You know how sometimes, when you scroll through the Recent Diaries to see if anything looks interesting, you notice that odd one with a bazillion comments and very few recommends? And you think to yourself: That’s either an obnoxious troll or a crackpot who, abeit on our side, is an embarrassing nutcase. So strong the obnoxious trollery or embarrassing crackpottery, scores of Kossers had to jump in and deliver Original Poster a righteous beatdown.
Yeah, that was me, last Sunday, with my The Electoral College is Unconsitutional: The election challenge I would dearly love to see brought. 156 comments and 3 recs.
I return, bloody but unbowed, for another round. I post this second round, first, to give prominence to some great information brought to my attention in the comments. Second, I post to give a considered, condensed response to the counter-arguments posted in the comments.
I am not alone in these thoughts.
I begin by pointing out that I am far from a lone crackpot voice in the wilderness. In agreement is Leon Friedman, a constitutional law professor at Hofstra Law School, who among other things was named “Joseph Kushner Distinguished Professor of Civil Liberties Law.” He’s not just another lawyer, he’s not just a law professor, constitutional law is his specialty. Here is his curriculum vitae and here is the article he wrote for the Huffington Post, “Is the Electoral College System for Choosing our President Unconstitutional?” He concludes his article by urging “Citizens in the adversely affected states should bring the matter to a federal court.” If I’m a crackpot for urging a constitutional challenge to the Electoral College, I have good company.
Also of interest, a lawyer in Los Angeles has filed precisely this lawsuit, seeking to force the Electoral College to give the election to the winner of the popular vote. That was written up in a diary here. I would love to see Professor Friedman (and maybe other like-minded attorneys of stature?) support that lawsuit with an amicus brief.
My thanks to pdkesq for pointing me to these two citations.
The Argument for Striking Down the Electoral College as Unconstitutional
Because of the Electoral College, the presidential vote of a voter in a sparsely populated state counts more than the vote of a citizen of a densely populated state. For example, the vote of a person in Wyoming has roughly 3.6 times as much weight as the vote of a Californian.
It is well-established law that no state or local jurisdiction can pass a law, the effect of which is to give some citizens more voting rights than others. That violates the Equal Protection clause of the Fourteenth Amendment. The Supreme Court cases that made this law, established the principle of “one person, one vote,” are laid out in the Friedman article. It is also well established that any discriminatory law that would be forbidden to a state, under the Fourteenth Amendment, is also forbidden to the federal government (beginning with the 1954 case of Bolling v. Sharpe, the Court essentially imported 14th Amendment protections into the Fifth Amendment, to make those protections apply to federal law the same as state). Again, the Friedman article has the supporting citations.
Thus, under the Fourteenth Amendment, Ohio cannot pass a law giving the citizens of Republican-voting rural counties three times more votes than Democratic-leaning citizens of Mahoning and Cuyahoga Counties. Likewise, under the Fifth Amendment, Congress cannot pass a law giving Wyoming voters three times more votes than Californians.
And yet, with the Electoral College, that is precisely the discriminatory law we live under.
The Constitution is just a law. It must pass constitutional muster the same as any other law.
The fact that the discriminatory part, the Electoral College, is in the same instrument as the parts that prohibit discrimination, the Fourteenth and Fifth Amendments, poses no insurmountable barrier to a judicial fix. When one part of a law conflicts with another part of that law, the courts can and must interpret or reform the law to make it work harmoniously. Courts interpret or reform internally inconsistent laws all the time. In fact, Professor Friedman cites one instance in which the Supreme Court held that one part of the Constitution overrode another part of the Constitution.
There is in short ample legal ground and precedent to challenge the Electoral College as unconstitutional.
Indeed, there is far more precedent for this challenge, than for the landmark Supreme Court cases that found a right of privacy in the Constitution, without which we would not have a constitutionally protected right to birth control and abortion. And I don’t see anyone on this website rolling his or her eyes over the arguments that gave us Griswald and Roe v. Wade.
So, on to the counter-arguments raised in the comments to my first piece.
Argument against: The Constitution can’t be unconstitutional.
Hey, the Constitution did not come down to us from the hand of Moses. It’s a set of rules thought up by human beings, over the course of two centuries—the original, the several amendments and the Supreme Court cases interpreting the document. The Constitution has evolved, and now one part of it is flagrantly in conflict with another part.
A law in conflict with itself is no new phenomenon; courts resolve such conflicts all the time, through statutory interpretation or reformation. As noted above, from the Friedman article, that has happened in one instance already: the Supreme Court ruled that the Fourteenth Amendment overrode another part of the Constitution (the Eleventh Amendment) that conflicted.
Argument against: Obviously, the founders intended the Electoral College to operate the the way it operates. A court can’t interpret a law contrary to the drafters’ manifest intent.
Yes, it is the guiding principle of statutory construction that the court interpret the law in a manner that best achieves the drafters’ intent. But here we have drafters’ intent expressed not only in the original document, but in many amendments. Furthermore, over the century and a half we have had the Fourteenth and Fifth Amendments, those Amendments have been interpreted by the Supreme Court in a manner that most likely was not in the original contemplation of the drafters. Supreme Court cases interpreting the Constitution are law; they have the same effect as if their holdings had been drafted into the document originally.
(For example: Had the drafters of the Fourteenth Amendment been asked whether they intended the Amendment to give gay couples the same marriage rights as straight, I doubt they’d have answered in the affirmative. Yet that is now the law of the land, the Supreme Court using the principles set out in the Fourteenth and Fifth Amendments to achieve the result our society now recognizes as most consistent with the principles embodied in those amendments.)
And let’s please acknowledge this other glaring fact, when we talk about honoring the founders’ intentions when they thought up the Electoral College. The founders intended that the voters would vote for smart electors, who “possess the information and discernment requisite to such complicated investigations.” [Hamilton, Federalist Papers No. 68.] That is of course not how the Electoral College operates in real life. The names of the electors aren’t even widely public information, let alone facts by which we can judge those persons’ “information and discernment,” so as to entrust them with the choice of president.
Nor of course, do the electors exercise independent judgment. Some states even forbid the electors from voting contrary to the popular vote in their states. So enough already about why those smart smart founders gave us the Electoral College.
Argument against: The drafters of the Fifth and Fourteenth Amendments did not intend those amendments to abolish the Electoral College. A court can’t rule contrary to the amendment drafters’ intent.
Yes again, I agree that the drafters of the Fifth and Fourteenth Amendments probably never intended or expected them to be used to abolish the Electoral College. One commenter cited the principle that the drafter of an amendment is presumed to have known all the other parts of the law being amended: had the amendment drafters intended the amendment to abolish the Electoral College, the amendment would have abolished the Electoral College specifically. That presumption of intent, the argument goes, militates against construing the Electoral College as contrary to the amendments.
That presumption about drafters’ intent is indeed one of the principles courts use as guidance when interpreting laws. But it is a presumption only. It is not irrebuttable. It has persuasive weight, but it is not dispositive.
That argument is particularly unpersuasive when applied to interpretation of the Constitution. You think the drafters of the Constitution deliberately inserted “penumbras” between the lines of the text, intended the Supreme Court to divine therein a right of privacy? The Constitution has been effectively amended over time through court interpretation. That’s the law, and it’s a good thing. Strict constructionists beg to differ, but—until Trump’s Court overturns the last six decades of jurisprudence--they don’t have the law on their side.
Argument against: If you take this argument to its logical conclusion, wouldn’t the Supreme Court also have to remake the Senate? Doesn’t the rule of two equally powerful senators from each state violate equal voting rights, the same as the Electoral College?
Well hell yes. If I had my druthers, under the principle of “one person, one vote,” the Supreme Court would give senators voting rights proportional to the population in the states they represent, and outlaw gerrymandering too.
I would however, as a compromise, be willing to let the Senate stay as is, if we get rid of the Electoral College and gerrymandering. That is not hypocritical or inconsistent.
The defense most often mounted for the Electoral College’s unequal treatment (see last section below) is that (i) the founders intended to give the small states more voting power than the large states, in order to protect minority states from the tyranny of majority states and (ii) such protections are enlightened and fair. But even if you find that argument persuasive, that’s not the end of the debate. There are still the competing interests of equal protection to consider. That then gets you into the exercise of balancing equities and competing goals. If the governmental body can show a proper governmental purpose, a law otherwise discriminatory might still pass constitutional muster. But you have to weigh the allegedly proper governmental purpose against the competing goal of equal protection.
So let’s say the Supreme Court thinks “minority states” should have some extra protection, that that is a proper governmental purpose behind the Electoral College. It can then be pointed out that the minority states get plenty of over-representation with their two senators. On top of that, by long-standing custom, the Senate affords the minority party even more protection through the filibuster. Surely that’s plenty enough minority protection.
A compromise, keeping the Senate while abolishing the Electoral College, balances those competing goals in a manner that is more than fair to the so-called “minority states.”
The point of this diary is not to argue the merits of the Electoral College.
If you think the Electoral College is brilliant, the bees’ knees, good for you. I trust and hope you are in the minority on this website. You are welcome to post your thoughts along those lines, but if I don’t respond, I’m not agreeing. I may just not have the energy or interest to take on that argument here.
The premise of this diary is that the Electoral College is a travesty; now the question is, do the tools exist to challenge it at the Supreme Court? My thesis is, there is ample law, precedent, for that to be not only an argument you can make with a straight face, but an argument that should win.
My thanks to all who read and considered and perhaps dropped a response.