https://www.nytimes.com/2024/09/23/opinion/electoral-college-presidential-election.html
A Leading Law Scholar Fears We’re Lurching Toward Secession
by Michelle Goldberg
September 23, 2024
New York Times
Credit: Samuel Corum/Getty Images
Here’s how rickety our constitutional system has become: The fate of the 2024 election could hang on the integrity of a single Republican state senator in Nebraska.
To understand why requires getting a bit deep in the Electoral College weeds. Almost all states use a winner-take-all system to apportion their presidential electors, but Nebraska and Maine award some electors by congressional district. In 2020, Joe Biden won one of Nebraska’s five electoral votes, and Donald Trump won one elector from rural Maine. This year Kamala Harris’s clearest path to victory is to take the so-called blue wall states of Pennsylvania, Michigan and Wisconsin, plus one electoral vote in Nebraska.
One reason that both states have resisted partisan pressure to switch to winner-take-all is the assumption that if one did so, the other would as well, balancing out any Electoral College effect. But this year, Republicans waited until it was too late for Maine to change its rules before starting a push to change them in Nebraska. If they succeeded and Harris held the blue wall but lost the other swing states, there would be a tie in the Electoral College. For the first time in 200 years, the election would go to the House, where each state delegation would get one vote and Trump would almost certainly be installed as president.
So far, one man, State Senator Mike McDonnell, who defected from the Democratic Party this spring, is standing in the Republican Party’s way. We should all be grateful for his courage. But the pressure on him from his new party will be intense, and he can still change his mind in the coming weeks.
Whether or not McDonnell remains steadfast, this is a preposterous way to run a purportedly democratic superpower. The Electoral College — created in part, as the scholar Akhil Reed Amar has shown, to protect slavery — has already given us two presidents in the 21st century who lost the popular vote, and it continues to warp our politics. It is one reason Erwin Chemerinsky, the dean of the U.C. Berkeley School of Law and an eminent legal scholar, has come to despair of the Constitution he’s devoted much of his life to. “I believe that if the problems with the Constitution are not fixed — and if the country stays on its current path — we are heading to serious efforts at secession,” he writes in his bracing new book, “No Democracy Lasts Forever: How the Constitution Threatens the United States.”
Chemerinsky’s description of the way our Constitution thwarts the popular will — including through the Electoral College, the growing small-state advantage in the Senate and the rogue Supreme Court — will be familiar to readers of books like last year’s “Tyranny of the Minority” by Steven Levitsky and Daniel Ziblatt. The surprising part of his argument is his call for a new constitutional convention, which can be triggered, under the Constitution’s Article V, by a vote of two-thirds of the states.
Many on the right have long dreamed of an Article V convention, hoping to pass things like a balanced-budget amendment. Chemerinsky wants to use the process to advance changes sought by progressives. It is imperative, he writes, “that Americans begin to think of drafting a new Constitution to create a more effective, more democratic government.” Without radical reforms, he fears, the country could come undone.
Chemerinsky arrived at his somewhat despairing view of our predicament with reluctance. “What makes it painful is the underlying pessimism or the underlying sense of crisis,” he told me. “I’m by nature an optimist.”
That optimism seems to drive his belief that a country as polarized as ours is still capable of sweeping positive change. “I want to believe that if a group of men and women came together and had to draft a Constitution that they knew would have to be ratified by the country, they would come up with a better document than we have now,” said Chemerinsky. “And if they failed, if it went off the rails, it wouldn’t get approved.”
I lack his faith. My fear is that while our Constitution has become a kind of cage, it’s also the only thing holding our country’s hostile factions together. The paradox of our founding document is that it’s both an accelerant to authoritarianism and a bulwark against it. The Constitution is the reason that Trump could again become president in defiance of the wishes of the majority. But if that happens, the Constitution would be one of the few tools we have to restrain him. Given our furious divisions, I’m skeptical that we could agree on a new and better one.
But I agree with Chemerinsky that because of the deep structural flaws in our Constitution, the union is more fragile than many assume. And like him, I can easily imagine America getting to a place where the idea of breaking it up no longer seems unthinkable.
America could, of course, get lucky. For this election, McDonnell could continue to resist his party’s entreaties, or Harris could win enough Electoral College votes to make any chicanery in Nebraska moot. Eventually, Congress could enact reforms that lessen some of our system’s antidemocratic distortions. One law Chemerinsky suggests would mandate that all states allocate their electors proportionally, so that all voters, regardless of their states’ partisan leanings, have a role in choosing the president. And in time, America’s demography and its political coalitions could change in ways that might help our politics come unstuck. If Texas were to become a blue state, for example, conservatives might suddenly find themselves open to Electoral College reform.
But right now, we’re staring down yet another election in which Trump could win after losing the popular vote. Chances are he’ll have a Republican-controlled Senate, even if most people who go to the polls vote for Democrats. He’ll operate under the protection of a widely distrusted Supreme Court — the only one in any major democracy where justices have lifetime tenure — that has granted presidents broad impunity for crimes they commit in office. “The mistakes made in 1787 are haunting us in the 21st century,” writes Chemerinsky. The question is whether America is capable of fixing them before they destroy us.
Read more from Michelle Goldberg:
What Trump Did to the G.O.P., Musk Did to Twitter
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Opinion | Michelle Goldberg and Rafal Milach
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ABOUT THE AUTHOR:
Michelle Goldberg has been an Opinion columnist since 2017. She is the author of several books about politics, religion and women’s rights, and was part of a team that won a Pulitzer Prize for public service in 2018 for reporting on workplace sexual harassment.
"What's Past is Prologue..."
Southerner Thomas Jefferson, for example, won the election of 1800-01 against Northerner John Adams in a race where the slavery-skew of the electoral college was the decisive margin of victory: without the extra electoral college votes generated by slavery, the mostly southern states that supported Jefferson would not have sufficed to give him a majority. As pointed observers remarked at the time, Thomas Jefferson metaphorically rode into the executive mansion on the backs of slaves..."
https://time.com/4558510/electoral-college-history-slavery/
The Troubling Reason the Electoral College Exists
by Akhil Reed Amar
November 8, 2016
TIME
As Americans await the quadrennial running of the presidential obstacle course now known as the Electoral College, it’s worth remembering why we have this odd political contraption in the first place. After all, state governors in all 50 states are elected by popular vote; why not do the same for the governor of all states, a.k.a. the president? The quirks of the Electoral College system were exposed in 2016 when Donald Trump secured the presidency with an Electoral College majority, even as Hillary Clinton took a narrow lead in the popular vote.
Some claim that the founding fathers chose the Electoral College over direct election in order to balance the interests of high-population and low-population states. But the deepest political divisions in America have always run not between big and small states, but between the north and the south, and between the coasts and the interior.
One Founding-era argument for the Electoral College stemmed from the fact that ordinary Americans across a vast continent would lack sufficient information to choose directly and intelligently among leading presidential candidates.
This objection rang true in the 1780s, when life was far more local. But the early emergence of national presidential parties rendered the objection obsolete by linking presidential candidates to slates of local candidates and national platforms, which explained to voters who stood for what.
Although the Philadelphia framers did not anticipate the rise of a system of national presidential parties, the 12th Amendment—proposed in 1803 and ratified a year later— was framed with such a party system in mind, in the aftermath of the election of 1800-01. In that election, two rudimentary presidential parties—Federalists led by John Adams and Republicans led by Thomas Jefferson—took shape and squared off. Jefferson ultimately prevailed, but only after an extended crisis triggered by several glitches in the Framers’ electoral machinery. In particular, Republican electors had no formal way to designate that they wanted Jefferson for president and Aaron Burr for vice president rather than vice versa. Some politicians then tried to exploit the resulting confusion.
Enter the 12th Amendment, which allowed each party to designate one candidate for president and a separate candidate for vice president. The amendment’s modifications of the electoral process transformed the Framers’ framework, enabling future presidential elections to be openly populist and partisan affairs featuring two competing tickets. It is the 12th Amendment’s Electoral College system, not the Philadelphia Framers’, that remains in place today. If the general citizenry’s lack of knowledge had been the real reason for the Electoral College, this problem was largely solved by 1800. So why wasn’t the entire Electoral College contraption scrapped at that point?
Standard civics-class accounts of the Electoral College rarely mention the real demon dooming direct national election in 1787 and 1803: slavery.
At the Philadelphia convention, the visionary Pennsylvanian James Wilson proposed direct national election of the president. But the savvy Virginian James Madison responded that such a system would prove unacceptable to the South: “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” In other words, in a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College—a prototype of which Madison proposed in this same speech—instead let each southern state count its slaves, albeit with a two-fifths discount, in computing its share of the overall count.
Virginia emerged as the big winner—the California of the Founding era—with 12 out of a total of 91 electoral votes allocated by the Philadelphia Constitution, more than a quarter of the 46 needed to win an election in the first round. After the 1800 census, Wilson’s free state of Pennsylvania had 10% more free persons than Virginia, but got 20% fewer electoral votes. Perversely, the more slaves Virginia (or any other slave state) bought or bred, the more electoral votes it would receive. Were a slave state to free any blacks who then moved North, the state could actually lose electoral votes.
If the system’s pro-slavery tilt was not overwhelmingly obvious when the Constitution was ratified, it quickly became so. For 32 of the Constitution’s first 36 years, a white slaveholding Virginian occupied the presidency.
Southerner Thomas Jefferson, for example, won the election of 1800-01 against Northerner John Adams in a race where the slavery-skew of the electoral college was the decisive margin of victory: without the extra electoral college votes generated by slavery, the mostly southern states that supported Jefferson would not have sufficed to give him a majority. As pointed observers remarked at the time, Thomas Jefferson metaphorically rode into the executive mansion on the backs of slaves.
The 1796 contest between Adams and Jefferson had featured an even sharper division between northern states and southern states. Thus, at the time the Twelfth Amendment tinkered with the Electoral College system rather than tossing it, the system’s pro-slavery bias was hardly a secret. Indeed, in the floor debate over the amendment in late 1803, Massachusetts Congressman Samuel Thatcher complained that “The representation of slaves adds thirteen members to this House in the present Congress, and eighteen Electors of President and Vice President at the next election.” But Thatcher’s complaint went unredressed. Once again, the North caved to the South by refusing to insist on direct national election.
In light of this more complete (if less flattering) account of the electoral college in the late 18th and early 19th century, Americans should ask themselves whether we want to maintain this odd—dare I say peculiar?—institution in the 21st century.
ABOUT THE AUTHOR:
Akhil Reed Amar teaches constitutional law at Yale University. This essay borrows from his recently published book, The Constitution Today.
https://www.brennancenter.org/our-work/analysis-opinion/electoral-colleges-racist-origins
Analysis
The Electoral College’s Racist Origins
More than two centuries after it was designed to empower southern white voters, the system continues to do just that.
by Wilfred U. Codrington III
April 1, 2020
ASSOCIATED PRESS
This piece was originally published by the Atlantic.
Associated Press
Is a color-blind political system possible under our Constitution? If it is, the Supreme Court’s evisceration of the Voting Rights Act in 2013 did little to help matters. While black people in America today are not experiencing 1950s levels of voter suppression, efforts to keep them and other citizens from participating in elections began within 24 hours of the Shelby County v. Holder ruling and have only increased since then.
In Shelby County’s oral argument, Justice Antonin Scalia cautioned, “Whenever a society adopts racial entitlements, it is very difficult to get them out through the normal political processes.” Ironically enough, there is some truth to an otherwise frighteningly numb claim. American elections have an acute history of racial entitlements—only they don’t privilege black Americans.
For centuries, white votes have gotten undue weight, as a result of innovations such as poll taxes and voter-ID laws and outright violence to discourage racial minorities from voting. (The point was obvious to anyone paying attention: As William F. Buckley argued in his essay “Why the South Must Prevail,” white Americans are “entitled to take such measures as are necessary to prevail, politically and culturally,” anywhere they are outnumbered because they are part of “the advanced race.”) But America’s institutions boosted white political power in less obvious ways, too, and the nation’s oldest structural racial entitlement program is one of its most consequential: the Electoral College.
Commentators today tend to downplay the extent to which race and slavery contributed to the Framers’ creation of the Electoral College, in effect whitewashing history: Of the considerations that factored into the Framers’ calculus, race and slavery were perhaps the foremost.
Of course, the Framers had a number of other reasons to engineer the Electoral College. Fearful that the president might fall victim to a host of civic vices—that he could become susceptible to corruption or cronyism, sow disunity, or exercise overreach—the men sought to constrain executive power consistent with constitutional principles such as federalism and checks and balances. The delegates to the Philadelphia convention had scant conception of the American presidency—the duties, powers, and limits of the office. But they did have a handful of ideas about the method for selecting the chief executive. When the idea of a popular vote was raised, they griped openly that it could result in too much democracy. With few objections, they quickly dispensed with the notion that the people might choose their leader.
But delegates from the slaveholding South had another rationale for opposing the direct election method, and they had no qualms about articulating it: Doing so would be to their disadvantage. Even James Madison, who professed a theoretical commitment to popular democracy, succumbed to the realities of the situation. The future president acknowledged that “the people at large was in his opinion the fittest” to select the chief executive. And yet, in the same breath, he captured the sentiment of the South in the most “diplomatic” terms:
“There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections.”
Behind Madison’s statement were the stark facts: The populations in the North and South were approximately equal, but roughly one-third of those living in the South were held in bondage. Because of its considerable, nonvoting slave population, that region would have less clout under a popular-vote system. The ultimate solution was an indirect method of choosing the president, one that could leverage the three-fifths compromise, the Faustian bargain they’d already made to determine how congressional seats would be apportioned. With about 93 percent of the country’s slaves toiling in just five southern states, that region was the undoubted beneficiary of the compromise, increasing the size of the South’s congressional delegation by 42 percent. When the time came to agree on a system for choosing the president, it was all too easy for the delegates to resort to the three-fifths compromise as the foundation. The peculiar system that emerged was the Electoral College.
Right from the get-go, the Electoral College has produced no shortage of lessons about the impact of racial entitlement in selecting the president. History buffs and Hamilton fans are aware that in its first major failure, the Electoral College produced a tie between Thomas Jefferson and his putative running mate, Aaron Burr. What’s less known about the election of 1800 is the way the Electoral College succeeded, which is to say that it operated as one might have expected, based on its embrace of the three-fifths compromise. The South’s baked-in advantages—the bonus electoral votes it received for maintaining slaves, all while not allowing those slaves to vote—made the difference in the election outcome. It gave the slaveholder Jefferson an edge over his opponent, the incumbent president and abolitionist John Adams. To quote Yale Law’s Akhil Reed Amar, the third president “metaphorically rode into the executive mansion on the backs of slaves.” That election continued an almost uninterrupted trend of southern slaveholders and their doughfaced sympathizers winning the White House that lasted until Abraham Lincoln’s victory in 1860.
In 1803, the Twelfth Amendment modified the Electoral College to prevent another Jefferson-Burr–type debacle. Six decades later, the Thirteenth Amendment outlawed slavery, thus ridding the South of its windfall electors. Nevertheless, the shoddy system continued to cleave the American democratic ideal along racial lines. In the 1876 presidential election, the Democrat Samuel Tilden won the popular vote, but some electoral votes were in dispute, including those in—wait for it—Florida. An ad hoc commission of lawmakers and Supreme Court justices was empaneled to resolve the matter. Ultimately, they awarded the contested electoral votes to Republican Rutherford B. Hayes, who had lost the popular vote. As a part of the agreement, known as the Compromise of 1877, the federal government removed the troops that were stationed in the South after the Civil War to maintain order and protect black voters.
The deal at once marked the end of the brief Reconstruction era, the redemption of the old South, and the birth of the Jim Crow regime. The decision to remove soldiers from the South led to the restoration of white supremacy in voting through the systematic disenfranchisement of black people, virtually accomplishing over the next eight decades what slavery had accomplished in the country’s first eight decades. And so the Electoral College’s misfire in 1876 helped ensure that Reconstruction would not remove the original stain of slavery so much as smear it onto the other parts of the Constitution’s fabric, and countenance the racialized patchwork democracy that endured until the passage of the Voting Rights Act of 1965.
What’s clear is that, more than two centuries after it was designed to empower southern whites, the Electoral College continues to do just that. The current system has a distinct, adverse impact on black voters, diluting their political power. Because the concentration of black people is highest in the South, their preferred presidential candidate is virtually assured to lose their home states’ electoral votes. Despite black voting patterns to the contrary, five of the six states whose populations are 25 percent or more black have been reliably red in recent presidential elections. Three of those states have not voted for a Democrat in more than four decades. Under the Electoral College, black votes are submerged. It’s the precise reason for the success of the southern strategy. It’s precisely how, as Buckley might say, the South has prevailed.
Among the Electoral College’s supporters, the favorite rationalization is that without the advantage, politicians might disregard a large swath of the country’s voters, particularly those in small or geographically inconvenient states. Even if the claim were true, it’s hardly conceivable that switching to a popular-vote system would lead candidates to ignore more voters than they do under the current one. Three-quarters of Americans live in states where most of the major parties’ presidential candidates do not campaign.
More important, this “voters will be ignored” rationale is morally indefensible. Awarding a numerical few voting “enhancements” to decide for the many amounts to a tyranny of the minority. Under any other circumstances, we would call an electoral system that weights some votes more than others a farce—which the Supreme Court, more or less, did in a series of landmark cases. Can you imagine a world in which the votes of black people were weighted more heavily because presidential candidates would otherwise ignore them, or, for that matter, any other reason? No. That would be a racial entitlement. What’s easier to imagine is the racial burdens the Electoral College continues to wreak on them.
Critics of the Electoral College are right to denounce it for handing victory to the loser of the popular vote twice in the past two decades. They are also correct to point out that it distorts our politics, including by encouraging presidential campaigns to concentrate their efforts in a few states that are not representative of the country at large. But the disempowerment of black voters needs to be added to that list of concerns, because it is core to what the Electoral College is and what it always has been.
The race-consciousness establishment—and retention—of the Electoral College has supported an entitlement program that our 21st-century democracy cannot justify. If people truly want ours to be a race-blind politics, they can start by plucking that strange, low-hanging fruit from the Constitution.
https://truthout.org/articles/slavery-democracy-and-the-racialized-roots-of-the-electoral-college/
Slavery, Democracy and the Racialized Roots of the Electoral College
This election should challenge us to ask some inconvenient questions about the racialized nature of our political institutions.
Though Hillary Clinton defeated Donald Trump in the national popular vote, Mr. Trump is now President-elect based on the indirect representational nature of the Electoral College. There is nothing particularly novel about this latest (un)democratic contradiction — it happened in 1876, 1888, and 2000 — except that it opens up a critical space for examining the racialized genesis of the Electoral College itself.
In the aftermath of any presidential election, statisticians aim to index the demographic features of the electorate. We have learned, for instance, that Hillary Clinton won 88, 65, and 65 percent of the Black, Latino, and Asian-vote, respectively, and that Donald Trump captured 58 percent of the white vote. We also know that the white vote — especially unprecedented support from white women — put Trump over the top. While these isolated figures are certainly important for diagnosing electoral trends and prognosticating future turnout, they tend to prevent us from considering the historical roots of so-called colorblind instruments of US democracy like the Electoral College.
Electoral College results, 2016. (Source: Google.)
Perhaps unsurprisingly, the provenance of the Electoral College, to paraphrase Ronald Takaki, is grounded in questions of racialized ‘insiderism’ and ‘outsiderism.’ To this end, the Electoral College is responsible for the fact that four of the first five US presidents were white, slave-holding men from Virginia. The “Virginia” variable is key here, as Virginia held the largest population of enslaved black men, women, and children from the inception of the “peculiar institution” until the passage of the Thirteenth Amendment.
In 1787, white men of status met in Philadelphia to draft the Constitution. Questions of elections, taxation, and governance, among others, were debated vigorously. One of the most contentious themes considered over the course of the four-month convention was by what process to elect a president.
Two months into the meeting, Pennsylvania lawyer James Wilson proposed direct election of the president. Some delegates lamented that an “uneducated” populace would be incapable of the sort of self-governance required to ensure a salutary direct democracy. Such an elitist concern, however, was not what occupied the minds of most delegates, and especially those from the South. James Madison — a slaveholder from Virginia — worried that such a system would compromise the political influence of the slaveholding South, a region of the country that on a eligible voter population-basis would nearly always lose to the North in a direct election system. Madison opined: “There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors [through the Electoral College] obviated this difficulty and seemed on the whole to be liable to fewest objections.”
In a direct election system, the North would have outnumbered the South (which had a large population but far fewer eligible voters), whose roughly 550,000 enslaved black people were disenfranchised. Delegates from the South generally supported Madison’s idea of the Electoral College over a direct election system because it was based solely on population volume, not citizenship status or enfranchisement. In conjunction, and at Madison’s urging, the convention agreed to count each enslaved black person as three-fifths of a citizen for the purpose of calculating each state’s representation in the Electoral College and in the allotment of congressional seats.
Colonial Virginia won big under the Electoral College system: the state occupied 12 of the 46 electoral votes (26 percent) needed to win an election in the first round. (As a reference point, such disproportionate overrepresentation would be tantamount to present-day California enjoying 70 electoral votes.) Whereas the Electoral College artificially enhanced the political influence of the South, it deflated the political influence of the North. After the 1800 census, for instance, Pennsylvania had 10 percent more free persons than Virginia, but had 20 percent fewer electoral votes. According to legal historian Akhil Reed Amar, “Perversely, the more slaves Virginia (or any other slave state) bought or bred, the more electoral votes it would receive. Were a slave state to free any blacks who then moved North, the state could actually lose electoral votes.” Simply stated, the Electoral College incentivized the institution of slavery; it was created to protect and propagate the enslavement of black people. The Electoral College operationalized the 3/5ths compromise and helped to secure, extend, and enhance the political power of the white slaveholding class whose epicenter at the end of the eighteenth century was Virginia.
The contentious aftermath of our most recent presidential election should challenge us to ask some inconvenient questions about the racialized nature of our political institutions and to rethink the propriety of the Electoral College, a retrograde political apparatus whose origins in slavery and anti-black racism challenge the radical proposition of “one person, one vote.”