Mulroy: The Electoral College: Time To Graduate [corrected post]

[Bumping to the top because this original post was inadvertently incomplete.]

The following is the first of three guest posts by University of Memphis law professor Steve Mulroy, sounding some themes from his fascinating new book, Rethinking US Election Law: Unskewing the System:

We all know it is possible for a presidential candidate with fewer votes to win in the Electoral College over one with more votes. But we also saw elections in the House (2012)  where the party with the majority of votes doesn’t control a majority of seats.[1]   One can find similar results at the state and local level.

For all, the fundamental problem is holding winner-take-all elections within single-member political subdivisions—States for the Electoral College and Senate, and districts for the House as well as state and local elections.   Even where there is no counter-majoritarian result, these electoral features can often lead to a significant “skew” between votes and seats won by a political party, racial minority, or other politically cohesive group.

The skew likely will only get worse, as “demographic clustering” (aka “The Big Sort”) continues, with Democrats overconcentrating in cities, leading to “natural gerrymanders.”  By 2040, 30% of Americans  will control 70% of the Senate, and they will not be demographically representative of the nation as a whole.

We should be troubled by such results.  Elections are designed to measure popular will; they should reflect that will accurately.

In my book, I propose reforms to address these problems.  This post focuses on the Electoral College.

The Framers devised the College out of an inherent distrust of common voters ;  a desire to placate slave-holding states ; and as a compromise between large and small states.  None are persuasive today.  It’s not even clear the College really does protect small states.  Instead, it transfers power to about 10 swing states, only 2 of which are in the bottom half of states by population.

The best modern defense of the College is the notion that it prevents a candidate with regionally isolated appeal from winning despite deep unpopularity in the rest of the nation’s regions.  But under any reasonable definition of “region” today, no one region would be enough to win the popular vote; a candidate would need to dominate in several major regions, by which time they’d likely be racking up Electoral College wins as well.

Abolishing the College through constitutional amendment is politically fanciful.  There are at least 10 swing states which would have every incentive to fight their loss of outsize influence, almost enough to defeat the ¾ majority required.  But there is a workaround: the National Popular Vote Interstate Compact.

The NPV Compact builds on the settled rule that state legislatures have plenary authority in allocating Electoral College votes.  State legislatures pass laws awarding all their Electoral votes to whichever candidate receives the national popular vote.  In an ingenious solution to the “Who goes first?” problem, the Compact only becomes effective once enough states sign on to control 270 Electoral College votes, and thus the election outcome.  The Compact is currently at 172 Electoral votes, almost 2/3 of the way there.

The common policy objections to the Compact are either retreads of the arguments over the College itself, or otherwise lacking in force.  The legal objections fare little better.

A common legal objection sounds in the Compact Clause, which prohibits any State from entering into “any Agreement or Compact with another State” without the consent of Congress.  But the Supreme Court has long interpreted that Clause narrowly to apply only to agreements which encroach on federal authority.  Another objection, that it somehow gives some other entity besides the state legislature the final say, both overlooks the fact that states can withdraw from the Compact, and seems less plausible in light of the broad reading of “state legislature” recently used by the Court in the Arizona Independent Redistricting Commission case.

The Compact is the only viable way to fix an inherent non-majoritarian flaw in our presidential electoral scheme.  Reform advocates should urge states who haven’t yet adopted it to do so.

[1]  Similar non-majority results can be observed in recent Senate elections as well, although scoring them is more complicated.

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