JULY

**7, 2020**

Meyerson on TAP

Majority Rule? Not Yet, Fellow Americans

Yesterday, the Supreme Court unanimously ruled that in matters of
presidential elections, the people are supreme. Well, at the state
level.

Monday's ruling affirmed the power of states to punish presidential
electors who don't vote for the candidate who wins the state's
popular vote in our quadrennial presidential elections or to replace
them with electors who will.

In the states, then, the people rule. In the United States, not so
much-if at all.

The Court's ruling leaves in place the Electoral College, inasmuch as
the case before the Court wasn't about the Electoral College's
existence. But an increasingly absurd and blatantly undemocratic
existence it is. In two of our last five presidential elections (2000
and 2016), a plurality of Americans voted for candidates (Al Gore and
Hillary Clinton, respectively) who lost in the Electoral College to
candidates (George W. Bush and Donald Trump, revoltingly) who'd
received fewer popular votes than they. Which is to say, the Electoral
College negates the first precept of democracy: The majority (or at
least, the plurality) rules.

To restore some semblance of democracy to our Republic, 15 states and
the District of Columbia have enacted laws requiring that their electors
vote for the winner of the national popular-vote contest, with the
proviso that that compact go into effect only when enough states have
joined the compact to ensure the Electoral College victory of the
popular-vote winner. So far, those 15 states plus D.C. amount to 196
electoral votes, well shy of the 270 needed to win in the Electoral
College.

Is there a way around the Electoral College, a piece of 18th-century
handiwork put into the Constitution at a time when that document's
authors thought that only a relative handful of elite Americans would
actually know anything about the presidential candidates, and when the
Constitution's Southern authors feared straight-out popular
presidential elections could favor Northern candidates not necessarily
predisposed to slavery?

As the Electoral College favors small states (since each state gets two
extra votes reflecting its Senate representation), repealing the
Constitution's Article II provision that requires its use would prove
difficult. As three-quarters of the states must ratify any
constitutional change, it would take just 13 smaller states to block the
College's abolition.

In 2018, though, writing in these pages
,
Erwin Chemerinsky, a constitutional law scholar and dean of the UC
Berkeley Law School, argued the Court's one-person-one-vote ruling
enforcing the Fifth Amendment's establishment of equal justice under
the law renders the Electoral College unconstitutional. No such case has
yet come before the Court and it's by no means clear that
Chemerinsky's argument would prevail. But it certainly should be
tried.

For that matter, if Democrats ever sweep the nation in an election, they
should try for an out-and-out repeal of that Article II provision. Most
Americans, if they ever think about it, reflexively favor the idea of
popular sovereignty, even though Republicans are turning against it-so
far, implicitly rather than explicitly-as the nation's electorate
becomes more racially diverse. The campaign could be framed as letting
the people, rather than some obscure institution, decide. The real
American deep state, after all, which thwarts the ability of Americans
to govern themselves by the principle of majority rule, is the Electoral
College and the U.S. Senate.

Americans are also more conscious of their federal elected officials
than their state-level officials. Compare the number of Americans who
can name the vice president with the number who can name their
lieutenant governor. But under our current system, the people's vote
directly determines who their lieutenant governor will be, but not who
their vice president will be.

The Electoral College? As Voltaire once said,

**écrasez l'infâme**.

~ HAROLD MEYERSON

Follow Harold Meyerson on Twitter

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