What follows is an undated and revised version of a lecture I presented in KCMO on July 2, 2024.

THE ELECTORAL COLLEGE today is a poorly understood, complex, undemocratic relic.    

Here are its basic features as it operates today

• Since 1964, the College has been composed of 538 electors, constitutionally imposed to select our president. 270 electoral votes are needed to win and become President
• State representation in the College: each state has electors equal to its number of representatives and senators 
• The Constitution declares that state legislatures choose its electors 
• By 1870, all states had laws providing for electors to be determined by popular vote 

• The unit rule or “winner takes all” feature: The candidate getting the most votes within a state gets all electoral votes of a state – except in Nebraska and Maine (which have district plans, awarding an electoral vote to the candidate winning the most popular votes in a Congressional district and two electoral votes to the candidate winning the most popular states in the state) 
• Parties name loyalists to be “honorary” electors , who infrequently became rogue electors (who abandon loyalty to their party and the candidate to whom they were initially pledged)
• The casting and counting of EC votes
  – Electors of winning party assemble in state capitals in mid-Dec, cast their (known) ballots, which are then transmitted to Congress
  – On the following Jan. 6, the President of the Senate counts the ballots in the presence of members of both branches of Congress; this element had been merely ceremonial until 2021
  • The ever-present threat of a “House Contingency” selection of the president
    – If no candidate wins a majority of electoral votes, the results of the November popular elections    in the states would be discarded, and the public would have no further role in selecting our leader  

– The House of Representatives would assemble to select the president, with each state having one vote, which would presumably be case based on the partisan split of state delegations 

– The Senate would select the VP
– Until 2021, only three scenarios were seen as possible triggers of a House Contingency election 

1. If the Republican and Democratic candidates are tied, each getting 269 electoral votes
2. Rogue (“faithless”) electors defect from a narrow winner in the November election.                3. Third-party candidates win some electors in a few states, leaving both major-party candidates short of 270 

But in 2021, a fourth scenario was introduced: Challenges from any Senator or Representative at the joint assembly of both houses of Congress on Jan. 6 with the intent of denying victory and/or legitimacy to the apparent winner.   

Historically, challenges to particular slates or candidates were infrequent and inconsequent.   

The Electoral College as currently operating has several problems 

•     The possibility or another  mismatch between popular votes and EC votes,  like those in 1824, 1876, 1888, 2000, and 2016   
Each time, these mismatches elevated a Republican over a Democrat 

• The legitimacy of the winner is reduced if (s)he gets less than majority of popular votes, as has happened on 19 occasions (such as 1960, 1968, 1992, 1996, 2016)    

•     Constitutional inequality of voter power gives voters in small states more power than those in big states.  This arises from the Constitutional provision that the number of electors of each state is equal to the size of its House delegation and its two senators.  This provision gives voters in smaller states as much as three times s the “voting power” as those in large states

• Voters in swing states have more power than those in safe states.  Candidates focus on voters in the most competitive states, as voting outcomes in safe states are effectively pre-determined, This means that individual voters in safe states have no real chance of influencing the selection of our national leader 

• Third-party and independent candidates are disadvantaged by the unit-rule of most states. The winner-take-all feature requires such candidates to have more popular votes than both the Democratic and Republican candidate to be represented in the EC.  Such candidates who lose narrowly in a state get no electoral votes, undermining the future viability of their party

The EC’s unit rule augments our first-past-the post feature of our elections to sustain our two-party duopoly

• The possibility always lurks of the popular vote being ignored, if the  House of Representatives choosing  our national leader by a process intended to protect inequality and slavery
  • Increases in electoral and legislative polarization (as observed since 2000)
  • Reductions in inclusiveness of electoral and legislative coalitions (as recently observed)

Let’s retreat to 1787 and consider the place of the Electoral College in the American Constitution 

Disagreement among framers on how presidents should be selected was a major obstacle to their adopting the Constitution and thus achieving a national political community with a significant national government  

• Fears about popular support of demagogues made framers leery of a national popular vote
• Congressional selection procedures (first in the Senate, then in the House) were proposed, but these alternatives would violate the widely-accepted separation of powers doctrine
• Stalemate on this issue threatened agreement on the overall Constitution, as some delegates left prematurely during the long, hot Philadelphia summer 
• Believing that the “consent of the governed” could be achieved by ratification in states, the framers settled on the Electoral College with no required direct citizen involvement in presidential selection.  Long-regarded by political scientists as a “jerry-rigged solution,” the NYT columnist, Gail Collins on 9/25/24, called this the solution of  “the committee on unfinished parts” that “squished together” roles for citizens, state legislatures, congress, or “something else” into the confusing system that has determined our national leader for more than two centuries.  Here are these “squished together” elements of the framer’s Electoral College:        

• State legislatures were tasked with appointing their allocated electors.  States could use popular elections to determine their electors, or state legislatures could directly appoint such electors 
• Those appointed as electors were expected to survey the country for prominent national leaders and nominate two such persons for the presidency  
• The person named by a majority and having the most nominations would become president and the person getting the 2^ndmost electoral votes would become VP  

• If no person was nominated by a majority of electors, the House would select the president using a process that gave each state one vote.  It was apparently assumed that state delegations in the House would gather and make a partisan decision by majority rule 
• It was anticipated that, after an initial selection of George Washington, the House Contingency process would become a normal feature of presidential selection and this would give each relatively-small slave state (having fewer voters) the same power as the larger northern states, making difficult the future abolition of slavery 
• Thus, the framers from the slave states were especially enthusiastic about the Electoral College, since it vastly increased the power of white slave owners to control the selection of the president, as initially happened when the Virginia dynasty became our 1^st, 3^rd, 4^th, and 5^th presidents

The House Contingency Election of 1801 

• Congressional party polarization emerged during the Washington administration between 

–  Federalists led by Hamilton, Adams, Pinckney and Washington (?) 

             –  Democratic-Republicans led by Jefferson, Burr, Madison, and Monroe 

• The Jefferson-Burr ticket (endorsed by Congressional Democratic-Republicans) narrowly defeated the Adams-Pinckney ticket (endorsed by Congressional Federalists) in Nov. 1800, winning 9 of 16 states, but because Jefferson and Burr both got 73 electoral votes compared to 69 votes for Adams and Pinckney, the House Contingency process was invoked to break the tie between Jefferson and his running mate
• The composition of the House was based on 1798 “off-year” elections (not those of 1800), when the Federalists still controlled nine House delegations 
• To prevent Jefferson, many Federalists voted repeatedly for Burr 
• After 34 failed votes, Hamilton prevailed on enough Federalists to put a “man with the wrong principles ahead of the man with no principles” 

Thus, t the flawed design of our revered founders was soon apparent 

In 1804, The 12th Amendment was adopted to revise this flaw in the EC
It differentiated votes for president and vice-president, institutionalizing party tickets
It reduced the options in the House Contingency process to the 3 top presidential vote-getters in EC 

The Electoral College during the 19^th Century 

As states extended the democratic franchise, the Federalists faded and Democratic-Republicans  (DRs) dominated.   An “era of good feelings” emerged during the Monroe presidency (1816-1824)

In 1824, Jackson won more popular votes than other candidates, but the EC divided votes among leading DRs (Jackson, Adams, Crawford, and Clay) with no one getting a majority 

Calhoun, the fifth DR contender, had withdrawn to become the sole VP candidate 
Under the 12th Amendment, this meant the House had to choose among Adams, Jackson, and Crawford. The ineligible Clay supported Adams, ensuring that John Quincy Adam become our 6^th President 

After Adams named Clay as his Secretary of State, Jackson alleged a “corrupt bargain” 

During the next four years, Jackson campaigned as a democrat committed to the principle of popular rule and beat Adams in 1828.  He then became a founder of a new and separate Democratic Party. 

Jackson’s “imperial” and “populist” presidency prompted “anti-Jacksonians to form the Whig Party

After 25 years of competition between the Democrats and the Whigs being marred by the role of third parties (like the Anti-Masons, the Know-Nothings, and the Free Soilers), Republicans organized as a new party and replaced Whigs in 1856, setting the stage for enduring two-party competition 

1876 was the next instance when the EC proved decisive, as Hayes (R) lost the popular vote to Tilden (D) but Tilden could not secure an EC victory, as his electors in Oregon, Louisiana, Florida, and South Carolina were challenged (mostly on grounds of suppressing Black votes) and were ultimately replaced by Republican electors committed to Hayes 

Probably because of a compromise that gave Democrats their goal of ending Reconstruction (in LA and SC), an Election Commission recommended that the votes of Republican electors in each of the disputed states be submitted and counted, and this recommended prevailed

1888, Ben Harrison (R) lost the popular vote but prevailed in the EC defeating the incumbent Grover Cleveland (D) (while this outcome was highly consequential in terms of promoting industrialization and economic inequality….)

No other “mismatches” occurred during the next 112 years, resulting in the EC became an afterthought in the new political science discipline (which was founded in 1903)

The 2000 election (which resulted in the College becoming a personal “hobby”)

• During the 2000 campaign, the possibility was widely discussed that Al Gore could win in the EC even if George W. Bush won a land-slide popular-vote victory in Texas
• This prompted calls to the KU Poli Sci office from the media and civic groups inquiring about how the EC was regarded by the political science profession 
• With our election and presidential specialists away, these calls were referred to me 
• Knowing little about the EC, I researched the poli sci literature, which led me to recognize the discipline lacked any paradigm or consensus regarding this method of selecting our president
• Fearing a KS rebellion if the EC put Gore in the White House even if Bush won the national popular vote (on the basis of his landslide victory in Texas), I wrote a column the weekend before the election on the need to abide by Constitutional essentials. But when the results were the opposite of those anticipated, I had to revise my column, arguing that Bush’s apparent electoral college victory determined the outcome. The Kansas City Star published it the next day

• Gore’s subsequent capitulation echoed my argument that the presidential legitimacy rested on their selection being in accordance with the Constitution, prompting me to be cast as a defender of the EC 

• It also prompted me to wonder if poli sci could produce some sort of consensus about the EC 
• I recruited Bird Loomis to join me in assembling 3 dozen colleagues throughout the country to see if we could agree about how best to choose our president (and quickly produce a class-room best-seller on the subject) 
• While the 36 project participants could not come to any disciplinary consensus, the EC was more supported than 6 alternative systems:  
  • A national popular vote (allowing a plurality winner)
  • A national popular vote with a run-off if no one had an initial majority
  • A Bonus-Plan, to increase the College by 102 electors who would all vote for the winner of the popular vote, preserving the College but almost ensuring the winner would be the candidate with the most popular votes in the nation
  • District representation, with winners of congressional districts getting electors, thus reforming the “winner-take-all” feature of the College
  • Proportional representation, with states casting electoral college votes in proportion to the distribution of popular votes in each state
  • An “instant run-off” which would provide for someone emerging as the popular majoritarian winner, but without having a separate run-off election (this will be developed below, but only I and one other participant originally thought this was an “ideal” – though not very realistic – system for selecting our president).  But since I had to be neutral in my convener role, I did not then advocate for it.

• Chatham House released our book, Choosing a President, in Sept. 2001; The events of 9/11 removed electoral college reform from the public agenda and doomed the widespread adoption of CAP in Poli Sci classes
• During 2004, 2008, 2012, and 2016 (as it appeared that the College could decide outcomes in what were forecast to be very close elections), I made many EC presentations. And I wrote some articles hoping to encourage EC reform efforts – with my supporting an “instant runoff” 

2016 

• Despite losing the popular vote to Hillary Clinton by 3 million votes, Donald Trump prevailed in the EC by claiming unexpected victories in PA, OH, and FL (and the other Maroon-colored states that flipped from Democratic to Republican between 2012 and 2016)

This surprise was most often attributed to 

• Hillary’s failure to distinguish Trump’s limitations from those of his (“deplorable”) supporters who opposed Obama and Clinton priorities of multiculturalism, lenient immigration, and (minor) redistribution 
• Bernie Sander giving only weak support to Hillary 
• Three 3^rd-party candidates siphoning off 5 million votes, with analysts arguing these came  primarily at Hillary’s expense 
• FBI Director James Comey’s reopening Hillary’s email issue just 10 days prior to the election 

While Hillary, following Gore’s example of 2000,  quickly conceded, Trump began casting suspicion on election results, arguing he had really won the popular vote as well 

2020: The pandemic election 

• Biden prevailed with 51.7% of popular vote and 306 electoral votes, so this was not another mismatch 

• The EC came into play because of Trump’s and other Republicans’ proclamations of “the Big Lie” of widespread voter fraud and miscounts
• During the next 6 weeks, they lost every court challenge (about 60) to outcomes in states where Trump lost by slim margins   
• As Jan. 6, 2021, approached, Trump called GA Secretary of State Brad Raffensperger asking him to find another 12,670 votes for him 
• Trump supporters like John Eastman pursued a novel scheme, proclaiming and defending the doctrine of “state legislature sovereignty” in which state legislatures would convene in special sessions to replace Democratic electors with Republican ones in states where Biden narrowly beat Trump after popular votes were counted (and recounted).                                                Getting Republican state legislators in PA, MI, WI, NV, and AZ to go along with this scheme would have triggered a House Continency election that (given Republican dominance in the legislatures in these states) would have given the presidency to Trump
• When Congress convened to count the ballots on Jan 6, 2021, they hoped VP Mike Pence would rule to set aside the electoral votes from these “contested” states.
• After the rebellion was quelled, Nancy Pelosi reconvened Congress to complete the process and validate Biden’s victory.  

But the GOP seems to have found another route to undermine democracy

2024: A Critical Election (of danger and opportunity) 

• Prior to the party conventions, the presumptive nominees of both parties – Donald Trump and Joe Biden – were relatively unpopular

• This prompted widespread concerns that 3^rd parties (e.g., “no labels,” the Greens, the Social Democrats) would support other candidates like RFK Jr., Jill Stein, or Cornel West.                This could result in neither Trump nor Biden getting a majority in the College, triggering a House Contingency election that would have given the presidency to someone having minimal legitimacy

• During the first debate between Trump and Biden on June 27, Biden appeared old, senile and/or of declining competency to many viewers and commentators, prompting many prominent Democrats to urge Biden to withdraw, which he did on July 24.
• Shortly thereafter, he endorsed his VP, Kamala Harris (who I had featured prominently in my the 28^th Amendment, published in 2020)  
• ‘la quickly gained both widespread Democratic support and became somewhat of an overnight “savior sensation” and soon overlook Trump’s lead in the national popular polls
• Kamala emphasized 
  • Being a much more reliable supporter of American democracy than Trump
  • Being a more moderate Democrat than portrayed by Trump.
  • Being supportive of Biden’s various successes (e.g., funding environmental sustainability initiatives, advocating for women’s choices, especially regarding abortion, restoring the American economy, and supporting additional measures to reduce inflation)

During her first (and only?) debate with Trump, she was widely praised for demonstrating her presidential capabilities

• Trump soon repositioned himself as a less extreme candidate than he had earlier seemed on the basis of his nativist, racist, misogynist, and authoritarian statements and stances
• Now many Republicans claim that they and he only reject liberal dominance and arrogance, not the broader “liberal consensus” upholding democratic values and long-standing liberal policies like those adopted during the New Deal (e.g., social security) or in response to the Civil Rights movement.  Their radicalness does not extend to ditching our democracy,  but will be limited to pursuing major policy and institutional changes.  (In From Ideologies to Public Philosophies (2008), I discuss the crucial difference between extremism and radicalism.) 

– imposing more restrictions on immigration including exporting illegal immigrants 

– supporting more state restrictions and limitations on abortion 

– pursuing more “supply-side” economic policies (including major reductions in progressive income and capital-gains taxes, slashing public investments and social spending, and relying on tariffs on imports to fund essential federal government functions)

– reducing the size, independence, and authority of civil servants provided by the Pendleton Act of 1883, thereby reducing the role of expertise provided by professional bureaucrats in the “deep state” and increasing the role of political appointees who would pursue the Heritage Foundation’s agenda as provided in Project 2025

– reducing our involvements in foreign affairs and our commitments to NATO and other long-time allies  

• Trump and his GOP supporters remain silent on whether they will abide by the results of the Nov. 5 election

Democratic fears of a Trump victory 

Overall, Democrats (and RINO Republicans) worry that given Trump’s authoritarian tendencies and statements [and the work by Levitsky and Ziblatt (2018 and 2023)}, American democracy could die or be seriously diminished by 

• Lessening the liberal emphasis on the rule of law 
• Retaliating against (and punishing) partisan opponents 
• Enacting new restrictions on voting 
• Stifling such freedoms as those involving reproduction, speech, and the press 
• Moving SCOTUS even further toward the right, embracing a more robust endorsement of the Thomas-Alito juridical philosophy of originalism 
• Removing expertise and knowledge of civil servants from the policy implementation process, making policy more power driven 
• And perhaps by Trump remaining in office in 2028 by overturning the 22^nd Amendment, or securing a family dynasty by supporting more aristocratic and monarchical institutions (Queen Ivanka?)

Democrats also worry that Trump could crack down on all opposition – imprisoning his opponents and silencing his critics – all in the name of overcoming the current disorder that he believes characterizes America

Such major changes might be achieved by having 2/3rds of the state legislatures (from Red, small, and formerly Confederate States) call for a Constitutional Convention to draft a new Constitution that would free President Trump and MAGA Republicans from constraints imposed or implied by our current one

In an era of rapid change domestically and globally and when the majority is no longer – or will no longer be – comprised of whites, men, and Christians, “democratic equality” would play a lesser role than “corporate profits” and “Christian values” in American politics 

What is the current state of the “horserace”?  

(For a similar analysis, see Nate Cohn in NYT on 9/28/24)

• At the end of September, both the popular and electoral votes are basically deadlocked
• But given our presidential-selection system, only the outcome of the Electoral College matters

• Trump (Republican) strongholds include: AL, MT, ID, WY, UT, ND, SD, NE, KS, OK, TX, IA, MO, AR, LA, MS, AL, SC, and the western district of ME.  
• Harris (Democratic) strongholds include: ME (3), VT, MA, RI, CN, NY, DC, VA, MN, CO, NM, CA, OR, WA, HI. 
• Among the remaining eight most competitive states, polls show Trump slightly ahead in AZ and GA and could also win in NC and NV.  Winning these states would give him 268 electoral votes
• He would need only 269 electoral votes to send the decision to the House Contingency process, which would almost certainly result in Trump’s election. 
• If Harris were to prevail in the “Blue Wall” states of MN, MI, WI, and PA, she would have 269 electoral votes.  
• ‘La is also slightly ahead in Nebraska’s 2^nd District (Omaha), and under its District Plan, she could get to 270 by winning that locality.  Nebraska Republicans are trying to change to a winner-take-all-system to prevent that outcome.  Apparently, the Democrats, along with one recent convert to the Republican party (Mike McConnell), have enough strength in Nebraska’s unicameral legislature (the only such state legislature in the nation) to filibuster that outcome.  But it is possible that the Republicans could shut off the filibuster and vote to abandon Nebraska’s District Plan at any time prior to mid-December when electoral votes are formally submitted to Congress (to knot the EC at 269 votes for both Trump and Harris, allowing the House to decide the election for Trump)
• Is this any way for the world’s leading democracy to select a President?

If Trump prevails by winning a House Continency election or through another  mismatch victory, or even if Harris wins a narrow victory, new presidential-selection reform efforts are likely to be unleased

Most discussed is having a national popular-plurality election as supported by some Republican and many Democratic leaders – but not Joe Biden 

• Polls have shown enduring popular support for such a reform
• This would correct many of the previously mentioned problems with the EC, but other problems would remain: 
  • It would undermine our 2-party system, opening the door for success by niche candidates having narrower bases of support than that of Trump 
  • Slim national popular-vote victories would be contested on the basis of voting irregularities. Examining and debunking claims throughout the nation would be highly conflictual, difficult, and perhaps impossible
  • Other unintended consequences could result in even worse governance than we have presently
  • Passage of a constitutional amendment is very unlikely given Article 5 of the Constitution that requires 2/3rds majorities in both the House and the Senate and approval by 3/4^th of the states.  Southern and small-state opposition would likely doom such a reform.  Over 700 such reforms (most recently in the early 70s) have failed to survive opposition in the Senate

Perhaps more feasible is the National Popular Vote Interstate Compact (NPVIC):

• This reform seeks to get a de facto national popular-plurality system while bypassing the need for  a Constitutional Amendment.  It envisions an agreement among signatory states to cast all of their electoral votes for the winner of the national popular vote

• It has been developed and led by academics like Robert Bennett (NW Law), Akil Amar (Yale Law), Vikram Amar (Ill Law), and John Koza (Stanford Computer Science) and other scholars at a 2008 MIT Convention on Electoral College Reform. 
• It would go into effect only when states that command 270 or more electoral votes have agreed to the compact
• Currently, it has been adopted by 17 states and DC that collectively control 209 electoral votes:
  MD, NJ, IL, HA, WA, MA, DC, VT, CA, RI, NY, CT, CO, DE, NM, OR, MN, ME
  • Adding additional states controlling 61electors would be difficult; It is possible but not  very likely that MI (15), GA (16), VA (13), NV (6), and AZ (11) could join NPVIC
• I did not and have not endorsed the NPVIC because I think it has the same defects as those listed above for the National Popular-Plurality proposal 
• It has the additional defect of being perceived as violating the Constitution 
• Congressional and SCOTUS resistance would be very difficult to overcome
• Some states could defect from NPVIC, sabotaging its implementation
• Challenges during the Jan. 6 counting of ballots would be highly likely 

So, let’s consider the increasingly discussed (and used elsewhere) Rank-Order Voting proposals (the “ideal” I supported but could not advocate during our 2001 Electoral College Reform Project)

How ROV works (for details and examples, including how ‘La’ might have emerged earlier if this method was used in 2020, see my 28^th Amendment: Beyond Abolishing the Electoral College (Gatekeeper, 2020) 

Citizens can rank-order (3 or more) candidates.

Computers would initially tally everyone’s first-place votes 

If no one won a majority, computers would “instantly” reassign votes from those who has the least first-place votes, (or subsequently were out-of-the running), to their voters’ next highly-ranked candidate 

In contests with 5 or more candidates, the lowest-ranked candidate would be dropped first, and their votes reassigned to their voters’ next most highly-ranked choice 

If that did not yield a majoritarian winner, the next lowest-ranked candidate would be dropped and their votes reassigned…. 

Until one candidate emerged with a majority 

The merits of the rank-order system 

•     It is not that complex, as most people are familiar with ranking their alternatives

– Football teams are rank-ordered to determine who qualifies for the national championship playoff

– Rank-order voting is used to determine Oscar winners 

• While it is a “foreign import” – being used in Australia, NZ, Ireland, etc. –  it has been successfully used for some American municipal elections (e.g., in Cambridge, Berkeley, Minneapolis, and Santa Fe), and in some state primaries (e.g., in NY and KS) and in Maine’s gubernatorial elections 
• It provides for voter equality, as every eligible voter would count equally 
• It gives all candidates incentives to reach out beyond their base in order to be named as the 2^nd or 3^rd choice of voters
• This should result in less polarization and more inclusiveness (both in campaigns and in governance) 
• There would be more inoculation against extremist candidates and governance would be less targeted toward narrow electoral bases. 
• It would not have the current  biases against third parties and independents
• It would encourage sincere voting and discourage sophisticated voting (as when I cast my 2000 vote for Gore, realizing that voting for my sincere preference, Ralph Nadar, would be a wasted vote) 

In my 28th Amendment, I also proposed reforming our “nomination mess” – abolishing the primary system 

•    I proposed having a national preliminary (nominating) election on about Sept. 1.

 On the ballot would be both major-party candidates (chosen by “party regulars” at party conventions held 2-3 months earlier), and 3rd party and independent candidates meeting petition and endorsement requirements 

• Each candidate (or the party nominating a candidate) would select a running mate.
• I imagine a slate of about 15-25 presidential and VP tickets
• Approval ballots would be employed, enabling voters to indicate if they 

“approve,” “disapprove,” or abstain regarding each  ticket

• Instead of voting for “who do I most want?” citizens would make judgments about which candidates they trust and distrust, which are acceptable and unacceptable to them 
• The net approval of all tickets would then be determined 
• The 5 tickets most  approved by a majority and having the highest net approval would be eligible for public-financing, participation in subsequent debates, and included on the rank-order ballot to be used in the final (general) election in November 
• The winning ticket of the rank-order balloting would become President and VP 

But getting such an amendment to replace our primary system and the Electoral College with two such national popular elections would likely require 

• A new (and different) 28th Amendment, one that would ease the difficulties of passing constitutional amendments 
• Amend Article 5 of the Constitution to require only majority approval in both the House and the Senate of proposed amendments and then secure public consent by requiring approval of between 50% and 60% of all voters in a national referendum 

Toward a Better Understanding of Federalism

Since America is primarily a union of citizens (rather than states), national approval of political institutions, leaders, and major policies by our citizens should be achieved by national processes and rules

Federalism would now focus on allowing localities and states to resolve local matters, rather than vetoing national concerns and preferences having majority support in the nation (else we have the “tyranny of the minority”) 

• Harris could endorse amending Article 5 to facilitate a host of amendments to update the Constitution to make it better serve current national needs.  In order to enhance (or restore) the momentum she developed by getting Biden’s endorsement and by rallying Democratic support for her before and after the Democratic National Convention in August, she could propose this amendment as a means of facilitating needed popular democratic reforms to overcome the many “deadlocks of democracy” that have paralyzed national public policy and program improvements for decades and even centuries
• Trump and Republicans would likely support such a proposal, as they have called for many constitutional revisions of a more conservative nature involving such matters as caps on federal spending and taxes, on immigration, on bureaucratic regulations of the economy, etc. 
• After the election, bipartisan agreement on mending Article 5 of the Constitution could emerge
• This would set the stage for serious consideration of abolishing the Electoral College. 
• As early as 2028, a  (new) 29^th Constitutional Amendment for choosing our president by approval and ROV balloting could be passed (or not) under the rules of the new 28^th Amendment 

Conclusion:  Article 5 of the Constitution is highly dysfunctional.  Amending it along the lines suggested here is even more urgent than eliminating the Electoral College by a subsequent Presidential Selection Amendment (#29) as proposed here 

Because of new knowledge, new circumstances, and new problems, the Constitution needs many amendments.  

On 9/23/24, New York Times columnist, Michelle Goldberg, wrote

“Erwin Chemerinsky, the dean of the U.C. Berkeley School of Law and an eminent legal scholar, has come to despair of the Constitution he’s devoted much of his life to. ‘I believe that if the problems with the Constitution are not fixed — and if the country stays on its current path — we are heading to serious efforts at secession,’ he writes in his bracing new book, No Democracy Lasts Forever: How the Constitution Threatens the United States.

Chemerinsky’s description of the way our Constitution thwarts the popular will — including through the Electoral College, the growing small-state advantage in the Senate and the rogue Supreme Court — will be familiar to readers of books like last year’s “Tyranny of the Minority” by Steven Levitsky and Daniel Ziblatt. The surprising part of his argument is his call for a new constitutional convention, which can be triggered, under the Constitution’s Article V, by approval of two-thirds of the states.

Many on the right have long dreamed of an Article V convention, hoping to pass things like a balanced-budget amendment. Chemerinsky wants to use the process to advance changes sought by progressives. It is imperative, he writes, ‘that Americans begin to think of drafting a new Constitution to create a more effective, more democratic government.’  Without radical reforms, he fears, the country could come undone.

But I would oppose having a Constitutional Constitution, as that could undermine the most prominent “sacred text” of the American civic religion. Democratic capitalism is, I believe, the element of our political economy that most binds us together. 

Because our Constitution is silent or only alludes to these main elements of national life, we fret about the lack of constitutional guarantees for both democratic and capitalist fundamentals, and we fret that our most prized institution (either our democracy or our system of free enterprise) is endangered whenever we must deal with specific cases when democratic equality and economic freedom are in tension 

We should soon amend the constitution to guarantee basic human rights (political, economic, social, sexual, religious). But  applications of these broad rights would often conflict, making it necessary to legislate specific rights through normal democratic processes 

Rather than finding our political ideals and constitutional fundamentals solely in competing republican, liberal, and populist versions of democracy, we need to understand, affirm, and pursue pluralist and communitarian versions of democracy in order to provide for a wider underlying political consensus

Among the amendments I would recommend are those rectifying the failure of the framers to provide for national rules (other than the EC) for filling national offices 

It our representatives cannot overcome their partisan divisions, let citizens, rather than SCOTUS, make laws regarding malapportionment, corporate campaign financing, barriers to voter registration and participation, presidential immunity, and other practices that undermine democracy 

If our representatives cannot resolve national issues, let citizens determine outcomes of current vexing problems (like abortion) and emerging concerns (like AI and genetic engineering). Both new constitutional and legislative provisions should be addressed by using the ideals of pluralist and communitarian democracy. 

I see my method of revising how we select our president as both depending upon and furthering pluralist and communitarian ideals (which is another topic to be taken up in my next presentation).