Let the People Pick the President: The Case for Abolishing the Electoral College

by Jesse Wegman

At 4:43 a.m. on November 9, 2016, Micheal Baca, a 24-year-old Democratic presidential elector from Colorado, sent an urgent text message to a friend. “I have a plan,” Baca wrote. In retrospect, it was completely insane, but these were insane times. A few hours earlier, Donald Trump, the Republican nominee for president, had stunned the world by pulling out what may be the most improbable election victory in American history. Trump was losing the popular vote to Hillary Clinton, the Democratic nominee, by more than two million votes, a margin that continued to grow as late returns rolled in. But he’d won where it counted, in the Electoral College. Or he had appeared to. Baca, a former marine who was earning a living in Denver that fall as a driver for Uber and Lyft, had no political experience. He knew one thing, though: You might think you’re voting for the president when you cast a ballot, but you’re not. You’re voting for Micheal Baca, or his Republican counterpart. Technically, the presidency wouldn’t be decided until the 538 electors voted, as they were scheduled to do on December 19 in state capitals around the country. The scheme came together quickly in Baca’s mind, and he started testing it out. In a text to a fellow Democratic elector in Washington, Bret Chiafalo, he wrote, “We can avoid Trump. But will need 37 Republicans to defect. Call me crazy but this needs to work.” “It’s a Hail Mary dude,” Chiafalo wrote back. “But it’s all we got.” In regular years, the el...

December 24, 2020. Page 4.

The problem was that the Electoral College has almost never operated as Alexander Hamilton pictured it would. Not since 1792 have electors been independent, deliberative actors who saw their task as picking the fittest person for the job. There isn’t even one single body of electors. Instead, each presidential candidate has his or her own “slate” of electors tapped by local party leaders for nothing but their partisan loyalty. Whichever candidate wins a state’s popular vote sends all of his or her electors to the state capital, where they cast their ballots for that candidate. And just in case any of them should get a notion to vote for someone else, most states have laws prohibiting them from doing so. In other words, electors are today, as they have nearly always been, obedient partisan hacks, rubber stamps for their party’s candidate. But none of that mattered in the fall of 2016.

December 24, 2020. Page 5.

According to multiple news reports at the time, the possibility was alarming enough to some inside the Bush campaign that there was discussion of a public relations blitz to convince electors to vote for the popular vote winner. It would include newspaper ads, public appeals to local business and community leaders and influential members of the clergy, as well as interviews with radio and TV personalities. The idea, according to an article in the New York Daily News, was to capitalize on the anticipated “popular uprising” against the Electoral College’s “essential unfairness.” The media would help fan the flames, an unnamed Bush aide was quoted as saying, “because the will of the people will have been thwarted.”17 The Electoral College and the popular vote did indeed split that year, but in the opposite direction—Gore won the popular vote by more than half a million votes, while Bush eked out a victory in the Electoral College.

December 24, 2020. Page 11.

In the end, only one elector broke her pledge—Barbara Lett-Simmons, a Democrat from Washington, D.C., who withheld her vote from Gore in protest of the District’s lack of representation in Congress.

December 24, 2020. Page 12.

Even President-elect Trump agreed a popular vote would be better. In an interview on 60 Minutes five days after Election Day, Trump said, “I would rather see it, where you went with simple votes. You know, you get 100 million votes, and somebody else gets 90 million votes, and you win.”23 (Two days later he tweeted, “The Electoral College is actually genius in that it brings all states, including the smaller ones, into play.”24)

December 24, 2020. Page 13.

The conservative narrative says, in brief, that the founding fathers got it mostly right. They didn’t trust unfettered democracy, and believed it was necessary to channel and constrain the people’s voice in order to prevent a tyrannical majority from trampling the rights of minorities. Some of these constraints were good, like a two-tiered system of government with checks on majorities and filters of the popular will. Others were not good, like the denial of voting rights to nearly everyone but white male property owners. Many of these restrictions have been lifted, and while most modern conservatives agree with those changes, they were nearly all controversial at the time that they were made. Since the tendency of these reforms has been to remove checks against direct popular rule, any new reforms, like abolishing the Electoral College, are best approached with caution and skepticism. The liberal narrative, on the other hand, emphasizes the egalitarian ideal at the heart of the Declaration of Independence. We are all created equal, and we should govern ourselves that way. Yet for most of our history, those were just words on parchment—the founders erected barriers to democracy not because of legitimate constitutional principles but because of immoral prejudices. When those barriers have been eliminated, as has happened in various spurts of moral progress throughout our history, it is cause for celebration. Democratic legitimacy depends, at its core, on all votes being tre...

December 24, 2020. Page 15.

During the same period, states began to include regular citizens more directly in picking the president. In 1800, a majority of state legislatures chose their state’s electors themselves, with no input at all from the voters.31 But as some states started to adopt direct voting for electors, it became politically impossible for the others not to follow suit. By 1832, all states but one, South Carolina, had adopted a popular vote for their presidential electors.

December 24, 2020. Page 16.

Maybe this is the real American exceptionalism: our nation was conceived out of the audacious, world-changing idea of universal human equality. And though it was born in a snarl of prejudice, mistrust, and exclusion, it harbored in its DNA the code to express more faithfully the true meaning of its founding principles. Over multiple generations, and thanks to the tireless work and bloody sacrifices of millions of Americans—some powerful but most just regular people who wanted to be treated the same as everyone else—that code has been unlocked, and those principles, slowly but surely, have found expression.

December 24, 2020. Page 19.

We are quicker to notice the antidemocratic nature of institutions like the Senate, which was not meant to represent the people in the first place, but which has only grown more skewed as Americans cluster more tightly in a handful of states. And we are quicker to denounce partisan gerrymandering, an age-old practice in which lawmakers draw warped district maps to entrench themselves and their party in power, no matter what voters want. In both of these cases, there’s not much we can do. The Senate, which is effectively unamendable by the Constitution’s own terms, is here to stay. So are partisan gerrymanders, which have become more distorted than ever with the help of modern technology, but which the Supreme Court has refused to block. Then there’s the Electoral College. It too violates the core democratic principles of political equality and majority rule. We may all be eligible to vote for president now, yet all of our votes do not count the same, and the candidate who gets the most votes can lose. That brings us to the central point of this book: if the arc of American history bends toward more equality, more participation, and more democracy, then the national popular vote is the last major point on that arc. The Electoral College is the final obstacle remaining from the imperfections and built-in inequalities of the nation’s founding. And, unlike the Senate and partisan gerrymandering, we can do something about it.

December 24, 2020. Page 20.

People have been trying to answer that question for more than two centuries. Since the first proposed amendment to the Electoral College was introduced in Congress in 1797, there have been more than 700 attempts to reform or abolish it—more by far than for any other provision of the Constitution. Only one has succeeded: the Twelfth Amendment, which was ratified in 1804 to fix a technical flaw in the College’s design but left it otherwise intact.

December 24, 2020. Page 20.

Especially after the failed effort in the 1960s, when American politics was far less polarized than today, and there was no simple partisan divide over the issue, it’s clear that a constitutional amendment is not in the cards. But there may be another way. It’s called the National Popular Vote Interstate Compact—an agreement among states to award all of their electors to the winner of the national popular vote, rather than the winner of their statewide vote. The compact will take effect when it is joined by states representing a majority of electoral votes, 270, thus guaranteeing that the candidate who wins the most votes in the country becomes president.

December 24, 2020. Page 21.

The ingenuity of the compact is that it doesn’t touch the Constitution. Its target is the statewide winner-take-all rule. Currently in use by 48 states (Maine and Nebraska are the exceptions), this rule is what makes presidents out of popular vote losers. It incentivizes presidential campaigns to ignore more than 100 million American voters living in noncompetitive states, turning what should be a national electoral contest into a series of bitter, hyperlocal brawls. It focuses nearly all campaign spending and policy proposals on a few battleground states, where even a small shift in voting can lead to an electoral jackpot for one side or the other. That familiar red and blue map we all obsess over every four years? It’s nothing but a visual representation of state winner-take-all rules, with each state stamped Democratic or Republican, as though that is its “true” identity, regardless of how many voters from the other party cast a ballot there. This is bad for democracy, and it should concern all Americans, no matter where they live or which political party they support. In contrast, when candidates know that all votes are equal, and they need a majority of them to win, they are forced to seek the support of all Americans and craft policies that appeal to as many as possible. The popular vote compact was launched in 2006 and got its first member state, Maryland, the following year. As of October 2019, 15 states and the District of Columbia, together representing 196 elect...

December 24, 2020. Page 24.

I realize I’m writing this book at a dicey moment. Even just a few years ago it would have been an academic exercise, but today, after the popular vote loser has won the presidency in two of the past five elections, it is an issue of immediate concern to millions of Americans. Anyone weighing in on either side will be accused of being partisan. So it wouldn’t surprise me if you’re thinking, Of course this guy wants to abolish the Electoral College. He’s on the New York Times editorial board—a card-carrying member of the elite liberal media. He spends his days floating inside the dark-blue bubble of a coastal metropolis, fantasizing about a progressive takeover of America. Next he’ll want to take away all our guns and force everyone to get gay married.

December 24, 2020. Page 25.

Mark Newman,

If we really thought the Electoral College was the best way to choose a president, we wouldn’t have tried to reform or abolish it more than 700 times. We wouldn’t have expressed a consistent and overwhelming support for the popular vote, as has been the case since polling on the question began in the 1940s. Democrats wouldn’t have fought to convince electors to choose the popular vote winner in 2016, and Republicans wouldn’t have planned to do the same in 2000. And Donald Trump wouldn’t have tweeted, as he did on Election Night 2012, when for a moment it looked like his candidate, Mitt Romney, might win the popular vote but lose the presidency, “The electoral college is a disaster for a democracy.”37 (He followed that one up with another tweet that he later deleted: “More votes equals a loss … revolution!”)38

December 24, 2020. Page 28.

While this is clearly true, it’s also true that the country cannot tolerate the College’s effects under the winner-take-all rule much longer. Pundits tend to dismiss the elections of 2000 and 2016 as anomalies, but what’s remarkable is not that a split between the Electoral College and the popular vote has happened twice in the past two decades, it’s that it hasn’t happened far more often. In sixteen other elections, a shift of 75,000 votes or fewer in key states—just slightly less than Trump’s total victory margin in Pennsylvania, Michigan, and Wisconsin—would have made the popular vote loser president. Six times, a shift of fewer than 10,000 votes would have done the trick.

December 24, 2020. Page 28.

Thus it’s no surprise that in 2020, for the first time in American history, the future of the Electoral College is a live issue in the presidential race. Nearly a dozen of the original Democratic candidates called for abolishing it and replacing it with a national popular vote. President Trump himself has agreed, at least in theory. “I would rather have a popular election,” he said as late as 2018. “To me, it’s much easier to win the popular vote.”

December 24, 2020. Page 29.

More than half a century ago, when America was last embroiled in a deep debate about the full scope of its democracy, the Supreme Court wrote, “The weight of a citizen’s vote cannot be made to depend on where he lives.” And yet under the winner-take-all Electoral College today, it does. In 2000, 537 votes in Florida weighed more than 537,000 votes in the rest of the country. In 2016, fewer than 78,000 votes in three states in the upper Midwest counted for more than three million votes nationwide.

December 24, 2020. Page 33.

Wouldn’t it be thrilling to go to the polls on Election Day knowing that your vote will count just as much as everyone else’s, no matter where you live? Isn’t it exciting to think about candidates competing everywhere for votes, and parties calibrating their platforms to appeal to all Americans, rather than to the interests of a few targeted constituencies in a few battleground states? In reality, the United States is one big battleground, and the people who want to lead it should have to treat it like one.

December 24, 2020. Page 33.

This isn’t to diminish the importance of states in our federal system. To the contrary, that system recognizes that every American enjoys a kind of dual citizenship. You are a citizen of the United States and you are, in a sense, a citizen of your state. When you vote for your governor, or your local and state lawmakers, or your senators and members of Congress, you are voting as a citizen of your state. When you vote for the president—the only person whose job it is to represent all Americans equally—you should be voting as a citizen of the United States.

December 24, 2020. Page 33.

Everyone knows the famous opening words of the Constitution’s preamble—“We the People of the United States…” What most people don’t know is that those words weren’t in the first draft. In its original form, the preamble read, “We the People of New-Hampshire, Massachusetts, Rhode-Island…” and so on. That’s how it stood until the closing days of the convention, when Gouverneur Morris, a Pennsylvania delegate, changed the words to the ones we know today. The point was to emphasize what, above all, the framers were creating: one nation, indivisible. In that spirit, I hope you approach this book not as a liberal or a conservative, not as a Republican or a Democrat, not as a Texan or a Californian or a Kansan or a New Yorker, but as an American.

December 24, 2020. Page 34.

brogue.

As he had during the debates on the Articles of Confederation, Wilson reserved his greatest disdain for the claim that individual states should retain significant power under the new system. “The general government is not an assemblage of states, but of individuals, for certain political purposes,” Wilson said on June 25 during one of many battles over the shape of the national legislature. To him, it was obvious that population should be the measure of representation. After all, he said, the legislature was the voice of the people, and “the individuals, therefore, not the states, ought to be represented in it.”22

December 24, 2020. Page 49.

When the economy turned in 1796, Wilson’s creditors came calling. In August 1797 he was jailed briefly in New Jersey for unpaid debts, the first and only sitting Supreme Court justice to be incarcerated.

December 24, 2020. Page 52.

The views he expressed in Philadelphia, he wrote, “do not convey” his “more full and matured view of the subject. The right of suffrage is a fundamental article in republican constitutions.”34 In 1833, three years before his death, Madison wrote that “the will of the majority” is “the vital principle of republican government.”35

December 24, 2020. Page 55.

Jefferson eventually came to see the horrors of the French Revolution for what they were, but he never let go of his belief in the people’s will. In an 1816 letter to his friend Samuel Kercheval, Jefferson, by then an ex-president, recalled the immense pressures of the revolutionary period and recounted how they warped his and the other founders’ thinking. This led them to make many mistakes, he said, as did their overall “inexperience of self-government.”38 “In truth, the abuses of monarchy had so much filled all the space of political contemplation, that we imagined everything republican which was not monarchy,” Jefferson wrote to Kercheval. “We had not yet penetrated to the mother principle, that ‘governments are republican only in proportion as they embody the will of their people, and execute it.’”

December 24, 2020. Page 56.

Jefferson then proposed seven amendments to the Constitution, which he believed would “secure self-government by the republicanism of our constitution, as well as by the spirit of the people.” “I am not among those who fear the people,” Jefferson wrote, using words that, as in the Declaration, seemed to carry more than a hint of James Wilson’s vision. Jefferson’s first proposed amendment would guarantee “general suffrage”—that is, broad access to voting. His second would require “equal representation in the legislature,” the current lack of which he referred to as “republican heresy.” Both proposals would have brought a smile to James Wilson’s face. As would have Jefferson’s third: “An executive chosen by the people.”

December 24, 2020. Page 56.

Any informed debate about how and why we have an Electoral College must begin with these often forgotten circumstances of its birth. It was not, as many of us learned in school, a brilliant part of the framers’ plan. It did not reflect any coherent political theory but flowed instead from deals the delegates had made in response to the specific conflicts they faced at a particular moment in history. It was settled on only after every other method failed to win enough support. It was, in the words of one constitutional scholar, a “Frankenstein compromise,” adopted mainly so the delegates could finish their work and go home. And all of them knew that no matter what method they finally agreed to, George Washington was virtually certain to be the nation’s first president.3

December 24, 2020. Page 59.

Alexander Hamilton was on the same page. “As States are a collection of individual men, which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition,” he asked on June 29. “Nothing could be more preposterous or absurd than to sacrifice the former to the latter. It has been said that if the smaller States renounce their equality, they renounce at the same time their liberty. The truth is it is a contest for power, not for liberty.”14 These criticisms were being made at a time when the biggest state, Virginia, was only 13 times as big as the smallest, Delaware. (The ratio was six to one if you counted only eligible voters.) Today, the largest state has 70 times the population of the smallest.

December 24, 2020. Page 65.

Then Madison chimed in. A direct popular vote for president “was in his opinion the fittest in itself,” and would be as likely as any method to produce an executive of “distinguished character.”25 This was a coup for Wilson. Madison was by all accounts the most important delegate at the convention. He had also been consistently wary of placing too much power directly in the people’s hands, preferring instead what he called “successive filtrations” of the popular will.26 This was his first public comment on the popular vote. Madison wasn’t finished. There was “one difficulty however of a serious nature” regarding a popular vote. He picked up the point Hugh Williamson had made a couple days earlier and carried it to its logical conclusion. “The right of suffrage was much more diffusive in the Northern than the Southern States,” Madison said, “and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections.”27 In other words, Madison was saying, the method of choosing the president, like the design of Congress, would need to accommodate the demands of slaveholders. However the president would be picked, it would not be by the people. But what was this about the substitution of “electors”? It was an idea that had originally been pitched by James Wilson, of all people—back on June 2, one day after he had proposed a direct popular election of the pr...

December 24, 2020. Page 71.

Each state would get as many electors as it had senators and members of Congress combined—so Massachusetts, which had two senators and eight representatives in the first Congress, started out with 10 electors. Every four years, the electors would gather in their respective state capitals on a given day and cast their ballots for president. Each elector would vote for two candidates, at least one of whom had to live in a different state from the elector. The candidate with the most votes would become president. The runner-up would become vice president. If no candidate won a majority of electors’ votes, the Senate would choose the president from among the top five vote-getters. The framers did not call their invention the Electoral College. That name came into use many years later, and is somewhat misleading, since the design of the system—with electors gathering fleetingly in state capitals to do a single job—is hardly “collegiate.”

December 24, 2020. Page 74.

How much did the institution of slavery determine the way we choose our president? Even today, leading scholars of the founding era disagree with one another—and sometimes with themselves—on this question. In a New York Times op-ed in April 2019, Sean Wilentz, a history professor at Princeton, wrote that he had been mistaken to claim in a recent book that slavery was the key to the College’s adoption.37 “I’ve decided I was wrong,” Wilentz wrote, arguing that the benefit the College gave slave states through the three-fifths clause was incidental. Two days later, Akhil Reed Amar, a constitutional law professor at Yale Law School, wrote his own Times op-ed arguing the other side. Given the various democratic features of the Constitution, like the popularly elected House of Representatives and the absence of federal property qualifications for voting and holding office, why not elect the president by popular vote? Because, Amar wrote, “Direct election would have been a dealbreaker for the South.”38 What no one disputes is that the Constitution’s framers gave speeches connecting slavery to the Electoral College, that the College gave extra electoral votes to the slave states, and that this inequity persisted throughout the years leading up to the Civil War.

December 24, 2020. Page 75.

The Anti-Federalists weren’t buying any of it. George Mason, the Virginian delegate who had refused at the last minute to sign the Constitution, called the Electoral College a “deception” that deluded the people into thinking they were choosing the president themselves. In one Anti-Federalist newspaper, a writer identified as “A Columbian Patriot” claimed that the president would be elected by “an aristocratic junto” that could combine easily across state lines and install “the most convenient instrument for despotic sway.”45

December 24, 2020. Page 78.

On June 21, 1788, New Hampshire became the ninth state to ratify the Constitution, officially establishing the charter as the foundation of the new American government. That December, the first presidential election got underway. In February 1789, the 69 electors cast their two votes each. As expected, all of them used one vote to pick George Washington. No popular vote was officially tallied, but it is estimated that roughly 43,000 men around the country, or less than 2 percent of the total population, cast ballots.

December 24, 2020. Page 79.

Faced with two incompatible platforms, electors could no longer justify playing the role of neutral arbiter; they had to take sides. Samuel Miles was a Federalist, and the Federalists who voted for him expected him to toe the party line. In their eyes, his high-minded rationale for bucking them and choosing Jefferson was beside the point. He had betrayed the party at a moment when the stakes could not have been higher. Adams ended up winning a bare majority of electors, 71 to Jefferson’s 68. If just two other electors had followed Miles’s path, Jefferson would have won. Federalists were furious. One wrote to his local newspaper, “What, do I choose Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be president? No! I choose him to act, not to think.”2 No one today would blink at that statement; for us, the Electoral College has never operated any other way. It’s not hard to imagine a similar letter to the editor being written by, say, a Democratic voter in 2000 if an elector pledged to Al Gore had instead chosen to vote for George W. Bush, who won by a margin nearly as narrow as Adams’s.3 But in the closing days of the eighteenth century, it was a new sentiment. And it shows that within less than a decade of the Constitution’s ratification, the framers’ main public rationale for the Electoral College—that it would act as a body of learned men who would deliberate and choose the fittest man for the job—was dead in the water.

December 25, 2020. 82.

By 1824, all but six states let their voters choose the electors directly. For reasons we will get to in a moment, the election that year provided the last big push in favor of popular voting for electors. By 1828 only two states resisted, and by 1832 there was only one—South Carolina, which refused to let its voters cast a presidential ballot until 1860. The last time a state denied its people the ability to vote for presidential electors was in 1876, when Colorado, which had been admitted to the union earlier that year, had the legislature appoint its three electors. As it turned out, those three votes would be crucial to the outcome of the election. The switch to popular voting for electors was an important step toward democracy because it gave the people—or the eligible voters of the time, at least—a more direct role in choosing their leader. At the same time, it made it hard to argue that the Electoral College was an essential element of the nation’s federal system. When state legislatures chose the electors themselves, they could claim that their decision represented their state’s political sovereignty—similar to the way they once chose senators, a power that was at the heart of the original federal scheme. That logic collapses as soon as you move to a popular vote. Average citizens don’t cast their presidential ballots (or even their Senate ballots) based on what state they live in; they vote based on their party preference. Democrats in 2016 voted for Hillary Clint...

December 25, 2020. Page 96.

During an 1816 debate over one of the amendments, Abner Lacock, a Pennsylvania senator, suggested abolishing the College outright and replacing it with the national popular vote—the first time this idea was introduced in Congress. Lacock could “see no reason why these agents”—the electors—“should be employed between the people and their votes.”14 Governors are chosen by popular vote, he pointed out, and it works perfectly well in that context. He rejected the idea that direct election “would produce popular fermentation”—or civic unrest, which he considered to be a figment of lawmakers’ imaginations. “The people at home will remain unmoved, and on the day of election will, at their respective polls, soberly and dispassionately decide the question.” Lacock won a few supporters, but in the end his motion was voted down.

December 25, 2020. Page 98.

The election of 1824 was the first to have a meaningful count of the national popular vote, because it was the first time a majority of eligible citizens could vote directly for presidential electors. About 360,000 voters turned out to cast a ballot that year, and they had a clear favorite: Andrew Jackson, a decorated army general from Tennessee, won about 150,000 votes, or a little more than 41 percent of the electorate. That put him well ahead of his nearest rival, John Quincy Adams, the secretary of state and son of the second president, who pulled in about 31 percent. Behind them were William Harris Crawford, the treasury secretary; and Henry Clay, the Speaker of the House. All four were Democratic-Republicans, since the Federalist Party had disintegrated in the early 1820s. In addition to his popular-vote lead, Jackson held a comfortable lead in the Electoral College, with 99 electoral votes to Adams’s 84. But the four-man race divided the electors widely enough to deprive any one candidate of the necessary majority. Under the provisions of the Twelfth Amendment, the House would choose among the top three finishers—Jackson, Adams, and Crawford. Clay, who finished fourth, was disqualified. Unlike the first time this happened, in 1800, the balloting didn’t drag on for days, but the final outcome was nearly as controversial. Adams won a majority of state votes on the first ballot, and he became the nation’s sixth president. Jackson, despite being a clear favorite in the ...

December 25, 2020. Page 101.

In 1828 Jackson easily won a rematch with Adams, taking the popular vote by 56 percent to 44 percent and the Electoral College by 178 to 83. He cared far more about the former statistic than the latter—so much so that in his first message to Congress, in December 1829, Jackson called for replacing the College with a national popular vote. “To the people belongs the right of electing their chief magistrate,” he said. Engaging in a little historical revisionism, he added, “It was never designed that their choice should in any case be defeated either by the intervention of the electoral colleges or by” the House of Representatives. “The first principle of our system,” Jackson said, is “that the majority is to govern—it must be very certain that a President elected by a minority can not enjoy the confidence necessary to the successful discharge of his duties.”19

December 26, 2020. Not bed yet. Page 101.

The distorting mechanism in both cases was the same: the Constitution’s three-fifths clause. Under the clause, slaves were counted as three-fifths of a free white person for the purposes of representation. This gave the slaveholding states more representatives in Congress than they would have had if they were only counting their eligible voting population. And it gave them more influence in picking the president, because a state got as many presidential electors as it had representatives and senators in Congress. In 1790, for example, Virginia and Pennsylvania had nearly the same number of free white men, but thanks to its almost 300,000 slaves, Virginia had six more House seats—and thus six more presidential electors.2 Over time, this disproportionate weight was given a name: the Slave Power. And the slaveholding states’ bonus votes in the Electoral College were often referred to metaphorically as their “Negro electors.” It wasn’t a small bonus, either. In the first half of the nineteenth century, the slave population in several southern states approached 50 percent of the total population. The Slave Power made itself felt almost immediately, in the third presidential election, in 1800, which ended up sending Thomas Jefferson to the White House. That election is remembered today for its chaotic resolution in the House of Representatives, but Jefferson was only able to push it that far in the first place because of the extra, slave-based electoral votes he received from th...

December 26, 2020. Page 106.

The drafters of the Reconstruction Amendments had anticipated this sort of resistance and had devised a simple and elegant solution: Section 2 of the Fourteenth Amendment, which lays out the consequences for any state that denies any of its adult male citizens the right to vote or abridges that right in any way. Those states, the amendment says, will see their representation in Congress “reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”12 This was the official eradication of the three-fifths clause: if you prevent eligible voters from voting, you don’t get to count them toward your representation in Congress. The punishment was straightforward and sensible. That, at any rate, was the hope. As of 2020, Section 2 of the Fourteenth Amendment has never been enforced.

December 26, 2020. Page 110.

In fact the battle had just begun. Tilden had secured 184 electoral votes, one short of a majority. Hayes was well behind, with 165 votes. But in three southern states—South Carolina, Louisiana, and Florida—the electoral vote was in dispute. Democrats had won the popular vote in all three states, but Republicans charged they had done so only through voter intimidation and ballot fraud. This was standard operating procedure in the waning days of Reconstruction. White Democrats intent on regaining control of state governments did whatever they could to control and suppress black voters. When asked how they would manage to secure a win for Tilden in a state like South Carolina, which at the time had a sizable majority of Republican voters, the former Confederate general quoted above referred to what he called the “shot-gun policy”: “That policy is to plainly tell the negroes that the Whites are again in command of the state. We Democrats do not want their votes, but they will vote against us at their peril. We must warn the leaders that ‘the tall poppies will fall first.’” The general added, “We must be prepared to shoot rather than be prevented from redeeming the State from Radical rule.”15

December 26, 2020. Page 112.

They did it through poll taxes, literacy tests, and other measures that targeted blacks’ poverty and lack of education. White politicians were not shy about what they were doing. “Let us tell the truth if it bursts the bottom of the Universe,” the president of the Mississippi convention announced. “We came here to exclude the Negro.”25 This was exactly what Section Two of the Fourteenth Amendment was designed to block—if anyone had ever bothered to enforce it.

December 26, 2020. Page 118.

This erasing of black voters’ voices in the South continued in the wake of the Civil Rights Act of 1964, when white southerners began to abandon the Democratic Party. Black southerners turned away from Republicans and toward the Democrats—but thanks to state winner-take-all rules, they still had essentially no political representation. In the 1968 election, nearly 600,000 black voters in the South picked the Democratic nominee, Hubert Humphrey—but in the Electoral College, all of those votes were converted into votes for the Alabama governor and segregationist George Wallace. In the words of a 1979 Senate report, “it was as if they had never voted.”28

December 26, 2020. Page 119.

As the United States entered World War I and women became more deeply involved in the war effort, it became impossible to justify denying them the vote as a constitutional matter. In 1918, the push for an amendment got the backing of President Woodrow Wilson. It passed Congress in June 1919, and the states quickly began to ratify it. The primary opposition to women’s suffrage was the same as it was for black suffrage: southern white Democrats, most of whose states would refuse to ratify the Nineteenth Amendment until the 1950s. Mississippi held out until 1984.

December 26, 2020. Page 122.

It was a remarkable transformation for a country that had allowed, at its birth, only a fraction of the population to vote. And yet 130 years is a long time to deliver on a nation’s founding premise. One reason it took so long can be found in the design of the Electoral College itself. Because each state gets its prescribed number of electors based on total population, not on how many of its residents cast a ballot, there is no incentive to expand the electorate. Why bother letting more people vote when it doesn’t give your state any additional influence? Imagine how much sooner America might have confronted slavery, or the disenfranchisement of women—half of the entire population!—under a popular vote system in which every vote counted.

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And none of the amendments passed between the Civil War and the Progressive Era did anything for Native Americans. The federal government had granted them citizenship in 1924, but individual states continued to deny them the vote until the 1960s.

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Rural lawmakers, who had long dominated American politics, fought back against this threat to their grip on power in two ways. At the state level, they refused to redraw legislative district lines to more accurately reflect where people lived. And in Congress, they froze the size of the House of Representatives itself, in the hope of locking in their numerical advantage in Washington as it slipped away everywhere else. Before 1920, Congress had virtually always expanded the House to keep up with the growing population. In 1911, that meant increasing the House to 435 members. In 1921, it would have led to the addition of nearly 50 more seats, primarily in the cities. But rural lawmakers blocked the decennial reapportionment of the House of Representatives that year. Today, with a national population more than three times as big as it was in 1920, the House remains stuck, effectively, in 1911. If it had continued to expand as it had for more than a century before, it would now consist of more than 1,500 members. In 1928, Emanuel Celler, a representative from New York, observed how the power struggle between urban and rural America infected every part of the House’s deliberations. The “thread of controversy,” he said, “runs through immigration, prohibition, income tax, tariff. It is the city versus the country. The issue grows more and more menacing.”29 Celler was right. The urban-rural clash would continue to intensify into the middle of the twentieth century. It reached its...

December 26, 2020. Page 125.

“One person, one vote”—four words that sound like common sense today. But when the Supreme Court first put them to paper, on March 18, 1963, in a decision on an election law case out of Georgia, they triggered a political earthquake. In a series of rulings over the next two years, the Court’s expansion of this principle forced lawmakers across the country to redraw legislative district lines, redistributing political power to reflect where people actually lived. It thrust the nation into what two political scientists called “the greatest peace-time change in representation in the history of the United States, perhaps in the history of democracy.”4 And while it wasn’t obvious at first, those four words would change forever the way we talk about electing our president. Why were these rulings necessary in the first place? By the early 1960s the nation was at the tail end of a massive population shift in which millions of Americans, many of them black, migrated from farms and rural areas to rapidly growing cities. But this shift was not being reflected in Congress or state governments, because the people who decided where the district lines were drawn—most often rural lawmakers—refused to cede their power by redrawing the districts. The result was entrenched minority rule: small numbers of rural voters had the same representation as much larger numbers of urban voters, and often more.

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What they had not anticipated was the degree to which the civil rights movement was changing the national conversation about race, power, and democracy in America. As the public became increasingly aware—and intolerant—of the massive imbalances in representation, the Court couldn’t continue to ignore the issue. The first step into the thicket came in 1961, when the Court agreed to hear a case called Baker v. Carr.8 Baker began with a lawsuit out of Tennessee, where state lawmakers had refused to redraw their legislative maps since the turn of the century, with a familiar outcome: in the more rural, eastern part of the state, one state lawmaker represented as few as 3,800 people; in the more urbanized western half, which included Nashville and Memphis, a single lawmaker represented as many as 70,000. In case anyone thought these numbers were the result of innocent, unbiased mapmaking, consider the words of James H. Cummings, a lawmaker from rural Cannon County and one of the more influential politicians in the state. Cummings told a reporter, “I believe in collecting the taxes where the money is—in the cities—and spending it where it’s needed—in the country.”9

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