"A MYSTIFYING AND DISTORTING FACTOR": THE ELECTORAL COLLEGE AND AMERICAN DEMOCRACY.

• Author: Shaw, Katherine
• Position: Annual Book Review Issue

LET THE PEOPLE PICK THE PRESIDENT: THE CASE FOR ABOLISHING THE ELECTORAL COLLEGE. By Jesse Wegman. St. Martin's Press. 2020. Pp. viii, 296. $27.99.

INTRODUCTION

As the 2020 presidential election made clear, the Electoral College is a profoundly dangerous institution. American constitutional democracy survived that election and its aftermath, emerging battered and bruised but still standing. (1) But the Electoral College is in large part to blame for how close it came to a fatal wound.

That's true as a technical matter. Joe Biden won the national popular vote by approximately seven million votes and prevailed in the Electoral College 306-232. (2) But just forty-four thousand more Trump votes across Arizona, Georgia, and Wisconsin would have resulted in a 269-269 tie in the Electoral College. (3) If that had happened, the House of Representatives, voting by state delegation, would likely have handed Donald Trump the presidency. (4) That would have marked the third time in twenty years--and the second time in two cycles--that our anachronistic system of presidential selection produced a president who did not win the national popular vote. (5)

Following the election, President Trump worked ruthlessly to convert loss into victory, exploiting pressure points and ambiguities in the protracted and complex process, partly constitutional and partly statutory, that we refer to collectively as the Electoral College. Trump's campaign filed numerous lawsuits (6) designed to delay state certification beyond the statutory "safe harbor" deadline, after which a state's slate of electors is no longer conclusive in the event of a dispute. (7) Trump supporters attempted to disrupt the required meetings at which each state's electors actually cast their votes. (8) Ersatz Trump "electors" purported to cast competing votes in some states, seeking to lay the groundwork for later challenges to official state slates. (9) Trump pressured state election officials to "find" additional votes for him. (10) Trump loyalists in the Department of Justice sought to push state legislatures to take the radical step of discarding state returns on the basis of spurious fraud claims and appoint Trump electors themselves. (11) Trump himself reportedly urged Vice President Pence to refuse to count electoral votes from a number of states in which Biden received more votes. (12) Most significantly, what became the January 6, 2021, attack on the Capitol was an effort to disrupt the final event in the Electoral College timeline: a joint session of Congress over which the vice president presides. (13)

So the baroque and multistep process through which a candidate becomes president afforded Trump a number of postelection opportunities to contest or undermine, in terms framed in law and legal process, the results of an election he had plainly lost. (14) Might the College have also played a more subtle role in these events? That is, might its very existence have served to undermine the health and resilience of our system in ways that made us more susceptible to Trump's efforts to subvert democracy and the rule of law?

Consider here the political rhetoric around presidential elections, which, because of the College, frames elections more as complex puzzles or logic games than as singularly important moments in self-governance. We discuss "paths to 270"; (15) on election night, pundits like MSNBC's Steve Kornacki manipulate touch screens, enabling them with a wave of the index finger to fundamentally change our destiny ("What if we throw in NE-2?," "He's really got to run up the score in Broward County," etc.). Consider as well the way the College's winner-take-all logic means that we color code the country in red and blue, eliding the fact that Americans of all political identities reside in every county and every state. This coding may well have primed a portion of the electorate to accept outlandish claims of election fraud when a state like Georgia, one that had for decades been reliably "red," shifted to the "blue" column. (16) Perhaps all of this helped lay the groundwork for President Trump's stratagems after November 3--or at least lulled the country for a time into thinking that there was nothing wildly anomalous about a process in which an obviously defeated candidate delayed and exploited pressure points in a desperate attempt to cling to power.

It is tempting to dismiss these events as largely attributable to the identity of the incumbent president and not as fundamentally connected to the Electoral College. Certainly, any electoral system can be targeted by a sufficiently determined aspiring autocrat. But as Jesse Wegman's Let the People Pick the President: The Case for Abolishing the Electoral College (17) makes clear, not only questions of democratic legitimacy but also the specter of chaos and manipulation have stalked the Electoral College from the beginning (pp. 58, 86-102).

Wegman has contributed an important work to the literature calling for Electoral College reform. His book is an accessible, short, and almost breezy read. But to its credit, it doesn't oversimplify; it's a deeply sophisticated exploration of the central pathologies of this key feature of the American political and constitutional landscape. The book's urgency has only increased since its publication in March 2020. One hopes that this urgency is not lost as President Trump's tumultuous departure from office fades from view. While Trump was emphatically wrong in the particulars of his attack on the 2020 election, there is something deeply broken in our system of presidential selection. Perhaps an unexpected legacy of Donald Trump's presidency will be finally galvanizing us to fix it.

Part I of this Review describes the origins of the Electoral College. Part II assesses the College's performance over 235 years: routinely misfiring, the subject of a staggering number of constitutional amendment efforts, and likely responsible for exacerbating--if not causing--polarization, dysfunction, and division. Finally, Part III assesses prospects for Electoral College reform, including the National Popular Vote Interstate Compact.

1. THE ELECTORAL COLLEGE: ORIGINS

   We use the term "Electoral College" to describe our scheme of presidential selection, but those words do not appear in the Constitution. (18) The process, however, does. Indeed, more of Article II, which creates and empowers the office of the presidency, is devoted to presidential selection (together with removal and succession) than to presidential governance. (19) The relevant constitutional language provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." (20) It then sets forth a multistep process in which the electors are to "meet in their respective States" to "vote by Ballot for two Persons," then transmit those sealed votes "to the Seat of Government of the United States," where the president of the Senate "shall, in the presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted." (21) Following this counting, the individual with the most votes becomes president and the runner-up vice president. (22) If no candidate commands a majority, the House chooses the president, with each state delegation having one vote, and the runner-up becomes vice president, unless there's a tie for the number two spot, in which case the Senate chooses the vice president. (23)

   Phew. So how did this Rube Goldberg scheme come to be included in the Constitution? There is evidence in the records of the Constitutional Convention to support a number of distinct origin stories: an elitist fear of too much democracy and a perceived need to create some mediating body; a desire to maximize slave-state power; (24) a response to small states' concerns that presidential selection not be dominated by a few large states; or simply a byproduct of delegate exhaustion and resignation after months of stalemate. Wegman acknowledges that each of these accounts captures a real dynamic at play in Philadelphia in the summer of 1787, but the narrative he offers mostly supports the final theory--that the best reading of drafting history is that the Electoral College was a hasty, eleventh-hour solution to one of the most vexing problems the drafters faced, arrived at by delegates who initially punted on this difficult question and then simply ran out of time to craft a more elegant solution. (25)

   The protagonist of this portion of the book is James Wilson, a leading revolutionary thinker who had been educated in Scotland at the height of the Scottish Enlightenment, and who, on Wegman's telling, brought to the Convention a profound commitment to popular sovereignty. (26) Although not nearly as well-known as other leading lights of the Founding generation, (27) Wilson was a key constitutional architect and a vocal participant at the Convention (p. 48), and he was singularly focused on the office of the presidency. Throughout the Convention he argued for a single chief executive--a number of delegates supported the creation of a plural executive (28)--and he urged, initially with no support, direct popular election of that executive (pp. 62-63).

   After the Convention had forged its compromises around the legislature, attention turned back to presidential selection, which Wilson described as "in truth the most difficult of all on which we have had to decide." (29) By now Wilson had gained the support of important players, including James Madison and Gouverneur Morris, for his position that the president "ought to be elected by the people at large" (p. 68). Opponents raised a range of concerns: some were grounded in obvious disdain for the masses, (30) while others turned on practical concerns about the challenges of informed choice in...