Not a good look for a former Justice Department chief to start sputtering about drastic changes to the Constitution because it happened to produce one outcome he didn’t like, but Holder’s never cared much about letting his partisanship show. Somewhere in an alternate universe, 107,000 votes in Michigan, Wisconsin, and Pennsylvania went the other way and this guy spent his Friday evening assuring Bill Maher that “the system worked.”
More liberals will come around to this idea in time, though, and not just out of simple butthurt over Clinton’s loss. The electoral college is an affront to a movement that rarely imagines a form of centralized authority that it doesn’t like.
The point of the Electoral College is simple: to restrict the power of the majority. There’s a tendency to forget that majority rule is only half of a free country — the other half is the protection of the rights of the minority, of the dissenters. This is why our federal government has two legislative houses instead of one. The House of Representatives is filled on the majority-rule principle, with greater power given to larger states; the Senate, on the minority-protection principle, with equal power given to each state no matter its size…
Remember: The constitution intends that most laws be made on a scale much smaller than the federal government, where the individual voter has, proportionally, a much greater say, and where local problems can be dealt with without affecting unconcerned strangers. The federal government is the federation of one level of distinct law-making units — the states — and a direct presidential election would mean that problems unique to sparsely populated parts of the country would be irrelevant to the president.
That’s what the Founding Fathers decided, anyway.
Two points on the practical side of this. First, although the left will console itself that Clinton would be president if the popular vote had been decisive, we don’t know for a fact that that’s true. It’s like imagining how a basketball game might have gone if you replayed it but eliminated the three-point line this time. The entire strategy of the game would have changed. Clinton probably would have won, I’d guess, given that she’ll end up with something like a two-million-vote cushion when all the ballots from Tuesday are finally counted, but we just don’t know. What might Trump have done differently? Brandon Finnigan wonders.
There are a lot of red voters in giant blue states like California, Illinois, and Trump’s home base of New York. He didn’t bother wooing them because, under the current system, it would have been a waste of resources. Those states were always going blue; better to spend time in the Rust Belt, where he was competitive, instead. Under a new system that uses the national popular vote to choose the president, that calculus would have flipped. Who wins if Trump had made a dozen visits to upstate New York and conservative areas of California, etc, instead of to Michigan? Dunno.
Second, when Holder says that he needs a constitutional amendment to do this, that’s both true and false. To literally abolish the electoral college, you do need an amendment. If, however, all you want to do is make sure the popular-vote winner becomes president, there’s a shortcut: Article I of the Constitution leaves it to the states to decide how their electors are awarded. Nothing requires them to give their electoral votes to whoever won their state on election night. Many Democratic state legislatures, seeking to exploit that, have already passed laws over the years that agree to award their electoral votes, winner take all, to whoever wins the national popular vote so long as enough other states have passed similar laws to ensure that the popular-vote winner will receive at least 270 EVs and therefore will become president. A state with a law like this in effect might see a Republican get the most votes in that state on election day but its electoral votes would be awarded by law to the Democrat if the Democrat won the national popular vote. If enough states agreed to the scheme, they could collectively ensure that the popular vote is decisive. That’s an imperfect solution for Holder, I assume, because those state laws could always be repealed once the other party takes control of the state legislature. Repealing a constitutional amendment would be much harder. But this is what some quarters of the left increasingly will be looking at going forward to ease their angst over Trump’s win.
There’s a hitch to the plan, though. Namely, Democrats have been utterly devastated in state elections during the age of Obama. They’re not close to having the power right now to make this statutory popular-vote scheme a reality. In fact, a Twitter pal who’s been keeping count made a fascinating point this morning: The GOP now controls both chambers of 33 state legislatures — just one shy of what they’d need to be able to call for a constitutional convention under Article V. Holder might want to keep that in mind the next time he decides to try to move the Overton window on big-picture changes to the constitutional order. There is a party that’s surprisingly close to being able to do that (although not yet so close to getting those changes ratified, as that would require 38 states, not 34). And it ain’t his.