Your weekly source for analysis and insight from experts at the Brennan Center for Justice

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The Briefing

Today is the “safe harbor” day — the deadline for states to determine who won their electoral votes. Next week the Electoral College formally will elect Joe Biden president. Donald Trump’s bid to overturn the election will be snuffed out. Again.

Rather than a cause for celebration or even relief, today should be a day to remember what a dysfunctional, anti-democratic institution the Electoral College is and why for the sake of American democracy, we should replace it with a national popular vote.

The key fact: Joe Biden handily won the election, with the biggest vote share for a challenger since Franklin Roosevelt in 1932. This time, at least, the Electoral College will choose the same winner as the voters. That’s the way it almost always has worked.

The Electoral College has been invisible except when it’s been catastrophic. If a few thousand votes in a few swing states had switched, Trump would stay in office despite losing the election by a wide margin.

Twice recently, in 2000 and 2016, the Electoral College installed in the White House the man rejected by the voters. It almost happened in 2004, too. If 60,000 votes had switched in Ohio, John Kerry would have been president even though George W. Bush easily won the popular vote. Can you name another country with an electoral system so prone to misfiring?

For years, supporters like columnist George F. Will argued the Electoral College made elections seem more decisive, conferring legitimacy on the winner. No longer. Narrow margins in a few key states, subject to lies, litigation, and after-the-fact power grabs, can muddy a clear win.

Even when the Electoral College “works,” it distorts. Savvy candidates focus only on a few swing states. Biden and Trump stumped in Pennsylvania as if they were running for state auditor. They ignored voters in New York, California, Illinois, and (until the end) Texas, unless they were raising money.

Swing state voters tend to be older and whiter than the rest of the country. So are the policies that result. Small states, too, disproportionately white and rural, get extra weight. For the country’s first 70 years, the Electoral College gave extra, indeed decisive power to slave states. Now it tilts against younger and more diverse voters.

As the country changes, the Electoral College will increasingly help entrench minority rule. Until this year, Democrats won the popular vote in seven of eight presidential elections, the longest streak in American history. Yet Republican presidents made six of nine lifetime Supreme Court appointments.

That’s a long-term recipe for illegitimacy.

The simplest but hardest way to address this is a constitutional amendment for a popular vote, something that actually passed the House a half century ago. More immediately, states can join the National Popular Vote Interstate Compact

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and agree to cast their electoral votes for whoever won the popular vote. Over two-thirds of needed states have done this.

As we press for reform of our politics at all levels, let’s not forget this most basic affront to democracy.

Democracy

Trump’s Tactics to Overturn the Election Could Have Staying Power

President Trump’s efforts to overturn the will of the voters are a troubling sign for future elections. Even though the federal government’s cybersecurity arm declared the election “the most secure in American history” and the Justice Department found no evidence that fraud would change the election’s outcome, Trump has found allies willing to support his claims and adopt his tactics. “A number of people have shown themselves willing to go along or at least being perceived of going along instead of just condemning the entire operation,” Wendy Weiser said. “It was not written off as it should have been.” // AP

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Supreme Court Preview: The Expanding “Unitary Executive” Theory

With oral arguments in Collins v. Mnuchin on Tuesday, we’ll have our first look at how the Supreme Court’s new 6–3 conservative majority might expand the power the president has over independent government agencies, increasing the potential for political interference in work those agencies do to protect public health, safety, and general welfare. The lawsuit challenges the Federal Housing Finance Agency’s leadership structure, a single director appointed by the president who can’t be fired without cause. If the Court were to find the removal-for-cause protection unconstitutional, it would make it easier for the president to terminate independent agency heads for insubstantial reasons. Martha Kinsella writes that the prognosis isn’t good. // Just Security

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20 Things We Learned About Money in Politics in 2020

2020 was rife with stories of how our political system prioritizes wealthy interests over the needs of the public. From campaign finance crimes to dark money getting darker, Brennan Center Fellow Ciara Torres-Spelliscy shares examples from the past year that demonstrate why we need to reform money in politics. // Read More

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Campaign Finance Victories in 2020 Elections

On the brighter side, campaign finance reform ballot initiatives passed in several states, demonstrating that voters are keen on limiting the influence of wealthy interests and increasing transparency in elections. Oregon voters overwhelmingly supported amending the state’s constitution to create caps on contributions to candidates, and voters in Baltimore County, Maryland, supported a measure creating a public financing program for local candidates. Reforms like these “will empower citizens to hold politicians accountable,” writes Ian Vandewalker. // Read More

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News

Terry-Ann Craigie and Ames Grawert on the economic impact of imprisonment // Off-Kilter podcast

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Michael German on the government’s xenophobic targeting of Asian American and Asian immigrant scientists // China Initiative Series

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Michael Li on upcoming redistricting battles // Mother Jones

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Taryn Merkl on bail reform in New York // Law360

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Faiza Patel on ICE and surveillance // Guardian

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Hernandez Stroud on how Covid-19 has changed the justice system // Crime Report

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Michael Waldman on Trump’s pardon power // NECN

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Have an issue you'd like us to cover? Feedback on this newsletter? Email us at [email protected]


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The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice.

Brennan Center for Justice at NYU School of Law

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New York, NY 10271

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