Defending the Electoral College since 2009
Congress has considered more constitutional amendments to change or abolish the Electoral College than on any other subject. The latest, House Joint Resolution 14, was introduced in early 2021.
Like most legislation, it starts with a collection of findings, such as “Whereas the electoral college is premised on an antiquated theory that citizens will have a better chance of knowing about electors from their home States than about Presidential candidates from out of State.”
Kudos to the drafter of that line for getting it partly right. This was one of many, many reasons the American Founders rejected a national popular vote for president. But it was far from the only one – the divide between big states and small states was a much bigger issue leading to the creation of the Electoral College. So too was the fact that the main debate was between having Congress appoint the president (or presidents – the New Jersey Plan proposed having an executive branch led by multiple persons, similar to how Switzerland operates today) and having electors choose.
H.J.R. 14 makes no mention of these other reasons why the Electoral College was created (ultimately, I believe the main reason was concern that the executive branch be sufficiently independent of Congress to serve as a check on its power). Perhaps the drafters of H.J.R. 14 avoid all these other reasons because it would force the amendment’s backers to address thornier issues, such as the nature of a federal republic and the importance of checks and balances. It’s easier to stick with the one reason that seems a bit out of date in the modern world.
Aside from noting we live today in an era of mass communications, the other justification offered can be summed up as “we’ve changed the Constitution before, we can change it again!” which is perhaps a mirror image of Hoover’s defense of Delta Tau Chi based on its “long tradition of existence” (that clip from Animal House may not be suitable for work…).
For example, there’s a pretty good quote included here from Thomas Jefferson that “institutions must advance also to keep pace with the times,” which is true enough, but not an argument that this particular change ought to be made. Noting that direct election of U.S. senators was adopted over a century ago also isn’t an argument for direct election of the president.
After H.J.R. 14’s findings is the actual proposed amendment, which is more or less what one would expect, with one interesting part and one part that’s pretty alarming.
In the interesting category, the amendment eliminates the requirement that the president and vice president be from different states (“No elector shall be prohibited from casting a vote for a candidate for President or Vice President because either candidate, or both, are inhabitants of the same State as the elector,” where “elector” here simply means a voter). Voters pining for an Andrew Cuomo/Bill De Blasio or Ted Cruz/Louie Gohmert ticket would be in luck.
On the alarming side, it looks like Congress would be able to exclude candidates it doesn’t like from the ballot (Section 5, “…entitlement to inclusion on the ballot shall be determined by Congress”). So in addition to the well-established limitations currently in the Constitution (natural born citizen, age 35, and a resident of the U.S. for 14 years), the legislative branch could add requirements to block political rivals.
This sort of mischief is hardly theoretical. California passed legislation in 2019 that would have prohibited presidential candidates from appearing on its ballot if they had not released their tax returns, a clear attempt to prevent President Trump from appearing on the ballot (the law was struck down later that year). It doesn’t take a lot of imagination to see Congress piling up the requirements – forcing them to release their birth certificate or college transcripts, or barring them from the ballot if they are being investigated by the FBI or have ever filed for a business or personal bankruptcy, for example.
Most Electoral College opponents today are focused on the National Popular Vote interstate compact. In theory, a minority of states could implement the compact and effectively abolish the constitutional process without amending the Constitution. Easier politics, however, is in this case worse policy.
Those who want the Electoral College abolished, if they don’t mind the political hijinks written into the amendment, will probably find H.J.R. 14 preferable to the NPV compact. As destructive as it would be, the constitutional amendment would at least avoid the chaos that would come from NPV’s attempt to cobble together a national vote total in each compact state and hoping non-compact states will cooperate.
Fortunately, H.J.R. 14 has little chance of passing – it would require two-thirds of each chamber of Congress to agree to send it to the states for ratification, where 38 of the 50 states would have to do so within seven years. To put it mildly, that seems unlikely.
Time is running out
There is a real, immediate threat to the constitutional way we elect our president. National Popular Vote is 72% of the way to implementing their dangerous plan.