No matter how the U.S. Supreme Court rules on the current constitutional controversy over voting by electors in the Electoral College, members of that body will meet in their own states next December to cast crucial votes for the presidency. The Court has not been asked to strike down the College.
Only in a fairly loose sense, however, will the outcome in the College truly reflect the political will of the nation, when judged by how representative the College is, or is not. That is a rather harsh judgment; why might that be so? It flows from a shared problem in the makeup of both the U.S. Senate and the Electoral College, a problem dating back to the founding era.
Looking first at the Senate and then at the College, the problem of representation begins to emerge. Under the Constitution, the Senate was designed explicitly not to be a truly representative part of the national government, even though it shares half of the power to enact laws with the far more representative House.
Each state gets two Senators, regardless of population; the House is supposed to reflect states’ population variations, although gerrymandering can compromise how representative it truly is.
What about the Electoral College, the place where presidential elections are actually decided? Each state gets two guaranteed votes in the College to reflect its guaranteed two seats in the Senate and each state gets at least a guaranteed third College vote, however small that state may be.
With those considerations in mind, consider this odd fact: at the Supreme Court’s hearings last week on the Electoral College, not one of the Justices seemed worried about how under-representative the College is, even though there was much talk about the need for the electors to respect the votes cast by the people. (Neither was there any expressed concern about the makeup of the Senate, despite how that links to the College’s membership.)
Consider a further point, which seems like a constitutional reality but may be debatable: the Constitution makes it extremely difficult to change the makeup of the College so that it would be more representative, and also makes it even more difficult (maybe close to impossible) to change the Senate itself in that way….