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.