The Electoral College Isn't Supposed to Work This Way

Caplin & Drysdale’s Trevor Potter authored the January 6, 2021 op-ed “The Electoral College Isn’t Supposed to Work This Way” for The New York Times. Below is the full op-ed, and please visit this link to view the op-ed as it appears in The New York Times.

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The 2020 presidential election has been a disaster for people who think the Electoral College is still a good idea. Joe Biden’s clear victory has been followed by attempts by the incumbent president to induce Republican legislators and other elected Republican officials in five states he lost to ignore the certified vote counts in their states and substitute their partisan preferences for the voters’ decision. Now Congress will formally receive the electoral votes, after a series of attempts to subvert the democratic process, all made possible by the Electoral College.

An early salvo was a suit filed in the U.S. Supreme Court by the State of Texas and supported by 126 Republican House members and 18 Republican attorneys general asking the court to throw out the electors chosen by those same five states because Texas said it did not like the way they conducted their elections.

Representative Louie Gohmert of Texas filed suit asking the courts to declare that Vice President Mike Pence has the legal right to pick the next president himself under the 12th Amendment — by ignoring the electoral votes for Mr. Biden cast by those five states. Instead, the Gohmert suit asks Mr. Pence to replace them with “votes” cast by the losing Trump elector slates in those states.

In response to public pleas from President Trump, Republican Senator Josh Hawley of Missouri has announced that he will join Republican members of the House in objecting to the votes of some states cast for Mr. Biden, thereby requiring separate votes by the House and Senate on those electors. This, in theory, could result in a deadlock that could be broken by the House voting — with one vote for each state delegation — for president, resulting in the election of Donald Trump to a second term after losing in both the popular vote and the Electoral College. The fact that Democrats hold a majority in the House makes this outcome unlikely, of course, but it is a viable gambit for future elections.

When the Electoral College was created, many conceived the United States as a confederation of “sovereign states.” And only a small percentage of the adult population could vote at all — property-owning white males in many states — and senators and the president were not elected by popular vote. Today the country is one of the longest-lasting democracies in the world, with almost all adult citizens entitled to vote for the president and members of Congress — our Constitution and body politic are not what they were in 1787.

The presidential election is really 51 elections, each conducted and certified by its jurisdiction. Those who support the continued use of the Electoral College system say that the states “speak” to one another through it and so it performs a vital role in promoting national unity and the constitutional system.

But the multiple challenges to the votes of the people this year — expressed through the states and their votes in the Electoral College — teach us that the Electoral College is a fragile institution, with the potential for inflicting great damage on the country when norms are broken. Many of the attempts to subvert the presidential election outcome this year are made possible by the arcane structure and working of the Electoral College process and illustrate the potential for the current Electoral College to promote instability rather than the stability the framers sought.

When some state legislatures were pressed by President Trump to consider changing the outcome of the election, they all declined — this time. But what would have happened if a majority of legislators in one or more states had decided to overrule the voters and “reassert” their constitutional authority to choose electors? The Electoral Count Act of 1887 gives the final say to governors — the electors they certify are entitled to the presumption of legitimacy. What would have happened if some of the governors of the states Mr. Trump targeted had given in and certified Trump electors despite the official vote count in their states for Biden? We would have had a constitutional crisis of the highest order, calling into question our national commitment to democratic elections.

So as some Republicans have persisted in the view that a legislature or governor could have certified electors other than those chosen by the people and certified by state election officials, they have shown the Electoral College to be potentially dangerous. The possibility that politicians of either party could change an election’s outcome through postelection manipulation of the Electoral College is destabilizing.

And the idea that the vice president, sitting in the chair as presiding officer of the joint session of Congress to “count the electoral votes,” could decide on his own to ignore electors certified by the states and replace them with impostors certified by no one leads straight to the end of democracy. The push by Senator Hawley and Representative Gohmert and other Republicans to challenge duly certified electoral votes and attempt to have the citizens and states they represent be disenfranchised is another path to the same destination.

All of this will, and should, propel calls for modernization of the Electoral College. Many will seek its abolition and replacement by a single nationwide poll. But at the very least, the irrational intricacies of the 1887 Electoral Count Act should be replaced by a uniform system guaranteeing that the popular vote in each state controls the ultimate allocation of that state’s electors. The 2020 election has highlighted the destabilizing tendencies in the current system and the need for reform.