The current system of electing an American president in which the Electoral College awards all delegates from each state to one candidate that wins the popular vote in that state distorts our politics, encourages campaigns to focus on a few unrepresentative states, and can defy the popular will of the nation to the interests of a few smaller states. The Electoral College determines who becomes President of the United States and does not function as a democratic institution. It’s time either to eliminate it entirely or to mitigate its deleterious effects on our democracy.
Two of the last six presidential elections were won in the Electoral College by candidates who did not win the popular vote (George W. Bush in 2000 and Donald Trump in 2016). If this were to occur in any other nation, Americans would rise up and criticize those nations out of democratic outrage. But, we tolerate this assault on our own democracy here.
Constitutional Law Professor Erwin Chemerinsky explained the original intent of the Electoral College in his book “We the People: A Progressive Reading of the Constitution for the Twenty-First Century” (New York: MacMillan Publishers, 2018):
“The Electoral College was … very much a product of the compromises concerning slavery that were at the core of the Constitution’s drafting and ratification…As Paul Finkelman states, ‘In order to guarantee that the nonvoting slaves could nevertheless influence the presidential election, Madison favored the creation of the Electoral College.’ Hugh Williamson, a delegate to the Constitutional Convention from North Carolina, was even more explicit about this. He noted that under a direct election of the president, Virginia would be at a disadvantage because ‘her slaves will have no suffrage.’ The same would be true for all of the South. As Yale law professor Akhil Reed Amar has repeatedly pointed out, the Electoral College ‘was originally much more about slavery than about a big-state, small-state balance.’ This, in itself, should make us deeply uncomfortable with the Electoral College.”
What might we do to mitigate this undemocratic and corrosive force in American presidential elections?
Given that the rules for choosing electors is up to the states, shy of opening a Constitutional convention and eliminating the Electoral College altogether – unlikely to succeed given that two-thirds of the states would need to approve – the easiest way to democratize our electoral system is to wage a state-by-state campaign to eliminate the winner-take-all rule that exists in most states today. If each state awarded proportional electors to a candidate based on the number of votes he/she receives by the population as a whole that would go far in correcting the inherent flaw codified by the framers of the Constitution to satisfy slave-owning states.
It is possible to do this before the 2024 election, but the effort ought to begin now.
There is a classic rabbinic Midrash (Babylonian Talmud, Baba Metzia 59a-b) that emphasizes the right of succeeding generations to rule on current matters and correct wrongs of earlier generations:
“Rabbi Eliezer … said to them: If the halakhah (law) is in accordance with my opinion, Heaven will prove it. A Divine Voice emerged from Heaven and said: Why are you differing with Rabbi Eliezer, as the halakhah is in accordance with his opinion? Rabbi Yehoshua stood and said: It is written: ‘Lo bashamayim hi – It is not in heaven’ (Deuteronomy 30:12). What is the relevance of the phrase? Rabbi Yirmeyah says: ‘Since the Torah was already given at Mount Sinai, we do not regard a Divine Voice, as You already wrote at Mount Sinai, in the Torah: ‘After a majority we incline.’” (Exodus 23:2)
The rabbis of the Talmud (500 CE) point to this passage to emphasize that people make law, that majority rule cannot be tyrannical to the minority nor minority rule be tyrannical to the majority.
Though the most democratic solution is to eliminate the Electoral College altogether, a workable compromise is to allocate percentages of the popular vote in electoral votes in each state to candidates rather than the winner-take-all system that we have today.
The Electoral College system, the Citizens United Supreme Court decision that ruled that corporations and other outside groups can spend unlimited money on elections (see https://www.brennancenter.org/our-work/research-reports/citizens-united-explained), and wide scale Republican voter suppression efforts have badly compromised American democratic elections. Each needs to be addressed to assure fairness in American elections.