Don Franzen and Jesse Wegman Discuss Abolishing the Electoral College




EDITOR’S NOTE: The Electoral College, a vestigial institution created as part of the many compromises of the Constitutional Convention back in 1787, has recently thrust itself into the news as a result of a unanimous Supreme Court decision upholding the right of states to mandate electors to vote for the candidate to which they are pledged. This decision will prevent “rogue” electors voting for anyone they wish in the next presidential election, but the institution itself — a strange amalgam of democratic and antidemocratic impulses — will still be the mechanism by which the next president will be elected. I interviewed Jesse Wegman, whose recent book, Let the People Pick the President: The Case for Abolishing the Electoral College, explores the oddities and contradictions of the peculiar system called the “Electoral College.”

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DON FRANZEN: Mr. Wegman, you’re a graduate of the New York University Law School, a Soros Justice Fellow and you currently work on the New York Times editorial board. Most recently you published a book, Let the People Pick the President: The Case for Abolishing the Electoral College. The title pretty much tells us where you’re coming from on this issue, but what I wanted to ask you first off is, since the Electoral College has been around for more than 200 years, why did you feel compelled to turn your attention to it now?

JESSE WEGMAN: Yes, a spoiler alert should come with this title, shouldn’t it? I hadn’t thought about writing a book on the Electoral College until after the 2016 election. I had been aware of the way the Electoral College could work to give the popular vote loser the presidency. Obviously in 2000 I was as shocked as millions of others that we had a system that could do that, but then it sort of faded away from my consciousness as I think it did for most people until it happened again in 2016. And in the immediate aftermath of that election, I wrote an editorial calling for the end of the Electoral College and for the National Popular Vote Compact, and then again the following year. And it was after that second editorial when I was speaking to someone who works in this area and he said, “You know, you should really be writing a book on this.” And suddenly it occurred to me, this is actually a fascinating topic and one that I — even after doing a little bit of research for an editorial on it — realized there was a lot I didn’t know and there was a lot I thought I knew that I misunderstood. So I figured, “Well, if that’s true for me, it’s probably true for millions of other people too.” And I began the process of writing a proposal for the book and we sold it in the summer, early summer of 2018. Interestingly, I sold it to a very conservative editor, Adam Bellow, who at the time was at St. Martin’s Press, my publisher, and he just loved the idea and he was a real champion of it. Even though our politics differed quite significantly, he really believed in the idea of a new way of electing the president. And so it was really a great experience for me just to be working on it in this moment in history, but also with someone with whom I disagreed on so many other things.

FRANZEN: Did your research take you to areas that were a surprise to you?

WEGMAN: As soon as you start to do research on this topic, you find that yes, this has been around for more than 200 years, and it has also been hugely controversial for more than 200 years. There have been more than 700 attempts in Congress to amend or abolish the College from the beginning — more than for any other provision of the Constitution. People have been upset about the way we choose our leader from the beginning, and yet we haven’t changed it. And that, to me, that’s sort of catnip to a reporter. Like, “Well, why haven’t we changed it?” So for me, part of the excitement of undertaking a book like this was, let’s try to answer some of the questions that I think have never really been answered satisfactorily for a mainstream audience. Lawyers and political scientists obviously talk about this all the time, but regular Americans, the ones who eventually will need to make this change just don’t understand a lot about the College, as I didn’t, so that was a big part of my emphasis for writing the book.

FRANZEN: Scholars including Paul Finkelman, who has written for the Los Angeles Review of Books

WEGMAN: He’s great.

FRANZEN: … have looked into the proslavery origins of the Electoral College, and I think you touch upon that in your book as well.

WEGMAN: Slavery is a fascinating part of the story of the Electoral College and it really wasn’t until the work of people like Professor Finkelman, Akhil Reed Amar at Yale Law School …

FRANZEN: By the way, another contributor to Los Angeles Review

WEGMAN: Akhil is wonderful. David Waldstreicher, another historian, has done really superb work especially in the last several decades over the role of slavery at the Constitutional Convention. And they really have helped to bring to light just how intertwined the debate over slavery was with all of the structures of our government and of our national charter. I think one of the things I learned is, first of all, slavery was much more a part of adoption of the College than I think was generally understood until very recently, and also that it’s a very complicated story. It’s not a simple story like what some people have started shifting into telling that, “Oh, it was just slavery and nothing else.” A lot of things were going on at the Convention. But slavery is an important one, and I think people, like the ones we’re talking about, have really been critical in getting it more attention in the public eye. What I think I can say comfortably is, slavery and the debate over slavery and the debate over human bondage as a practice was central to all of the deals that were made at the Constitutional Convention in Philadelphia in 1787. So obviously the adoption of the three-fifths clause is central to maintaining slavery.

FRANZEN: Take a moment to explain what the three-fifths clause is.

WEGMAN: The three-fifths clause counted each slave as three-fifths of a free white person for the purposes of both representation in Congress and taxation. That gave slave states extra political power because obviously they had hundreds of thousands of slaves, whom they could count toward their representation in Congress, even though those slaves obviously had no voting rights or any other rights. So the creation of the Senate, which gives equal power to every state, gave the slave states more power than they should have had based on their population alone. So all these things work together to strengthen the Southern slave states relative to the Northern states, and to allow for the practice and the institution of slavery to continue. The way that this played into the Electoral College is interesting. So the question of how to elect the president was the most vexing one at the Convention, it was the one that caused the most consternation among the delegates at the Convention. They battled over it for four months throughout that whole summer. They had many different days of debate. They had many different votes, at least 30 different votes on ways to elect the president, and in the end they settled on an indirect way of electing the president.

FRANZEN: And that settlement was the Electoral College?

WEGMAN: In the process of this debate, roughly in the middle of the summer in mid-July, there is this fascinating exchange between James Madison and some of the other delegates. They have just finalized the two major compromises of the Convention, which is the ones we’ve just talked about, the creation of the Senate and the three-fifths clause. These don’t please the Northerners and the bigger states’ representatives because they feel like they are disadvantaged by them, and they are. And then they return now to talking about the method of electing the president. James Madison, who’s known as “The Father of the Constitution,” actually says he believes that the direct popular vote for president was, in his opinion, the fittest in itself and would be as likely as any method to produce an executive of what he called “distinguished character.” He is coming out in support of a popular vote for president. This is something a lot of people don’t understand or don’t know about the founding, which is that many of the most influential delegates of the Convention actually wanted a popular vote for president from the beginning, and were arguing for it. But then Madison continues and he says, “There was one difficulty, however, of a serious nature, regarding a popular vote,” and he says, “The right of suffrage,” the voting right, “was much more diffusive in the Northern than the Southern states, and the latter could have no influence in the election on the score of the Negroes.” It’s a fascinating admission. He says it very openly. His point is basically that the Southern states aren’t going to go for a popular vote because many of the citizens living there can’t vote. So they would have comparatively less influence in the outcome of the election. We’ve spent so many decades pretending that slavery was less central than it actually was to the Convention. And here, James Madison, the Father of the Constitution himself, is just saying it openly on the floor of the Convention. So I think it’s important to remember that slavery is really inextricably tied into so many of our governmental structures. And even after slavery was eliminated and even after the three-fifths clause was eliminated through the 13th Amendment, and you have, in theory, anyway, equal voting rights for black people, the echoes of the institution of slavery continue to be heard today in the way our system operates.

FRANZEN: How is this fascinating bit of antebellum history relevant to our times?

WEGMAN: We often talk about the Electoral College, as with so many other parts of the Constitution, as sort of a virgin birth coming from the brilliance of the Founders handed down by them on stone tablets. And I think what we can’t forget is that so much of what happened to make the Constitution was intensely debated at the time, and people didn’t agree on how to elect the president. So when we talk about Founders and what they believed and what the nation was built to be, I don’t think there’s one simple answer to that question. There is a document that was the result of very big compromises among a small group of very privileged white male landowners that now applies to a country of 330 million people that has vastly different voting rules and other circumstances than they could have anticipated. I think it’s important to remember that there’s a limit to how much we can be controlled by the wisdom of the Founders. They got a lot of things right, but they got a lot of things wrong, and I think it is in the interest of and in the spirit of the American experiment to be respecting the things they did right and to be changing the things they did wrong.

FRANZEN: Let’s talk about what Hamilton thought the Electoral College was going to do — or supposed to do. Hamilton now has become more of a revered figure, thanks to the musical. But we do know he was an immensely intelligent man. He predicted a certain type of Electoral College. Has the College fulfilled his expectations?

WEGMAN: No. Hamilton did not play a very big role at the Convention itself and it’s not clear how much he was involved in the final decision to adopt an Electoral College. He was not there at the time that it was adopted but he wrote the Federalist No. 68, which is cited to this day as the primary source of the rationale behind why the College was adopted. Now, let’s remember one thing: The Federalist Papers are an infomercial, they are propaganda in favor of ratification of the Constitution. It was written for New Yorkers, and it was going to be a close call in the state of New York. And so, everything he writes is not necessarily what he believes, it’s what he thinks is going to sell the Constitution to skeptical New Yorkers. That said, in his Federalist No. 68 he says, and I’ll paraphrase it here, “We’re giving it to this body of distinguished men who have the requisite qualifications that will be sure to select someone who is most properly equipped to do the job of president.” Now, that creates this impression that people still have today that the Electoral College is intended to be this body of men who are wiser and more deliberative and more thoughtful about what leadership means than the rest of us, and who can therefore make a decision about who the president should be that will be better for the country as a whole. The Electoral College has never worked like that in practice. The key thing to remember is that the College that the Framers built was designed (or at least they said it was designed) to do one thing but has never actually done that thing. George Washington became our first president, and then he was reelected. In those elections, he was elected unanimously both times by the electors, but as soon as Washington stepped down, which is in 1796, and says he won’t run for a third term, you are seeing the rise of national political parties that completely scrambled all of the assumptions that the Framers made at the time of the drafting the Constitution less than a decade before, and one of these has to do with the way the Electoral College functions. Rather than being a body of neutral deliberative men thinking what would be the best for the country, the electors instantly become partisan political hacks who vote for their party’s leader, not for the best candidate in the country. And you have examples of this starting right away in 1796, where people take sides based on their partisan values, whether they’re a Federalist or a Democratic-Republican. And you have it running right up through today in 2020. You almost never see electors breaking from their party’s nominee, and when you do it never changes the outcome of the election. So what the Electoral College is today is effectively a rubber stamp for the majority of a state’s popular vote or the plurality of a state’s popular vote, but that is not what the Founders believed it would be.

FRANZEN: Your discussion about Hamilton illustrates the antidemocratic sentiment that seems to underlie the original idea of an Electoral College. In other words, having some sort of insulation between direct vote and the election of the president, giving it over instead to these supposedly wise men, who would come up with the best candidate. You also make the point that under the Electoral College every vote doesn’t count the same. I’ll quote from your book, you say that the Electoral College “violates core democratic principles of political equality and majority rule. We may all be eligible to vote for president now, yet all of our votes do not count the same, and the candidate who gets the most votes can lose.” Why is it that our votes don’t count the same? What is it about the Electoral College that defeats the idea that one man, one woman should each get one equal vote?

WEGMAN: There are two ways in which the Electoral College violates that principle. The one that I think most people think about is actually the less important one, and that is the one that is the effect of these extra two votes that every state gets for its senators. So the way that the Electoral College is designed in the Constitution is that states get a number of electoral votes equal to their representation in Congress, meaning all of their representatives in the House, plus their two senators. Obviously, that means that smaller states have a disproportionate number of electors compared to other population, that’s why …

FRANZEN: So Delaware and Vermont get three electoral votes each?

WEGMAN: Right. The common example is Wyoming has three electoral votes, California has 55, but when you break it down, that means that a Wyoming voter has close to four times as much power in choosing the electors in their state than a Californian does, because Wyoming and California have the same number of senators. There’s a lot of good criticisms of the Senate, but this book isn’t about that and we’re not going to change the Senate anyway. The point is that effect is actually much smaller than people think and that’s because of the other effect which makes our votes not equal, and that’s the statewide winner-take-all rule, which 48 out of the 50 states today use to award their electors after the election. The statewide winner-take-all rule is exactly what it sounds like. The state gives all of its electoral votes to the candidate who wins the most popular votes in that state. Whether they win by a single vote or by 10,000 votes or by a million votes, they get all of that state’s electors. What that means is that everybody in the state who voted for the minority candidate, the candidate who got fewer votes in the state or for any other candidate, is essentially erased by the Electoral College because they don’t matter, they don’t appear at all. It’s as though they don’t exist.

FRANZEN: So their votes count for zero?

WEGMAN: Their votes count for zero, right. And it also means that because of this winner-take-all rule, you have what are known as safe states and battleground states. Most states are safe states, which means the outcome is comfortably predictable in advance. Battleground states, you don’t know. What that means is the candidates spend all of their time and money and advertising and policy platforms focusing on those states. Now, those states can be as few as three or four, maybe as many as six to eight in a given year. The point is that it’s an extremely small fraction of the country and to have presidents and to have presidential candidates focusing almost exclusively on these segments of the country really does a disservice to representative democracy when you’re running for an office in which you have to represent the whole country. That’s really the primary distortion caused by the modern Electoral College. It has far more influence than the extra two electoral votes for Senate seats. Yes, Wyomingites count for more than Californians, but there are a lot more Californians and those 55 electoral votes given away under the winner-take-all rule are a lot more powerful than Wyoming’s three in terms of changing the outcome of the election.

FRANZEN: Thinking along those lines has led me to suggest, jokingly, that perhaps we could save a lot of money by conducting the presidential election in just the four or five battleground states.

WEGMAN: Right. Exactly, exactly right! Award all of the safe states to the candidate that we know is going to win them. And here’s the funny thing, and this is something else that most people don’t know about the Electoral College. The Electoral College is entirely a state-based system. The Constitution allocates to each state its number of electors, but beyond that, it’s entirely up to the states to do what they want. So your proposal, while it sounds funny, is actually is constitutionally permissible. And in fact, the states don’t have to let people vote at all for the president. You have no constitutional right at all as a citizen of this country to have any role in the election of your leader. It is up to the state legislatures to do it. They don’t have to let you cast the ballot, they can just decide for themselves whom to award the electors to. And many states did that at the founding and for the first several decades of the country. It wasn’t until the 1820s or ’30s, when the majority of states had switched to what we now assume as natural, which is popular vote for electors. To get at your point about the antidemocratic nature of the College, whatever the framers thought about that — and I think there’s actually a lot to dispute in that characterization of antidemocratic sentiment, and Akhil Reed Amar has spoken about this a lot — it certainly doesn’t function that way today, because you have popular votes for the electors in every single state for more than 130 years. 1876 was the last year that a state did not hold a popular vote for president, it was in Colorado that year, and it had just been admitted to the union at that time. We laughed when you suggested we maybe don’t have to hold elections at all, but states could absolutely do that and be well within their constitutional rights.

FRANZEN: Knowing all these problems and having seen in our lifetime an election go to the loser of the national popular vote twice, I think someone might just ask, “Well, why don’t we amend the Constitution? What’s the problem?” You alluded earlier to efforts to amend it. What has been the history of those efforts?

WEGMAN: What’s amazing is these efforts have all failed, obviously. We did actually come extraordinarily close to abolishing the College by a constitutional amendment in the late 1960s. The amendment passed the House of Representatives overwhelmingly, 339 to 70. And it looked like it probably would have enough support in the states to be ratified. And then it was filibustered in the Senate by three Southern segregationists who very well understood the benefit that they got from the winner-take-all rule in their states. They basically eliminated the voices of their black voters. And they knew that a popular vote would completely change the political calculus and their power in those states. So, we’ve come closer than we think and it’s been supported by people of all political stripes. Today, I think because we’ve had two elections in the last 20 years, both of which have gone to the Republicans winning the Electoral College while losing the popular vote, it feels like a very partisan issue and that makes it hard to pass at the state level. Obviously, you need to pass it through Congress by supermajorities in both chambers and then you need to have 38 states ratify it. That’s a heavy lift. Not counting the Bill of Rights, we’ve only had 17 amendments in the nation’s history. So I think an amendment is probably out of the question just because of the political difficulty of getting it done, but the amendment isn’t the only solution.

FRANZEN: That gets us to the National Popular Vote Interstate Compact — which is a mouthful, let’s just call it the Compact, for short. Akhil Reed Amar has spoken on this subject a great deal, and I’ve interviewed him on it for Los Angeles Review of Books. What’s your view on the Compact as an alternative to the constitutional amendment?

WEGMAN: Akhil and his brother Vikram have done amazing work on this and they came up with an earlier version of the Compact that’s now being adopted in states around the country. The Compact runs on the same basic idea as we were talking about earlier, which is that states can make their own decisions about how to award their electors. All but two states today use winner-take-all on a state level. The Compact gets states to commit to awarding all of their electors to the winner, not of their state popular vote, but of the national popular vote. And the key is, the states join a Compact, which means they are bound to do it when the Compact takes effect. The Compact takes effect when states representing a majority of electoral votes in the country sign on to it. If you put those two things together, what you get is a guarantee that every time the president will always be the candidate who wins the national popular vote. Fifteen states and the District of Columbia have joined the Compact so far for a total of 196 electoral votes; 270 have join for it to take effect.

FRANZEN: So the key takeaway for people to understand is it doesn’t take all 50 states for this to go into effect. It just takes a number of states equaling a majority of the electoral votes.

WEGMAN: That’s right. It doesn’t take all 50 states. It takes whatever number would equal 270 electoral votes. However, it affects the way that the candidates run their campaigns because it forces them to treat people living in all 50 states equally rather than focusing on this small batch of battleground state voters, and that’s really the key to it. A lot of the critics of this Compact say, “Oh, you’re taking away our voice.” And I say, “To the contrary, this gives you back your voice right now. Unless you live in a battleground state, the candidates don’t care at all about what you think.” But if they have to run a national popular vote campaign, they’re going to have to go all over the country and listen to voters and try to draw out voters that they never thought about or cared about before. Take California, your state, for example, four and a half million people in California voted for Donald Trump in 2016. That’s a lot of people, and not a single one of them mattered when it came time to cast the electoral vote because California, like most states, is a winner-take-all state and there are more Democrats than Republicans in California. But that doesn’t mean four and a half million people should be erased. So if you have a popular vote, the Republican goes to California and says, “Hey, I want not just those four and a half million, I want the other several million Republicans who didn’t even bother to come out to vote because they knew it didn’t matter,” and you would see this replicated across the country. Battleground state voter turnout is significantly higher than in safe states for the obvious reason that when people know their vote matters they come out to vote. So if you were to increase the national voter turnout nationally to the rate that it is now in battleground states, you’d be looking at 15 to 20 million more voters at the beginning. And that’s not even including other reasons that more people might come out to vote. I really think the whole idea behind the Compact is to force a change in the way that candidates have to run and the presidents have to govern, so that they now must focus on the entire country rather than just a sliver of battleground states, and that’s really crucial for an office whose job it is to represent the entire country.

FRANZEN: What you just explained goes to refute one of the principal objections to the Compact, which is that this will just benefit the big states and hurt the small states. What you’re saying is that the Compact re-enfranchises everybody, in big and small states alike.

WEGMAN: All those people in all those states, big and small and medium, are currently disenfranchised because the candidates don’t care about them and don’t reach out to them, don’t pitch policies based on what they want. Look at how statewide elections are run right now, say for governors. Gubernatorial candidates go all over the state. They don’t sit around and just vacuum up votes in the big cities, if they’re a Democrat, or spend all their time in the rural areas, if they’re a Republican. They go everywhere because that’s what smart campaigns do — they know that even if they’re going to lose in an area they want to lose by less. So the last chapter of my book consists of interviews with campaign managers of presidential campaigns for the last 20 or so years, in which I ask them, “How would you run a national popular campaign differently?” And they say, “We would go everywhere.” Of course, yes, you go to the cities to get votes because there’s a lot of people in the city, you also go to the rural areas because you want those votes, you go to the suburbs because you want those votes. Because when every vote matters and every vote counts the same and the most votes win, you want to get the most votes you can from everywhere. And you can actually map this, you can show where the candidates go in those states where those conditions apply and you find that they go everywhere people live. Does that mean they go more just to cities than to rural areas? Sure it does, it doesn’t mean that they go disproportionately to the cities, it means they go to the cities in proportion to how many people live there.

FRANZEN: Let me wrap this up by asking you, in the face of, let’s say, the controversy and the anguish over this archaic institution that has given us two presidents in our lifetimes that lost the national vote, is there any hope for reform? You talk about the arc of history of the United States over our 200 years has to a significant extent bent in favor of greater inclusion, greater participation, and greater equality. Do you see any hopeful signs that this may apply also to the Electoral College?

WEGMAN: Yes. I think the more that Americans start to understand the gap between their modern democratic values and actual functioning of some of our systems and our structures, the more they will push back against them. So that’s why you see, for example, the outrage over partisan gerrymandering. That’s why you see more and more people being upset about the Senate and the massive disproportionate effect of every state having two senators. Now, the Senate is something that, for better or for worse, we’re stuck with. It is made effectively unamendable by the Constitution’s own terms. So it’s important to remember that while certain things might not be able to be changed, at the same time the Electoral College is something that can be changed. Whether we’re talking about it happening at the level of a constitutional amendment, or whether it happens because of the National Popular Vote Compact, it’s going to happen sooner rather than later, because the American people are not going to tolerate popular vote-losing presidents much longer. I just don’t think in the 21st century, with virtually universal suffrage, that a system that elects the popular vote-loser for the biggest office in the land can continue to survive.

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Don Franzen is an attorney based in Los Angeles and the Legal Affairs Editor for the Los Angeles Review of Books.

Jesse Wegman is a member of the New York Times editorial board.

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Banner image: “USA ElectoralCollege” by Юджин Фишер is licensed under CC BY-SA 4.0. Image is cropped and darkened from original.

 

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