The end-result of an educational system that has focused on what I believe to be the wrong things for the past 50 years (really and truly, for the last 25 years or so) is a near-complete collapse of understanding of our basic system of government.
When I poll my students – graduate and under-graduate alike – about the basic provisions of our Constitution, I am shocked at what they do not know. Oh, things like the First Amendment and Free Speech are somewhat understood at a base level, although the limits imposed by government on peaceable assembly are not (it’s part of the first amendment, by the way, and seemingly misunderstood by Representative Maxine Waters who urges her supporters to “get in the face of anyone and everyone who supports President Trump”). They also seem to misunderstand the part about free exercise of religion, believing that Government can and should get involved in that exercise. Think here of laws that go against many religious beliefs.
Some of what we are talking about – strike that – ALL of what we are talking about these days is how the Constitution seems to be getting in the way of the popular will. Ignoring for the moment that “popular will” was at the core of an entire Civil War in the 1860s (southern states wanted their “will” respected and slavery protected), the idea that our Constitution is somehow working against the people is mind-boggling.
Within the past couple of weeks, we have heard from a number of congressional leaders and presidential candidates on the subject of “packing the Supreme Court” simply because recent decisions haven’t gone their way. This week, the target is the Electoral College.
Working toward the putative goal of disabling or outright eliminating the Electoral College is the action of a number of states, most recently Colorado, to sign on to something called the “National Popular Vote Interstate Compact.” So, while the Electoral College abolitionists are unlikely to get a supermajority of three-fourths of states to agree to pass a constitutional amendment, the far greater danger is that of this “compact.” It instructs its signatories to ignore their voters and grant their electoral votes to the national popular vote winner. It goes into effect once states representing 270 electoral votes have signed.
Very troubling.
Where to begin my response?
How about with the basics? (some of this comes from a WSJ Editorial on March 20, 2019).
Like the Supreme Court, the Electoral College sometimes frustrates the will of political majorities. That makes it an easy target in this populist age. But while “majority rule” has always been an appealing slogan, it’s an insufficient principle for structuring an electoral system in the U.S.
Presidential elections often do not produce popular majorities. Remember, in 2016 neither Hillary Clinton nor Donald Trump won 50%. (Trump got 46% and Clinton 48%). Even so, “plurality rules” doesn’t have the same ring to it. Our Founding Fathers knew that in the absence of something like an Electoral College, the winner’s vote share would likely be significantly smaller than is common today. Having lived through the parliamentary system of England, they wanted something that worked to “thin the herd,” if you will and bolster a two-party approach. Without an Electoral College, third-party candidates who can’t realistically win a majority in any particular state would have a greater incentive to enter the race, thus spreading all votes among more candidates. We would end up with a “winner” who might have a very small percentage of the total vote.
To wit, what if a Republican was elected with a third of the vote in an election featuring five formidable candidates? Would those who oppose the Electoral College by happy with that result? I doubt it. And such a “free-for-all plebiscite” would hurt the system’s legitimacy. Think about that for a moment.
Think about Australia with its 14 political parties, all of which have seats in the Parliament. Makes for interesting and somewhat plodding government but remember that Australia has 24 million people and an economy and military strength about 1/10th the USA. In other words, it doesn’t really matter and isn’t comparable to what we in the USA want or need (or what our allies want or need us to have).
For us, the Electoral College has the effect of narrowing the field to two serious contenders, as voters decide not to waste their vote on candidates who have no chance to win.
Back to the Founders for a moment: They designed the Electoral College to help ensure that states with diverse preferences could cohere under a single federal government. Anyone who thinks this concern is irrelevant today hasn’t been paying attention to the current polarization in American politics. The Electoral College helps check that polarization by forcing presidential candidates to campaign in competitive states across the country, instead of spending all their time trying to motivate turnout in populous partisan strongholds.
In a popular-vote contest in 2020, for example, the Democratic candidate might ignore the economically dislocated areas that Mr. Trump won and focus on urban centers along the coasts. In other words, a vast number of citizens “wouldn’t matter.” For his part, Mr. Trump might campaign more in upstate New York or Texas but ignore urban voters.
And here is an important result of the Electoral College idea, and one which is vastly misunderstood by our young people (and not just a few of our “old” people). It memorialized the responsibility of vote counting as a state-based endeavor, so that the people of each state had a far more reasonable certainty of having their cote “count.” This also contributes to political stability. Individual states tend to get the votes counted far faster.
Put in charge of vote counting, the Federal Government alone would be hard-pressed to deliver a result in the same amount of time. More than that, think here of the uncertainty that could/would result from a nationwide recount for President amid countless regional irregularities—as happened in North Carolina and Florida in 2018. This would make the hanging chad debacle of Florida 2000 (Bush v. Gore) look positively tame.
The interstate compact is likely unconstitutional. And any attempt to eliminate the Electoral College or to pack the Supreme Court, would surely result in more polarization, not less. But if any of those were successful, the result would be an injection of more, not less, corrosive uncertainty into American elections in pursuit of a hyper-populist system that goes against the structure of the Constitution that has protected liberty for 230 years.
We must be careful … very careful.
