BY LAWRENCE LESSIG, OPINION CONTRIBUTOR — 10/31/18
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The Electoral College is returning to the center of American political debate. But fortunately, this time, the questions are getting raised before there is an actual vote in a particular presidential election. Alexandria Ocasio-Cortez rallied a Democratic Socialist base, declaring “it is well past time we eliminate the Electoral College, a shadow of slavery’s power on America today that undermines our nation as a democratic republic.” Predictably, her criticism triggered a quick defense from the right. Tucker Carlson, among many, declared the college is as the framers meant it to be, and that Democratic (or Democratic Socialist) opposition was nothing more than sour grapes.
Yet this debate is much more interesting—and important—than a typical left/right fight. For the college, as it is, gives no one what they should want. It certainly does not give us what the Framers expected. And if we’re going to reform what everyone should recognize as a broken institution, we need strategies beyond amending the Constitution. (Any amendment from Congress would require 2/3ds of Congress to support it, and then 38 states to ratify it. That’s not even conceivable in the current political climate.)
The Electoral College today is defined by a choice that all but two states have made to allocate their electors to the winner of the popular vote in their state. If a candidate gets even a single vote more than the others, he or she gets all of the Electoral College votes in that state.
This is the “winner-take-all” system. And the consequence of winner-take-all is that candidates for president focus their campaigns exclusively on the so-called “battleground states.” In 2016, 99 percent of campaign spending was in just 14 states — states representing 35 percent of America, and an older and whiter America. That means, in every election, candidates for president focus not upon what America as a whole might care about, but about what this unrepresentative few care about most. That explains the massive Medicare prescription drug subsidy passed by President Bush just before the 2004 election (Florida and Pennsylvania have many older Americans). It explains why Florida (a battleground state) has received an exemption from President Trump’s offshore drilling regulations, while New Jersey (not a battleground state) apparently can’t even get a hearing.
The most plausible alternative to the Electoral College as it is is the National Popular Vote Compact. If states representing the equivalent of 270 electoral college votes commit to this plan, then those states would select electors committed to the winner of the national popular vote — regardless of who wins in the state. This change could happen without an amendment to the Constitution. It is certainly constitutional under the framers’ design.
The advantage of this alternative is that it would end the exclusive hold that the battleground states have on our presidential elections, and hence, on the president. Candidates would have an interest in getting votes from wherever they could get them. That might be New York or Texas (states that now just don’t matter). It might be Missouri or Kansas. The National Popular Vote Compact would make every vote in America count equally — and thus end the possibility that a president would be selected by a minority of American voters.
Critics of the National Popular Vote Compact fear it would create a fly-over democracy—that candidates would focus exclusively on the populous states and ignore the small states. Conventional wisdom is that the electoral college was meant to benefit small states; a national popular vote would turn that preference upside down.
Yet this criticism misses an important point. We just don’t know what a national campaign for president would actually look like. Maybe it would make sense to focus on big cities alone. But big cities are expensive media markets. If you can get the same votes in the Midwest for a lower cost, maybe campaigns would focus there.
More fundamentally, this criticism doesn’t even describe the existing system accurately. Winner-take-all doesn’t benefit small states. It benefits battleground states. Some battleground states are relatively small—New Hampshire, Iowa—but the most important battleground states are not small at all—Pennsylvania, Ohio, Michigan, North Carolina, Virginia. Winner-take-all thus achieves neither the aim of the framers — a thumb on the scale for the small states—nor does it achieve the aim of any truly representative democracy—giving every citizen an equal role in selecting a president.
The only system that could achieve both of those two objectives would be one that allocated electors within each state proportionally—not by congressional district, but proportionally. That result would put every state in play. Yet unlike a national popular vote, it would still create a preference for small states over larger states. The one risk that system would create is that third-party candidates could deny any candidate a majority. But states could solve that problem by limiting the allocation of electors to the top two candidates only.
My own personal preference is for a national popular vote. Yet on Friday, lawyers in Charleston will present argument challenging the winner-take-all system in South Carolina, on behalf of voters who want proportional allocation over a national popular vote.
Either position is perfectly reasonable. What isn’t reasonable is that in “a Republic,” by which our framers meant a representative democracy, we would continue to cling to a system that systematically distorts the presidential election, by denying citizens anything like an equal role in selecting their president, with absolutely no sanction from the founding design. The current system certainly does “undermine our nation as a democratic republic,” as Ocasio-Cortez put it. There is no good reason for that corruption, nor any good reason for anyone to disagree with that diagnosis.
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School and Founder of EqualCitizens.US