AMERICAN DEMOCRACY IS NOT ONLY FRAGILE BUT DEEPLY FLAWED
AND REPUBLICANS WANT TO KEEP IT THAT WAY, IF NOT MAKE IT WORSE
(The Mercury News)
And I’m not only referring to the Electoral College (EC).
There’s also the Senate, whose members weren’t elected by popular vote until 1913, and which grants each state 2 senators regardless of population. This translates today into a state like California, whose 39 million people equal the combined population of 21 states, being outnumbered on the Senate floor 42-2![1]
Then there’s the House and state legislatures, alleged bastions of representative democracy, which have been corrupted in many states ((9 of the 11 worst offenders today are red states) through gerrymandering, or the manipulation of the election district boundaries for partisan gain.[2]
But it’s presidential election time, so the onus is once again on the EC, which in recent years, especially, has made a mockery of our claim to a “government of the people, by the people, for the people.”[3] And what’s most appalling, it didn’t need to come to this.
One tends to blame the evils of the EC on the framers of the Constitution. And indeed the EC system is inscribed in that all too hallowed document. Turns out, however, that the founding fathers actually envisioned a state-district rather than winner-take-all method for tabulating electoral votes.
As James Madison wrote in 1923, a district plan “was mostly, if not exclusively, in view when the Constitution was framed and adopted.”[4]
Apparently written in regret about how EC voting had come to be practiced, Madison’s concern was affirmed when the first example of the EC defying the popular will occurred one year later, in the election of John Quincy Adams, despite Andrew Jackson having received the most popular votes.
Subsequent EC aberrations occurred in 1876 (Rutherford B. Hayes over Samuel Tilden) and in 1888 (Benjamin Harrison over Grover Cleveland). But nothing untoward would occur for the next 112 years, until the new millennium, when in a return of the repressed, the EC’s disregard for democracy went on a tear: in 2000 (George W. Bush over Al Gore) and 2016 (Donald Trump over Hillary Clinton), with a near miss in 2020, when Joe Biden barely squeaked by in the EC while trouncing Trump in the popular vote by 7 million votes. [5]
To put this recent pandemic of EC debacles in starker perspective: after 3 in the previous 52 elections since 1789 (6% of the time) and none at all in the entire 20th century, 2 1/2 have occurred in the last 6 elections since 2000 (40% of the time), with another looming on the horizon.
Demonstrably, then, the threat to our imperfect union has once again reached crisis proportions, and the need for the EC to be eliminated, or at least returned to its “original intent,” has become more urgent than ever. And most Americans agree—63% in a 2024 Pew Research Center poll with similar results going back to 2000.[6]
The problem, of course, is that to rid the country of this dinosaur would require a constitutional amendment, which to pass would need: first, a 2/3 majority approval by the Senate and the House; and second, approval by 3/4 of all the state legislatures—an enormously high bar in any case and all but insurmountable in our ultra-polarized times.
Which hasn’t kept people from trying.
In 1950, the Lodge-Gossett Amendment (named for Sen. Henry Cabot Lodge, R-Massachusetts, and Rep. Ed Gossett, D-Texas) proposed a proportional system in which electoral votes in each state would be allocated according to the proportion of the popular vote received by each candidate. This effort passed resoundingly, if ironically, in the ultra-undemocratic Senate but was defeated in the House.[7]
In 1956, future VP, then-Sen. Humbert Humphrey (D-Minnesota) proposed a complex system in which two of the state’s electoral votes would go to the candidate who received a plurality of the vote, with the remainder divided in proportion to each candidate’s share of the popular vote. This again passed the Senate but lost in the House.[8]
In 1966, Delaware, joined by 11 other states, filed a complaint with the Supreme Court to declare the EC system unconstitutional, but SCOTUS refused to hear the case.[9]
And in 1969, after Richard Nixon won by only .7% in the popular vote but by 30% in the EC, Congress took another whack at EC reform and came the closest to succeeding, before or since. The Baye-Celler Amendment, sponsored by Rep. Emanuel Celler (D-New York) and Sen. Birch Baye (D-Indiana), went for the jugular: a constitutional amendment to replace the EC with a popular-vote-based system. It received bipartisan congressional support, even President Nixon came aboard, and the prospects for gaining approval from the 38 states needed for passage seemed promising. Until a filibuster—another largely undemocratic practice, Mr. Smith Goes to Washington notwithstanding—led by Southern Dixiecrat senators and Republican senators from small states (the same problem we face today), killed it.[10]
Sen. Jefferson Smith (Jimmy Stewart) facing defeat in his lone-wolf filibuster in “Mr. Smith Goes to Washington” (Columbia Pictures)
But the struggle continued.
In 1977, the executive branch tried its hand. Prompted this time, a la Biden v. Trump, by a potential close call in the EC despite Jimmy Carter’s wide margin in the popular vote, Carter sent a reform proposal to Congress, which another filibuster brought to naught. [11]
Enthusiasm for reform sagged during the Reagan administrations, and no more close calls or EC aberrations ensued until 2000, which no doubt motivated the latest reform effort.
The National Popular Vote Interstate Compact (NPVIC, aka National Popular Vote) is a states-driven movement formed in 2006, which seeks not to abolish the EC outright but to circumvent it. This would be achieved through an “agreement” among states who signed on to the compact, to award all their electoral votes to the presidential ticket that won the national popular vote, regardless of whether it won the popular vote in the state. Once the combined electoral vote total of the signatories reached the 50%-plus-1 threshold for election (currently 270 votes), victory for democracy—at least in the presidential election—would be achieved.[12]
(floridiansfornpv.com)
Still no easy task, given the large number of red states. As of April 2024, however, the NPVIC had been adopted by 17 blue states and DC, with 209 EC votes among them. While this is still 61 votes shy of the magic number, 50 votes are pending from several red and swing states, which if they come aboard would nudge the figure up to 259. And if one other large swing state like Pennsylvania (with 19 votes) or a cluster of smaller ones could be convinced to join the 65% of Americans who apparently support the National Popular Vote proposal—BINGO![13]
(nationalpopularvote.com/state-status)
But not so fast.
Some legal scholars believe the NPVIC would still have to pass congressional and, if necessary, constitutional muster—a big “if” given congressional unreliability and the Supreme Court’s conservative majority. While others contend that the compact’s prospects have been strengthened by SCOTUS’s unanimous decision in Chiafalo v. Washington (2020), which “upheld the power of states to enforce electors’ pledges.”[14]
One thing that’s crystal clear from the above gloss of EC reform history is who is most responsible for this cancer on the body politic still not having been irradiated or surgically removed: the Republican Party!
And as if this recalcitrance wasn’t bad enough, just 7 weeks before the election they did their darndest to make matters even worse.
On September 17th, no doubt sent by Trump’s campaign, lap-dog Lindsey Graham—who’d already been recommended for indictment by a Georgia grand jury for interference in the 2016 election—met with Nebraska Gov. George Pillen and a dozen state senators. His mission: a last-ditch effort to get the legislature, with Pillen’s backing, to change their electoral system to Trump’s benefit.[15]
The method to Graham’s madness went like this: Nebraska, starting in 1992, along with Maine in 1972, had changed their winner-take-all system, in a variation on Humphrey’s 1956 plan: giving 2 electoral votes to the state’s winner of the popular vote, and the remainder to whoever won the most votes in their congressional districts (3 in Nebraska and 2 in Maine). Maine in 2024 apparently is a lost cause for the GOP, but since one Nebraska district seemed likely to go to Harris, eliminating that vote by going winner-take-all would give Trump one more vote.
Bizarre, underhanded, and pathetic, to be sure. But the real travesty lies with the EC. For by Graham and company’s byzantine calculations, if Harris were to win swing states Wisconsin, Michigan, and Pennsylvania but lose Arizona and Nevada, that one extra vote for Trump in Nebraska would put him over the top![16]
So far, Graham’s Machiavellian mission has come up short.
But no matter. Because Harris-Walz’s mission is to win not just one more electoral vote but more than enough to keep an American democracy already on life support from breathing its last.
* * * * * * * * * *
NOTES
[1] “US States: Ranked by Population 2024,” https://worldpopulationreview.com/states.
[2] “Map Shows Most Gerrymandered States,” June 20, 2024, https://www.newsweek.com/map-shows-most-gerrymandered-states-wisconsin-1915098.
[3] Abraham Lincoln, “The Gettysburg Address,” delivered November 19, 1863.
[4] Estes Kefauver, “The Electoral College: Old Reforms Take on a New Look,” Law and Contemporary Problems, Vol. 27, No. 2, The Electoral Process 1 (Spring, 1962), 188-212, https:// www.jstor.org/stable/1190543.
[5] Dave Roos, “5 Presidents Who Lost the Popular Election but Won the Election,” July 12, 2024, https://www.history.com/news/presidents-electoral-college-popular-vote.
[6] Jocelyn Kiley, “A majority of Americans continue to favor moving away from Electoral College,” https://www.pewresearch.org/short-reads/2024/09/25/majority-of-americans-continue-to-favor-moving-away-from-electoral-college.
[7] R. C. Silva, “The Lodge-Gossett Amendment: A Critical Analysis,” American Political Science, 1 March 1950, https://www.semanticscholar.org/paper/The-Lodge-Gossett-Resolution%3A-A-Critical-Analysis-Silva.
[8] Ralph M. Goldman, “Hubert Humphrey’s S. J. 152: A New Proposal for Electoral College Reform,” Midwest Journal of Political Science 2 (1), 89-96, https://search.worldcat.org/search?q=n2:0026-3397.
[9] “Delaware vs. New York (1966),” https://www.scribd.com/document/331930037/Delaware-v-New-York-1966; Christopher Duquette and David Schultz, “One Person, One Vote...,” Tennessee Journal of Law and Policy, Volume 2 / Issue 3 / Article 4, “https://trace.tennessee.edu/cgi/viewcontent.cgi?article=1042&context=tjlp.
[10] Adrienne Crezo, “The First (and Last) Serious Challenge to the Electoral College System,” June 19, 2020, https://www.mentalfloss.com/article/13012/first-and-last-serious-challenge-electoral-college-system.
[11] “Minorities Opposing Senate Move for Abolition of Electoral College,” New York Times, July 4, 1979, A-9; R. Koza, et al., “Every Vote Equal” (New York: National Popular Vote Press, 2006), xix.
[12] “The Agreement Among the States to Elect the President by National Popular Vote,” https://www.nationalpopularvote.com/sites/default/files/eve-4th-ed-ch6-web-v1.pdf#page=5.
[13] “National Popular Vote,” https://www.nationalpopularvote.com, retrieved September 26, 2024.
[14] Barry Fadeem, “Supreme Court’s ‘faithless electors’ decision validates case for the National Popular Vote Interstate Compact,” July 14, 2020, https://www.brookings.edu/articles/supreme-courts-faithless-electors-decision-validates-case-for-the-national-popular-vote-interstate-compact.
[15] Dennis Aftergut, “Opinion: Why Lindsey Graham wasn’t indicted,” https://www.cnn.com/2023/09/11/opinions/lindsey-graham-georgia-special-grand-jury-report-aftergut/index.htm; Avery Lotz, “Graham met Nebraska leaders in push to get Trump one more electoral vote,” https://www.axios.com/2024/09/19/lindsey-graham-electoral-vote-change-nebraska.
[16] Ibid.