For anyone with an interest in the longevity of the Electoral College system, it might be tempting to view the 2016 U.S. Presidential Election as the death knell for what is perhaps the most innovative feature of the United States Constitution. After all, Democratic voters – who, ostensibly, make up a clear majority of the electorate – have now lost-out again thanks largely to an electoral system that provides smaller rural states with a disproportionate level of political influence. Even prior to November 8 2016, an estimated 72% of Americans favoured the abolition of the Electoral College, and since Donald J. Trump’s landslide victory last November, the media has seemingly closed-ranks behind the idea that the current method of election ought to be replaced by a national popular vote at the first opportunity.
Burned not merely once, but now twice, by James Madison’s invention, Democrats – like California’s Sen. Barbara Boxer and Tennessee’s Rep. Steve Cohen – have started actively exploring the possibility of establishing a nationwide poll via constitutional amendment. Not since 1970, and the filibuster that ended the Bayh-Celler amendment, has the political machinery of the United States capitol been used to reconsider the way in which the President of the United States is elected. But while it might be straightforward to conclude that the Electoral College stands as an institution that has simply had its day (and that the long-promised era of popular voting is upon us), the reality is that those seeking a change in the method of election are now faced with a sizeable obstacle that is largely of their own making.
For some time now, opponents of the Electoral College have been busy constructing and promoting a constitutional bypass that would establish a national popular vote, and until recently, this work-around – known as the National Popular Vote Interstate Compact (NPVIC) – actually had legs. The NPVIC is a state-level agreement which would bind its signatories into casting all of their electoral votes for the candidate who wins the popular vote nationally, and the Compact would come into effect once the participating states combine for 270 electoral college votes. So far, the signatories to the agreement carry 165 EVs between them, leaving the movement just 105 short of achieving its objective.
For almost two decades, there has been considerable momentum behind the National Popular Vote campaign. While just 11 states have formally signed up to the interstate compact, it has passed through at least one legislative chamber in the states of Arkansas, Arizona, Connecticut, Colorado, Delaware, Maine, Michigan, Missouri, Nevada, North Carolina, New Mexico, and Oklahoma. For those of you who don’t know the electoral college distribution by heart (which, I’m assuming, is most sane people), it’s worth noting that these thirteen states combine for 106 electoral votes. 271 might, then, be the NPV’s ceiling, but it could also be its floor.
While it’s certainly incontestable that Trump’s electoral-college-win/popular-vote-loss has given the NPV an considerable injection of moral authority, when we look further down-ticket it becomes clear that the campaign’s route to 270 is now impassable. Contrary to almost all predictions, Donald Trump possessed coattails and the Democrats were decimated in a plethora of state-level elections. At the beginning of the 2017 legislative session, Republicans controlled 66 of 99 legislative chambers throughout the country, and the GOP enjoys trifectas in 31 of 50 states – including the prized commonwealths of Michigan, Pennsylvania, and Ohio.
The Democrats’ state-level failings are especially significant because, realistically, the road toward a national popular vote has go through at least two of the big three rust-belt states. While the thirteen states (combining for 106 votes) I previously identified as potential signatories contained only Michigan, it’s unlikely that all thirteen will consent. With that in mind, the NPVIC campaign has much clearer path to victory if it can capture some combination of Michigan’s 16, Ohio’s 18, and Pennsylvania’s 20 electoral votes. Picking up 36 or 38 votes in the Rustbelt would take the pressure off carrying more unlikely participants like Arkansas (6), Oklahoma (7), and tiny-Maine (3).
If Republican proponents of the electoral college wish to deal the NPV movement a debilitating blow, they ought to initially repeal the popular vote bill that is currently alive in the Michigan state legislature. While at it, GOP lawmakers in the Wolverine state should author and enact a piece of positive legislation, something along the lines of a Protection of the Electoral College Act. Though such an act wouldn’t constitute a formal change in law, it would send a clear, and in some ways chilling, message to popular vote advocates that if they want Michigan’s 16 votes they will not only have to make the case for the compact, but will also have to dismantle a legislative framework that is focused solely on protecting a core feature of the U.S. Constitution.
Enacting a Protection of the Electoral College Act will also provide constitutionalists with the opportunity to construct and test arguments in favour of the current presidential election method. What is the positive case for the founders’ signature constitutional creation? And why would its displacement be dangerous? It’s about time comprehensive answers to such questions were fully constructed and disseminated.
With all this in mind, Republican success in the various states means that proponents of the electoral college can finally switch from defense to offense. The GOP trifectas in Oklahoma, North Carolina, and Arkansas, and Missouri could not only reverse the live NPV bills that currently exist, but they could follow Michigan in enacting electoral college protection bills that would make NPVIC ratification all the more difficult should the GOP ever lose its controlling status in those states. Depending, moreover, on local polling, the question of whether the electoral college method should be maintained could be put directly to the people of those states. There is, for instance, certainly a good chance that the people of all-important Ohio and suddenly-relevant-again Pennsylvania would want to safeguard their ability to play a decisive role in selecting the president.
For readers who, like me, favour the continuation of the electoral college on philosophical grounds, the notion that the institution will be preserved due solely to the self-interested survivalism of the GOP might be just as unpalatable as the idea of a Trump presidency. But to those sceptics I say this: the Electoral College is no longer a subject of high political theory, but is instead a subject of realpolitik. For anyone who feels uneasy about the idea of winning grand philosophical battles through cajoling and flattering self-interested politicians, might I refer to the careers of two gentlemen whom I’m sure you respect: James Madison and Thomas Jefferson.