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

by Jesse Wegman

At the same time, the skews in favor of rural areas were only getting more extreme, and the justices knew the problem went far beyond Tennessee. Only five states apportioned their districts so that a legislative majority represented at least 40 percent of the population. In many others, less than 20 percent of the population could, and sometimes did, control the entire state legislature.10

December 26, 2020. Page 134.

Despite the tumult, the pro-intervention side eventually prevailed. On March 26, 1962, by a vote of 6–2, the Court said what it had never been willing to say before: a state’s legislative district lines can be drawn in such a way that they violate the Fourteenth Amendment’s guarantee of equal protection. Significantly, the Court did not rule that Tennessee’s maps were unconstitutional—that, for the time being, would be for the lower courts to decide. But simply by holding that this was a matter for the courts in the first place, it had changed the game.

December 26, 2020. Page 135.

It wasn’t a matter of legislative districts, but while the device was different, the effect was the same: rural voters were massively overrepresented compared with urban voters. In Fulton County, which includes Atlanta, 550,000 residents, or 14 percent of the state’s entire population, got just six of 410 county unit votes. Meanwhile, Echols County, a small plot in southern Georgia with fewer than 2,000 residents, had two unit votes. In other words, Echols County voters had about 100 times the voting power of those in Fulton County. For the Supreme Court, the Georgia case was the first opportunity since the Baker v. Carr ruling to define a standard of representational equality. Justice William O. Douglas, writing for an 8–1 majority, landed on a memorable one. “How can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county?” Justice Douglas asked. For the first time, the Court answered that he can’t. “The concept of ‘we the people’ under the Constitution visualizes no preferred class of voters, but equality among those who meet the basic qualifications,” Justice Douglas wrote—and those qualifications had changed dramatically since the nation’s founding. The Fifteenth and Nineteenth Amendments had enfranchised blacks and women, respectively, while the Seventeenth Amendment gave citizens the right to vote directly for their senators. In light of...

December 26, 2020. Page 136.

In an opinion by Chief Justice Earl Warren, the Court in Reynolds ruled that this violated the equal protection clause. “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests,” the chief justice wrote.13

December 26, 2020. Page 137.

The resistance to the Court’s malapportionment decisions was fast and fierce. Rural voters everywhere, but especially white southerners, claimed that the new standard would “make the urban parts and interests of this nation the unchallenged and total masters of our affairs.”15 That’s not what was happening, but as the New York Times columnist Michelle Goldberg put it in another context years later, “When one is accustomed to privilege, equality feels like oppression.”16

December 26, 2020. Page 138.

The one person, one vote rulings didn’t just reshape the idea of what a democracy could be and who was represented in it; they also shined a new light on the most undemocratic elements of our political system—above all, the Electoral College. If “one person, one vote” was now the rule for congressional and state legislative elections, how was it fair to not hold the presidential election to the same standard? The justices had anticipated this challenge, and they had a legally correct if unsatisfying response. It was true, they wrote in Gray v. Sanders, that the Electoral College treated some votes as worth more than others, just as malapportioned districts did. In this case, however, there was nothing they could do about it. After all, “specific historical concerns validated the collegiate principle despite its inherent numerical inequality.” In other words, they were admitting that the Electoral College violates basic political equality, and yet it is constitutional … because it is literally in the Constitution.21 In a footnote to the ruling, the justices added an editorial aside. Whatever the original intent of the College, they suggested, there was no modern justification for it. The Fifteenth, Seventeenth, and Nineteenth Amendments showed that the framers’ “conception of political equality belongs to a bygone day.” But that was as far as the justices could go. The Supreme Court has the power to interpret what’s in the Constitution, but not to rewrite it. To do that, yo...

December 26, 2020. Page 141.

But hadn’t Bayh just called the Electoral College an essential feature of American federalism, a way for the states to play a central role in electing the nation’s leader? Yes, he had. And he had been wrong. “We elect our local official locally; our Congressmen by districts to protect district interests; our Governors and Senators statewide,” Bayh said. “Why should we not elect the President and Vice President nationally? The President has no authority over state government. He cannot veto a bill enacted by a state legislature. Why then should he be elected by state-chosen electors? He should be elected directly by the people, for it is the people of the United States to whom he is responsible.”

December 26, 2020. Page 146.