Beyond Sisyphus: Some Thoughts on Electoral College Reform
Jack N. Rakove * | 24.5 | Article | Citation: Jack N. Rakove, Beyond Sisyphus: Some Thoughts on Electoral College Reform, 24 U. Pa. J. Const. L. 1001 (2022).
Concluding his definitive account of the numerous efforts that have been made to reform the Electoral College, Alexander Keyssar muses that “The history recounted here has a Sisyphean air.” Many patient readers will readily agree. The rallying cry they want to hear may therefore not echo the charge of Shakespeare’s young Henry IV: “Once more unto the breach, dear friends, once more.” And yet:
But when the blast of war blows in our ears,
Then imitate the action of the tiger.
Stiffen the sinews, conjure up the blood,
Disguise fair nature with hard-favoured rage . . .
If one believes that Americans are engaged in a fateful struggle to preserve their democracy; that the sacking of the Capitol on January 6, 2021 was as great a threat to our national security as the terrorist assaults of September 11, 2001; and that one of our political parties has degenerated into an authoritarian cult driven by visions of racial superiority and conspiratorial fears that meet or exceed the themes of Richard Hofstadter’s famous essay on “The Paranoid Style in American Politics”: then King Henry’s advice to gird our political loins “once more” should “summon up the blood”—or at least the political brain.
This essay, though written by a historian of the American Revolution and Constitution, will not dwell at length on the origins and early evolution of the presidential election system – subjects that its author has already examined elsewhere. An opening section will nonetheless summarize and stipulate key historical points essential to the overall argument. Two of these will be stated rather concisely; the third, which relates to early experiments in manipulating the rules for appointing electors, will be developed at somewhat greater length, in part because our fascination with the 1800 tie vote of running-mates Thomas Jefferson and Aaron Burr has led us to slight other developments of equal importance. The emphasis will then shift to the concerns, principles, and ideas that should guide or inform any effort to replace the existing state-based system of presidential elections with a National Popular Vote (NPV). This goal can be attained only through an Article V amendment, and not via the National Popular Vote Interstate Compact (NPVIC), which is a Rube Goldberg constitutional conjuring trick that is fatally flawed.
In pursuing this thesis, it is also helpful to move beyond some of the standard points that are made in supporting reform, less because they are wrong per se, but rather because they fall short of addressing more important concerns that go strangely unstated or neglected. There is no need, for example, to justify the fundamental principle of one person, one vote, because that is a defining norm of modern constitutional and democratic thinking. Nor need we agonize over the impact that “battleground states” have in fostering the psychological deprivation that voters in non-competitive states allegedly feel when campaigns ignore their mobilization. Living in a state where citizens are not subjected to an endless flow of campaign commercials would not number among the “long train of abuses” that John Locke and Thomas Jefferson would invoke to justify rebellion.
Three other issues are more important. First, in seeking to end a state based system of presidential elections, one has to ask what relation this system has to the maintenance of the federal system. It would be a truism to say that this system obviously reflects the existence of the federal system, but that tells us nothing about what if any positive value it contributes to the preservation of federalism. James Madison made a tentative effort to address this problem in Federalist 39, when, with typical nuance, he patiently tried to identify the mixed “federal” and “national” characteristics of the Constitution. “The executive power will be derived from a very compound source,” he observed. Presuming, incorrectly, that “the immediate election” (meaning the selection of leading candidates) would be “made by the States in their political characters,” and the “eventual election” by the House of Representatives voting by delegations, Madison concluded that presidential election “appears to be of a mixed character, presenting at least as many federal as national features.” Given that the elections of 1800-01 and 1824-25 were the only ones to be decided by the House, it seems safe to say, in Madisonian terms, that presidential elections remain inherently federal in nature. But that still begs the question, how important are they to maintaining our federal system?
Second, to answer this question, one needs to think seriously about the basis on which citizens cast their votes. It is unjust that presidential votes cast in California weigh far less than those cast in Wyoming, Idaho, or North Dakota, those rotten borough states that Republicans maneuvered to create in the late nineteenth century in order to maintain their control of the Senate. The presidential votes we individually cast are not determined by our perceptions of the collective or aggregate good of the states in which we reside, but rather reflect our individual interests, political preferences, and markers of identity. The array of interests, preferences, and sources of identity that American voters possess are distributed in different proportions across the states, but all these variables operate nationally. They have no relation to the disparate weight voters enjoy by the accident of their residence in more or less populous states. The local communities where we reside are much better reflectors of our interests and preferences than the states which gave those communities their legal existence.
Third, instead of worrying about the impact of battleground states on campaigning, we should be more concerned with the delegitimization of presidential power that has developed over the past three decades, ever since Bill Clinton showed that the Republicans did not have a lock on the White House, a revelation that left the GOP in political dismay and intellectual disarray. There are multiple sources of this phenomenon that reflect the personal characteristics and political circumstances of individual presidents. But one source clearly arises from our tendency to view presidential elections as factious and fractious competitions between blocs of red and blue states. The NPV could ameliorate this legitimacy question, not only by avoiding potential divergences between popular and electoral vote winners—a threat that now seems to be waxing rather than waning—but also by creating a true national victor decided in accord with a simple principle of majority rule, with provisions either for run-offs (a la mode francaise) or ranked choice voting producing that result.
* William Robertson Coe Professor of History and American Studies and Professor of Political Science, Emeritus, Stanford University. The author is grateful to his old friend Alex Keyssar and his younger colleague Jonathan Gienapp for their valuable comments on this essay.