The Electoral College: Vestige of Slavery

and one way of getting rid of it without amending the Constitution

The electoral system has failed us twice in the past two decades. The election of George W. Bush in 2000 was the classic example (until 2016, of course) of the failure of a system based on the Electoral College. That Bush was declared the winner in Florida on the strength of a margin of less than 600 votes, and the abrupt end to the recount with such a slim margin at issue and persistent claims of irregularities at multiple polling places, has haunted the electoral process for more than twenty years. Further angering Democrats was that Gore outpolled Bush nationally by more than 500,000 votes.

If 2000 was a disaster for the Democrats, 2016 was a catastrophe. Trump lost the popular vote by nearly three million votes. Yet by winning margins in the five and low six figures in Michigan, Wisconsin and Pennsylvania, he received an electoral college majority that secured his victory. Again, the Democrats could point to incidents of voter suppression in tens of states, largely untrue attacks on Clinton and most of all, the massive effort by Russia to help Trump win through the use of social media and other means. Twitter and Facebook in particular gave space to a multitude of trolls and saboteurs, many if not most being Russians. They successfully fanned the flames of hatred and persuaded millions to come out to vote for Trump. The country dodged a bullet in 2020. Despite losing to Biden by 7 million votes, Trump would have won the electoral college with a shift of a total of approximately 100,000 votes in several states.

The culprit in the cases of Bush and Trump was the Electoral College. Institutionalized in the Constitution, it was even at the time of the framers a contentious issue. It came about as a result of the desire largely by southern states to preserve slavery and their perceived rights as individual states. The problem was that to achieve their objectives, they needed to create a minoritarian system that ensured that lesser populated states always had an effective veto over the more populous states on those issues that mattered most to the South.

There was fierce opposition from non-slave states, but it failed to sway the southern delegates. It is likely that had the non-slave states not been willing to compromise, some states might even have abandoned the Union. In order to keep the slave states in the convention, the other states gave in, largely from exhaustion. The electoral college was one of the last issues to be resolved at the end of a grueling convention. Nobody wanted popular elections or elections by state legislatures so they settled on this terrible means of electing a president.

The result is that a sliver of votes in several states among nearly 160 million individuals can upend a popular vote and cause the imposition of minority rule. This is a system designed in fact to preserve minority rule and it is untenable, because in a country this divided the resentments unleashed by the results of elections that result in minoritarian governments will cause a total lack of faith in the electoral system.

People will only tolerate disenfranchisement for so long. After two elections that led to the losing popular vote candidate winning, it is easy to envision that the results of another such election will potentially result in civil unrest. On the more encouraging side, the result of another election gone off kilter could be a significant public push to change the system.

A possible fix is the National Popular Vote Interstate Compact. This agreement encompasses states that have chosen to award their electoral votes to the winner of the popular vote in the 50 states and the District of Columbia. As of mid-2024, 17 states and D.C. have adopted the compact. Between them, they comprise 209 electoral votes. If enough states vote to adopt it (the number needed to trigger the compact is 270 electoral votes, the same number needed to elect a president), it would gain the force of law.

While it would be subject to legal challenges, it doesn’t contradict the electoral college system, it simply selects electors based on the national popular vote.

While this may seem pie in the sky, we have to try something. The Compact is for now the best path forward and we should all lobby our states who have not yet adopted it to do so. It will be hard but well worth the effort if it succeeds. Another unfair election and it might.