Justice Thomas on the Electoral College

My first thought after the election was that my next big project should be on the Electoral College. My second thought (after some research) was that there was nothing new to say.  The flaws in that system are pretty obvious, but it’s also obvious that the odds of moving to something else are slim. (I can say some new things about the history of the EC, but nothing that moves the needle.)

Then there was a third thought:  Do we need to rethink some premises about constitutional law in given that the Electoral College has now produced a popular-vote loser as President in two of the last five elections?  Let’s think about something that Justice Thomas said in his dissent in U.S. Term Limits v. Thornton, which held that states could not impose term limits on members of Congress.

The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation. Thus, the amendment provision of Article V calls for amendments to be ratified not by a convention of the national people, but by conventions of the people in each State or by the state legislatures elected by those people. Likewise, the Constitution calls for Members of Congress to be chosen State by State, rather than in nationwide elections. Even the selection of the President-surely the most national of national figures-is accomplished by an electoral college made up of delegates chosen by the various States, and candidates can lose a Presidential election despite winning a majority of the votes cast in the Nation as a whole. See also Art. II, § 1, cl. 3 (providing that when no candidate secures a majority of electoral votes, the election of the President is thrown into the House of Representatives, where “the Votes shall be taken by States, the Representatives from each State having one Vote”); Arndt. 12 (same).

In short, the notion of popular sovereignty that undergirds the Constitution does not erase state boundaries, but rather tracks them. The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify. See Art. V (providing that proposed amendments shall take effect upon ratification by three-quarters of the States). At the same time, however, the people of each State retained their separate political identities. As Chief Justice Marshall put it, “[n]o political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.” McCulloch v. Maryland, 4 Wheat. 316, 403 (1819).

This is the only example I can find of a Supreme Court opinion (albeit a dissent) that reasons from the Electoral College to some conclusion.  There are opinions that reject doing so, most notably the “one-person, one-vote” that said states could not replicate the structure of the Senate or the EC. I wonder, though, what happens if we take Justice Thomas’s idea further, but I need to give that more thought.

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7 Responses

  1. Brett Bellmore says:

    “Do we need to rethink some premises about constitutional law in given that the Electoral College has now produced a popular-vote loser as President in two of the last five elections?”

    I would say that, as a practical matter, this is a dead issue until the party in control of most states feels it’s bite. Or, at a minimum, an outcome much more grossly non-democratic than this year’s election, to the point where the party controlling most states was embarrassed.

    As it is, Republicans have no reason to find the Electoral College objectionable, and Republicans control most state legislatures, as well as both chambers of Congress, rendering any amendment opposed to their interests dead.

    And the popular vote was not nearly so one-sided that Republicans could not reasonably believe that, if both candidates had been trying to win the popular vote, rather than in the Electoral College, Trump might not have won. So, even to the extent they didn’t believe the EC legitimate, they have no particular cause for embarrassment.

    Rather, they look at those maps that color the country according to who led, and are thankful that they are not governed by the cities Republicans mostly don’t live in.

  2. Joe says:

    It would be an interesting thought experiment to imagine what Republicans would have done if Kerry won Ohio & was the electoral vote winner in 2004. As to Trump winning the popular vote, the totals were run up in two states which he lost by huge margins. Doubtful.

    Ray v. Blair “reasons from the Electoral College to some conclusion” in some fashion. The case actually is about regulating electors. It cites MCPHERSON v. BLACKER., which also concerns presidential electors. It has an interesting section on how the “original expectation” of the framers was belied by practice.

    It also should be noted that the winner take all system in place in nearly all states is not obligatory. In 1796, John Adams won in part because individual electors put him over the top. This motivated a change in the practice for the 1800 election. If Clinton won Pennsylvania and Michigan — as possible as various scenarios especially given the narrow differentials — Trump could have won (avoiding a tie) by winning one elector in Maine (which a map I viewed recently shows he did).

    The Electoral College doesn’t necessarily prevent a rule where electoral votes are set depending on popular vote totals — the independent elector concept as Ray v. Blair noted died early. So, states could set rules to deal with that somehow. The states would still have the say there, so Thomas’ comments would hold. Of course, the 5-4 result shows the possibility of split opinions.

    • Brett Bellmore says:

      “As to Trump winning the popular vote, the totals were run up in two states which he lost by huge margins. Doubtful.”

      Under the Electoral College system, campaigning in a state you are certain to lose is a waste of effort, even if it would be quite fruitful in terms of votes. Yes, the total was run up in states he lost by huge margins. States he didn’t bother campaigning in because it would have been pointless.

      But, if the popular vote mattered, it wouldn’t have been pointless. Even Republicans in California would have counted towards victory.

      Both candidates would have run quite different campaigns if Presidents were elected by popular vote. It is rather dubious to be certain that somebody who won under the rules as they were, would confidently have lost under different rules.

      Indeed, winner takes all is not mandatory, and at least a couple states do not allocate their electors in that manner.

      • Joe says:

        I used the word “doubtful.” The word means it is possible but to me unlikely.

        Your comments doesn’t change my mind. If the margin of victory was fairly close, fine, but it was not. And, it is not like people in California and NY were not aware of the various things that guided the others. Trump and Clinton received broad coverage and they are both major media markets. I myself in NY heard anti-Clinton ads. It is unclear what specific thing Trump would have did to make up such large numbers.

        Again, it’s possible, but does not seem probable.

        • Brett Bellmore says:

          What would make up such large numbers is that Republicans in places like California, where defeat is certain, would actually have a reason to bother voting.

  3. Paul Adcock says:

    No, the Electoral College makes it so that, if half the country’s population or more, is located in 20% of the country’s space or less, then if that half votes one way, then they can outvote the other 80%, which may make the other 80% think they might be better off forming their own country. Hence something like the Electoral College to make sure that each state is counted.

  4. Phil says:

    “I wonder, though, what happens if we take Justice Thomas’s idea further, but I need to give that more thought.”

    Would that it should happen! Imagine: the Ninth and Tenth Amendments would have meaning once again.