Progressives Are Wrong To Oppose the Electoral College | Opinion

With the presidential electoral clock inexorably ticking down—today, states must send their votes to Washington, D.C. to receive a presumption of legality—progressives might finally admit to the virtues of the Electoral College. While progressives wish to discard the Constitution's two centuries-old method for choosing presidents, they should concede that its dispersed, state-based system deters the type of widespread electoral fraud alleged by Donald Trump and his lawyers. Liberals should drop their efforts to unconstitutionally evade the Electoral College; they should fight their battles within the original ground rules set out by the Founders.

No one doubts that the Constitution creates a peculiar system for choosing presidents. During the adoption of our national charter, the Framers rejected several obvious methods. They rejected congressional selection because they wanted an independent, energetic executive to check the legislature. They spurned national popular election because they worried that a demagogue might seize power. But they also wanted the people to enjoy the primary voice, as mediated through the most important governments of the day, the states. In the very definition of compromise, the Founders created a system where each state would select electors, equal to the combined number of House members and senators, who would meet in their states and vote for president and vice president. Although all states now choose their electors by popular vote, the Constitution provides that the power of selecting electors is "in such Manner as the Legislature [of each state] shall select."

In the 2020 election, the Electoral College did not make a difference. President-elect Joseph Biden won the national vote, 81,271,124 to 74,209,247, and the electoral vote by 306 to 232. But the Electoral College remains open to attack because it can select a president who lacks the support of the majority of the American people. A number of candidates have won the Oval Office with only a minority or plurality of the electorate, such as George W. Bush and Richard Nixon—almost guaranteeing that progressives would blame the Electoral College for much of America's ills. Progressive outcry against the Electoral College did not reach such a fever pitch before, when it produced victories for Democrats such as Bill Clinton, who won only pluralities in both 1992 and 1996, John F. Kennedy in the 1960s, or Harry Truman in the 1940s.

However, the Electoral College finally crossed the line into the progressive rogues' gallery the moment it elevated Donald Trump to the presidency. Even though Hillary Clinton won the popular vote by 48 to 46 percent, Trump won the electoral vote 304 to 227. The New York Times immediately called the system "antiquated" and called for its replacement with a direct national vote. The Electoral College, it argued, "is more than just a vestige of the Founding era; it is a living symbol of America's original sin" because it originally advantaged slave states. Hillary Clinton agreed that the system "needs to be eliminated"—as did Al Gore, who won the popular vote in 2000 by 500,000 but lost the Electoral College vote to Bush by a count of 271 to 266.

Progressives are doing more than complain. They have pushed something called the National Popular Vote Interstate Compact (NPV), in which states have agreed to award their electoral votes to the candidate who wins a majority of the nationwide vote, regardless of who wins the popular vote among their own citizens. While the agreement does not go into effect until the number of states representing enough votes to pick a president have agreed to it (i.e., states adding up to 270 electoral votes), many blue states have signed up, including not just the largest—California, New York and Illinois—but also some of the smallest—Delaware, Hawaii and Rhode Island. Apparently, partisan allegiance can overcome constitutional self-interest (maybe these small states will try to give up their Senate seats next).

While the NPV arguably violates the Constitution's prohibition on interstate treaties, progressives ought to drop their efforts against the Electoral College for more profound reasons. The Electoral College may have initially given Southern slave states an advantage in presidential elections (because of the notorious Three-Fifths Clause that counted a slave as three-fifths of a white person, for counting population), but the Civil War and the Reconstruction Amendments eliminated that grievous flaw. If progressives oppose the Electoral College because it does not hew to simple majoritarian democracy, they have a lot more to worry about. The Senate, which treats each state as equal, violates pure majoritarianism in almost every major federal act—from enacting new laws, confirming Cabinet appointments and judges, to approving treaties and even constitutional amendments. Progressives should favor such super-majority procedures, which generally promote more reason and less passion in government, demand greater consensus throughout society for public policy, and protect minority rights.

Another reason to favor the Electoral College became far more apparent in the last two Trump elections than perhaps at the time of the Founding itself. Our system for picking presidents does not depend on the agreement of the current resident of the White House; indeed, the federal government has little role in the operation of the Electoral College. The Constitution instead disperses the power to choose the president to the states—which themselves, under state law, further delegate the operation of elections to the county level. Unlike other countries, no single national agency supervises elections in the United States.

Some might find that chaotic, but it produces an institutional feature much sought after in an age of pandemics, economic instability and terrorist attacks: resilience. Our Constitution creates a dispersed, decentralized electoral system that becomes tougher to hack or defraud. In 2016, the claim that the Russians had helped Trump steal the election foundered on the fact that they would have had to influence numerous voters across multiple counties and states, without knowing in advance which ones would prove decisive. Similarly, Trump's claim four years later that Democrats stole the 2020 election runs smack into the same problem—his lawyers cannot show that Biden supporters committed election fraud in sufficient numbers, across several counties, in multiple states such as Wisconsin, Michigan, Pennsylvania, Georgia and Arizona, at the same time.

Progressives often see Washington, D.C. as the solution to society's problems. But after four years of Republican-led government, they came to appreciate the benefits of federalism as they made the states the loci of their "resistance." The 2020 election should reinforce this foundational lesson of our constitutional order, even as progressives hope to use the Biden presidency to undermine the roles of the Electoral College, the Senate, the Supreme Court and of the limited nature of our national government itself.

John C. Yoo is Emanuel S. Heller Professor of Law at UC Berkeley School of Law, a visiting fellow at the American Enterprise Institute, a visiting scholar at the Hoover Institution and the author of the new book, Defender in Chief: Donald Trump's Fight for Presidential Power.

The views expressed in this article are the writer's own.