientations to the casting of their ballots. The way ballots are constructed can have an impact in promoting such mind-sets. Currently, voters can only indicate their first choice when they vote in primaries and in the general election.  How ballots are now constructed prompts voters to ask themselves “which of these candidates do I most want?” rather than ask themselves “Who among these candidates do we trust?” The initial approval ballot would enable citizens to indicate their approval or disapproval regarding a multitude of candidates in the preliminary election, and the tabulating of these votes would assure that only those trusted by a national majority would be under consideration in the final election. And giving citizens the opportunity to rank-order the final, widely-approved, candidates, should result in getting a president whose values most accord with a majority of citizens.

Liberal individualism has been more evident than communitarism in American history and culture, but Michael Walzer, Michael Sandel, Jane Mansbridge, Robert Bellah, and Amitai Etzioni are just a few prominent social theorists who have pointed to the role and importance of more communitarian orientations in America. In their recent book, The Upswing (2020), Robert Putnam and Shaylyn Romney Garrett provide a comprehensive study that suggests that communitarian values were widespread between 1900 and 1965, but declined during the late 60s.  During the past half century, libertarian “I-centered” outlooks have become increasingly prominent, but conditions now exist for a return to more communitarian “we-centered” values. My proposal is intended to coincide with such cultural change.

The overall goal here is to have all American citizens act as the framers envisioned the electors in the College acting. But with democratic values now widely proclaimed, choosing the president would no longer be a task reserved for an elite group of electors. Rather all citizens should be electors. Rather than seeing primary elections as an opportunity to express their single self-interested, ideological, or identity-based choices, citizens could come to see their role as being a member of a national community engaged in the collective task of locating well-qualified and widely-trusted nominees concerned with addressing our common problems and achieving our common goals. Rather than seeing the final election as an opportunity to vote against the candidate or party they most disdain, they would see that election as a chance to express their multiple values in a manner that encourages all finalists to run on platforms that are inclusive of as many Americans as possible.