www.nytimes.com /2020/03/17/books/review/let-the-people-pick-the-president-jesse-wegman.html

Why We Should Abolish the Electoral College

Josh Chafetz
6-7 minutes

Book Review|Why We Should Abolish the Electoral College


Credit...Jesse Reed

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The Case for Abolishing the Electoral College
By Jesse Wegman

It’s hard to imagine a political institution less suited to a 21st-century liberal democracy than the Electoral College. It arose from a convoluted compromise hammered out late in the Constitutional Convention, and the rise of political parties in the late 18th century and the spread of democratic ideals in the early 19th quickly undermined its rationales. If it didn’t exist, no one today would consider creating it.

But the Electoral College is worse than merely useless. Its primary function is to malapportion political power, and it does so — indeed, has always done so — with strikingly awful consequences. A state is entitled to a number of electors equal to its number of senators and representatives. Before the Civil War, the combination of the Electoral College and the Three-Fifths Clause, counting a slave as three-fifths of a person, gave the Slave Power outsize control in electing the president, with the consequence that antebellum presidents were almost always either slaveholders or at least friendly to their interests (the major exceptions were both named Adams). After the war, every person counted as a full person for apportionment purposes — but with the collapse of Reconstruction and the violent disfranchisement of African-Americans throughout the South, that increase in representation once again redounded only to the benefit of white male power-holders, a situation that was not largely rectified until the Voting Rights Act of 1965.

Because a state’s number of electors is based on total population, not actual voters, it gives the states no incentive to enfranchise new groups of people, or to make voting easier for those eligible. And because states want to maximize their influence in selecting the president, they also have a strong incentive to use a winner-take-all approach to awarding electors, which all but two states currently do. The result — as we’ve now seen twice in the last two decades — is that a popular vote loser can be an Electoral College winner.

In a liberal democracy, not everything need be decided by majority vote. But once something is put to a vote, it is hard to understand why the side getting fewer votes should win. And Americans have long understood themselves to be voting for their president, not for presidential electors. It is long past time to get rid of the Electoral College.

This is not a new claim: People have been arguing against the Electoral College from the beginning. But no one, at least in recent years, has laid out the case as comprehensively and as readably as Jesse Wegman does in “Let the People Pick the President.” Wegman, a member of the New York Times editorial board, surveys the Electoral College’s history from its drafting through the state ratification debates — and, importantly, well beyond. He discusses the crucial elections of 1796 and 1800, which made pellucid that political parties were here to stay and that their interaction with the Electoral College could produce some problematic results (like President John Adams teamed with Vice President Thomas Jefferson, his bitter rival). These elections provided the impetus for the only constitutional amendment to the Electoral College scheme to date: the 12th Amendment, ratified in 1804 to ensure that the president and vice president would be from the same party. Wegman also covers Reconstruction and its collapse; the one-person-one-vote revolution of the 1960s; and the drive for a constitutional amendment providing for a national popular vote for the presidency in 1969 and 1970. All of these treatments are detailed, but eminently readable.

The last few chapters debunk popular myths about the Electoral College and show how a national popular vote might work. They also outline Wegman’s preferred alternative: the National Popular Vote Compact.

This is where the rubber hits the road, and it’s also the only portion of Wegman’s book that’s not fully convincing. The compact, in brief, provides that the states that join it will award all their electoral votes to the national popular vote winner. Crucially, it does not go into effect until enough states have joined to constitute an Electoral College majority. It’s an elegant way of awarding the presidency to the popular vote winner without a constitutional amendment. States worth 196 electoral votes have already signed on; another 74 electoral votes are required before it can go into effect.

But Wegman leaves largely unaddressed how the compact interacts with the patchwork of state laws governing elections. How do we count the popular votes in Maine, given that state’s adoption of ranked choice voting? What would happen if one state lowered the voting age to 16? What if there is a dispute as to who actually won the nationwide popular vote? These problems might well be solvable within the compact framework — but they require more thinking through now, before a presidential election turns on them.

One thing is clear, though: The Electoral College as we have it now should go.

Josh Chafetz is a law professor at Cornell, a visiting law professor at the University of Texas and the author, most recently, of “Congress’s Constitution: Legislative Authority and the Separation of Powers.”

The Case for Abolishing the Electoral College
By Jesse Wegman
296 pp. St. Martin’s Press. $27.99.

A version of this article appears in print on , Page 13 of the Sunday Book Review with the headline: Illiberal Democracy. Order Reprints | Today’s Paper | Subscribe