The electoral college ought to have been struck from the Constitution or invalidated by the Supreme Court long ago. Donald Trump’s electoral college victory — despite Hillary Clinton’s lead of more than 2.5 million in the popular vote — is only the latest proof that it’s the wrong way to choose a president.
As a practical matter, we can’t depend on a constitutional amendment to eliminate the electoral college. Amendments require ratification by three-quarters of the states, and enough small states think they benefit from the system that an amendment would never pass. Instead, it’s up to the Supreme Court — and a properly framed lawsuit — to do away with a system that not only never functioned as the framers intended but blatantly violates the court’s “one person, one vote” principle.
Article 2 of the Constitution sets up the electoral college. It assigns votes to states by the size of their congressional delegation: Each state gets two electors — just as they get two senators — in addition to those apportioned by population. The result weights the outcome in such a way that electoral votes cast by the most populous states are worth a fraction of those cast by smallest states: One Wyoming electoral college vote represents 143,000 people; the ratio is 1:500,000 for California.
Plaintiffs in a legal challenge could be voters in any of the most populous states. They could correctly argue that their votes are being systematically undervalued in presidential elections, and that existing amendments to the Constitution override Article 2.
The mechanics of the electoral college are the product of a morally corrupt decision to placate slave states in the agrarian South. At the Constitutional Convention, Pennsylvania’s James Wilson proposed direct election of the president, but he was shot down by the slave-owning Virginian James Madison.
The South’s nonvoting slaves would have counted for nothing in a popular-vote system. But slaves increased the political clout of the South because the Constitution’s three-fifths clause — each slave was deemed to be worth three-fifths of a person — counted them for apportionment in the House of Representatives. The same math was applied to the electoral college, which extended that clout to the presidency.
Before the Constitution was ratified, Alexander Hamilton sold the electoral college to voters in Federalist No. 68 as a collective, deliberative body, a means of checking the passions of majority rule. But no “electoral college” has ever met in that manner. The president and vice president aren’t determined, as Hamilton envisioned, by men “capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation.”
Today, electors’ names don’t appear on most states’ ballots; voters know nothing of their capabilities. The parties choose slates, and the slates follow the popular vote. The 157 electors who through history have deviated from this norm aren’t praised for their deliberations but criticized as “faithless.” A state can punish such electors after the fact, according to a 1952 high court ruling; it can’t prevent them from voting as they see fit. (This has led some to hope — fantastically — that enough electors will defect this year to deny Trump the presidency.)
Even if the electoral college functioned as Hamilton envisioned, it still would be illegitimate. Its basic architecture flouts the principle that has defined elections for every other public office in the United States for the last 50 years: one person, one vote.
The Supreme Court established the principle in 1964, when it ruled that states cannot unevenly weight votes in choosing their officeholders. The 8-1 decision struck down a Georgia scheme that, much like the electoral college, gave voters in less-populated rural counties significantly greater power than voters in urban counties.
Justice William O. Douglas acknowledged the fact that the Georgia system was similar to what was set up in Article 2, but he still concluded that the impulse was unconstitutional — and un-American. “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote,” he wrote.
With an appropriate challenge in the high court, that precedent ought to topple the electoral college. Plaintiffs could also argue that the electoral college violates the equal protection principle now recognized as implicit in the Fifth Amendment's due process clause.
Still, the college has its supporters. They fall back on a political defense. In a pure popular-vote system, they warn that candidates would pay no attention to the least populous states. But it’s not as if Wyoming’s voters are getting a lot of attention now.
Supporters also enlist another argument — whatever its quirks, the system usually follows the will of the people and sends the national popular vote-winner to the White House. But if that’s the desired result, why not simply choose the president and vice president through direct election?
The electoral college is enshrined in the Constitution, but that doesn’t necessarily make it constitutional. The framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence vs. Texas. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
Kenneth Jost has written the annual series Supreme Court Yearbook since 1993. His blog is Jost on Justice.
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Dec. 18: This article was updated to clarify the argument plaintiffs could use before the Supreme Court.