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12/19/2016

Is the Electoral College Unconstitutional?
Michael Ramsey

In the Los Angeles Times, Kenneth Jost argues that the system of presidential electors described in the Constitution is unconstitutional: The electoral college has always been the wrong way to choose a president.  Truly:

The electoral college ought to have been struck from the Constitution or invalidated by the Supreme Court long ago. Donald Trump’s electoral college victory — despite Hillary Clinton’s lead of more than 2.5 million in the popular vote — is only the latest proof that it’s the wrong way to choose a president.

As a practical matter, we can’t depend on a constitutional amendment to eliminate the electoral college. Amendments require ratification by three-quarters of the states, and enough small states think they benefit from the system that an amendment would never pass. Instead, it’s up to the Supreme Court — and a properly framed lawsuit — to do away with a system that not only never functioned as the framers intended but blatantly violates the court’s “one person, one vote” principle.

...

[The Electoral College’s] basic architecture flouts the principle that has defined elections for every other public office in the United States for the last 50 years: one person, one vote.

The Supreme Court established the principle in 1964, when it ruled that states cannot unevenly weight votes in choosing their officeholders. The 8-1 decision struck down a Georgia scheme that, much like the electoral college, gave voters in less-populated rural counties significantly greater power than voters in urban counties.

And in conclusion:

The electoral college is enshrined in the Constitution, but that doesn’t necessarily make it constitutional. The framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence vs. Texas. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

I like this essay because (assuming it's not a parody) it's the pure unapologetic form of nonoriginalism:  Even something expressly set forth in the Constitution can be unconstitutional if annoying, inconvenient or ill-advised.  (Notably, Jost is not a crank; among other things, he's the author is the respected annual Supreme Court Yearbook, a resource I've assigned to students in the past). So it seems that nonoriginalists should ask themselves: is this approach wrong, and if so, how is is different from more academic versions of nonoriginalism?  And if it is right, is it not simply asking Justices to provide constitutional rules based on their own assessment of the best outcome?

As an aside, Jost's criticisms seem largely to miss the mark, or at least to conflate two (or three) separate problems with the electoral college.  His main constitutional complaint is that the system of electoral voting overweights the votes of less populous states.  That's true, of course (because electoral votes depend on a state's congressional delegation -- that is, its House delegation, apportioned by population, and its Senate delegation, always two regardless of population).  His main political complaint appears to be that Trump defeated Clinton despite Clinton's popular vote win.  That, however, has nothing to do with overweighting of less-populous states.  By my quick math (probably wrong but close enough), if electoral votes were allocated only on the size of a state's House delegation, Trump would have defeated Clinton 246-190.  

The electoral vote/popular vote disparity arises from states' decision to allocate electors on a winner-take-all basis (something not required by the Constitution nor prohibited by Jost's idea of one-person-one-vote).  Thus Jost's constitutional argument not only wouldn't get rid of the electoral college, it wouldn't reverse the outcome of the 2016 election.  All it would do is change the number of electors each state gets, in a usually meaningless way.

(Via Josh Blackman's Blog, where Professor Blackman argues that Jost's essay misstates the Supreme Court's one-person-one-vote precedents: Reynolds v. Sims Reaffirmed the Constitutionality of the Electoral College “Despite its Inherent Numerical Inequality”).