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.

The Ugliness of American Politics: My Top-10 Culprits

A friend of mine in Thailand, recently wrote:  “As the presidential election is approaching, I have seen in the news that the situation in America is getting uglier. What is going on?”

To which I responded: Yes, there is a lot of ugliness here.  On the surface, American politics now seems reduced to the issue of whether the Republicans can steal the election by suppressing voting rights in just enough states to prevail in the Electoral College or whether Democrats can replace the Republicans by outspending them. (Democrats seem to believe having such resources requires that their supporters be reminded by email at least 50 times each day, that while  the sky has already fallen, a deeper descent into Hell awaits unless each recipient kicks in anotherallegedly triple-matched$25 to $50 soon.) 

But at a somewhat deeper level, here is my personal list of the “top ten” culprits of our political ugliness.

1. Donald Trump’s lack of character (his narcissism, his lies, his aversion to science and truth, and so forth) and refusal to accept democratic norms (especially his willingness to undermine human and voting rights and his refusal to pledge to abide by electoral results).

2. The Republican Party generally and Mitch McConnell specifically who have been Trump’s lapdogs and have refused to oppose his most egregious pronouncements and actions.

3. Trump base in the electorate: mostly those aging white men who are deeply threatened by the increased multiculturalism in America.  They believe that the advance of women, immigrants, and especially Blacks threatens their status and jobs.  (Isabelle Wilkerson’s recent Caste is a great source on this.)

4. Our political culture suffers from what David Brooks (in the forthcoming issue of the Atlantic) calls “moral convulsion.”  Our political culture has long encouraged and accepted excessive individualism, materialism, consumerism, and addictions to various amusements, and these orientations have only become stronger in this century.  Additionally, our culture is now increasingly characterized by declining and dangerously low political, social, and interpersonal trust.  Trump and his Republican allies have added a strong dose of tribalism, to increasingly divide us along partisan, racial, and other lines.  Our overemphasis on sports has encouraged people to regard politics as just another brutal competition, in which “our team” needs to prevail at all costs over “the other team.”  America must triumph in international politics (even against our allies), whites must dominate and exclude people of color, “my party” (especially Republicans) must crush and even banish the evil-doers in the other party.  When people are increasingly distrustful and resentful of others across national, racial, partisan, religious, and other such lines, there is little ability for us to take effective collection actions, such as accept regulations to alleviate the pandemic, climate change, etc. 

5. Social media and talk radio increasingly provide outlets for conspiratorial allegations, fantasies, and unvetted lies accepted by and thus disseminated by those Americans who are poorly educated, uninformed, and crazy. These are the folks that Hillary Clinton saw (and unfortunately labeled) as our “deplorables.” I think they make up only 10% of our population, but they contribute disproportionately to our increasingly flawed political culture.   

6. The increasing concentration of wealth at the top (the 1%); the excessive privilege of their kids; and the limited social mobility of those in the lower half of our economic class system

7. An increasingly irresponsible, profit-oriented, and politically-active corporate sector that has used its increasing clout to undermine the ability of our regulatory agencies to act on behalf of the public interest and provide justice.

8. The Democratic Party, while not nearly as corrupt as the Republicans, has nevertheless not always been a responsible alternative.

9. An “originalist” and deeply conservative Supreme Court.  (I do not include Chief Justice John Roberts as an “ugly” problem here, as he seems to me to be a typical conservative Republican and thus someone operating within acceptable political differences.)

10. An ancient Constitution that needs a series of amendments to update our electoral and governmental structures. Note that I am not saying the whole Constitutional system is rotten and needs to be replaced, but specific changes are needed.  Getting rid of the Electoral College is but one example.

There are many good things about America, but, in my judgment, these are the main things that prevent the realizationand indeed now threaten to undermine our pursuitof such American ideals as inclusion, opportunity, justice, and democracy.

Please join Lynn and I in hoping for a thorough house cleaning of the Trump administration and the Republican Senate next week. 

Beyond Abolishing the Electoral College

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 (, 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.