The Electoral College could be abolished without an amendment.

It Would Actually Be Very, Very Difficult to Abolish the Electoral College

It Would Actually Be Very, Very Difficult to Abolish the Electoral College

The Slatest has moved! You can find new stories here.
The Slatest
Your News Companion
Nov. 10 2016 2:14 PM

Yes, We Could Effectively Abolish the Electoral College Soon. But We Probably Won’t.

621085928-supporters-listen-to-republican-presidential-nominee
Donald Trump won the presidency while losing the popular vote—a nonsensical and anti-democratic result. What is to be done?

Chip Somodevilla/Getty Images

The Electoral College is a democratically indefensible anachronism that dilutes minority votes while disproportionately amplifying whites votes. Defenses of the system are almost comically casuistic in light of the fact that we transcended its two original purposes: To water down democracy by choosing independent “electors” who vote for president (which we no longer do), and to help Southern states maintain national influence despite the fact that a large chunk of their population consisted of slaves who were denied the right to vote. But the Electoral College remains lodged in our Constitution, and this year, for the fourth time in history, it elevated to the presidency a candidate who lost the popular vote.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

What to do? Over at Daily Kos, with a piece that seems to be going viral on social media, Chris Bowers reminds us of the National Popular Vote Interstate Compact, or NPVIC, probably our best hope of effectively nullifying the Electoral College. (The only other option is a constitutional amendment, which would require the support of the small states that benefit the most from our current system.) The NPVIC is a proposed agreement among the states and the District of Columbia to render the Electoral College obsolete by ensuring that the winner of the popular vote also wins a majority of electoral votes. Here’s how it works: States are constitutionally empowered to decide how they assign electors. If a state passes the NPVIC, it vows to assign its electors to whichever candidate wins the national popular vote—but only once enough states have joined the NPVIC to guarantee that candidate 270 electoral votes.

Advertisement

Ten states and D.C. have already joined the compact, adding up to a combined 165 electoral votes—or 61.1 percent of the votes necessary for the compact to take effect. If a few more states join, their combined electoral votes will reach 270, and the compact will take legal force. At that point, the Electoral College will become a footnote. The winner of the popular vote will instantly be awarded the necessary electoral votes to become president under the Constitution. States that refused to join the compact can do nothing to stop it.

There is virtual unanimity among scholars that the NPVIC—which, notably, was designed by the extremely influential legal experts Akhil Amar and Vikram Amar—passes constitutional muster. The Constitution declares that “each state shall appoint” in electors “in such manner as the legislature thereof may direct”; if the state directs the appointment of electors through the NPVIC, the Constitution doesn’t stand in its way. Opponents argue that the Compact Clause of the Constitution requires congressional consent of the NPVIC before it could take effect. But that clause only requires congressional approval of interstate compacts that encroach on federal supremacy or the sovereignty of other states. The NPVIC does neither, because states that don’t sign on can still “appoint” electors however they so choose, and it doesn’t infringe on Congress’ sphere of election regulation. In short, the NPVIC simply creates a mechanism by which participating states assign electors—which presents no Compact Clause problems.

The issue, then, is not one of abstract law, but of simple politics. Small states like Wyoming are not going to voluntarily relinquish their outsized influence over presidential elections, while red states like Texas are not going to risk sending their electoral votes to a Democrat. That leaves swing states as the NPVIC’s only hope. And as Nate Silver explained in 2014, it’s difficult to envision enough swing states joining the compact to give it legal effect. (Ballot measures are likely off the table, because the Constitution assigns to “the legislature” the power to decide the “manner” in which electors are appointed.) You would certainly need states like Michigan and Minnesota, which typically lean blue in presidential elections but whose legislatures are both stacked with Republicans. Then you’d need some combination of Ohio, New Hampshire, Colorado, Florida, Virginia, Nevada, Iowa, Wisconsin, and Pennsylvania. In all of these states except Nevada, Republicans control one or both houses of the legislature; in Nevada, a Republican sits in the governor’s mansion.

Yes, 2018 will provide Democrats with an opportunity to regain some statehouse seats. But in most swing states, Republican control over state legislatures deepened on Election Day. Democrats can try to reverse these losses in 2018. In many states, however, GOP-led gerrymandering has ensured Republican control over at least one state legislative chamber for the foreseeable future.

None of this means the NPVIC is a lost cause. It only means that, contrary to Bowers’ assertion, it isn’t really “realistic” to imagine states effectively erasing the Electoral College by 2020. The compact requires a long political slog—signing a petition, as Bowers asks readers to do, certainly won’t move the needle—as well as charmed timing: At the moment, Democrats despise the Electoral College, but until Tuesday, they occasionally convinced themselves that it could favor them. And if Democrats once again come to believe the Electoral College provides them with a mythical “blue firewall,” zeal for reform may fade.

In short, the NPVIC will only succeed if it becomes a key campaign issue for Democrats with nonpartisan overtones. Democrats must be willing to defend abolishing the Electoral College even if doing so might favor the opposition party, pitching reform not as a matter of politics, but of democratic principle. Right now, even reliably Democratic states like Connecticut and Delaware have failed to sign onto the compact, indicating a general apathy toward reform. Democrats need to harness today’s anger toward the current electoral system into an actual movement with funding, influence, and enthusiasm—one that can coherently explain to Americans why our system is such an abomination, and how we can fix it through political willpower. Until that happens, the NPVIC, alas, will remain nothing but a pipe dream.