As much as I’m concerned about the risk that on January 6, 2025 there will a successful subversion of the popular vote caused by an abuse of the procedures set forth in the Electoral Count Act, I’m concerned about other ways that the Electoral College system might be gamed so that partisan manipulation of the process prevents the winner of the 2024 presidential election being the candidate preferred by a majority of the nation’s voters.
For example, I fear the possibility that one or two battleground states might replicate the method of appointing electors chosen by Maine and Nebraska, allocating an electoral vote for each of the state’s congressional districts. If Republicans win the 2022 gubernatorial elections in Michigan and/or Pennsylvania, while retaining control of the legislatures in those states, the GOP might be tempted to make this move there. These are the two battleground states where Biden’s win was largest, and thus the better bet from a purely partisan perspective might be to take a split of the state’s electoral votes in these two bluer states while going for winner-take-all victories in the states that Biden won more narrowly, like Arizona, Georgia, and Wisconsin.
Michigan made this partisan move once before, for the 1892 election, and the Supreme Court approved it as constitutional in McPherson v. Blacker, 146 U.S. 1 (1892). Pennsylvania, among other states, in recent years has considered doing this. And, of course, Maine and Nebraska already use this method. Thus, absent reform of the Electoral College system, the only thing blocking Michigan and Pennsylvania from making this move–if Republicans gain control after the 2022 midterms–would be self-restraint on the part of the Republicans in power. But the main lesson in the aftermath of the January 6 insurrection is that the party’s desire to hold power is greater than its adherence to the democratic norm of letting a majority of voters determine who should hold office.
If Republicans were to win back the White House this way–despite again losing the national popular vote (and despite the fact, let’s hypothesize, that they would have lost even the Electoral College if they had left the existing winner-take-all method of allocating electoral votes in place in those two battleground states)–it would be not be a coup. Rather, it would be an exercise of partisan gaming of the Electoral College process similar to what occurred in the early years of the Republic, including by Virginia for the 1800 election in order to improve Jefferson’s chances.
But it would illustrate just how profoundly undemocratic and susceptible to manipulation the Constitution’s system for presidential elections remains. As Alex Keyssar demonstrated in his masterful Why Do We Still Have the Electoral College?, since the Twelfth Amendment the nation has been unable to amend the Constitution to eliminate, or even reform, the Electoral College despite multiple attempts and popular support for change. And as Jesse Wegman observes in the New York Times, America seems to have lost a capacity for constitutional amendment in general.
The very serious challenge for the country, it seems to me, is how to create a civic culture in which the collective commitment to letting the majority of voters prevail is so strong that a contrary partisan desire to hold power cannot defeat this cultural adherence to democracy. We seem to be moving in the wrong direction in this regard. But we better figure out how to reverse course fast. Because it won’t necessarily take a coup to defeat the will of the majority; all it may take is using the existing procedures enshrined in the Constitution for over two hundred years.