The Electoral College is dangerously vulnerable to manipulation. It’s time to fix it | Bruce Ledewitz

December 2, 2020 6:30 am

A voting machine (Capital-Star photo)

This must be the worst moment in American history to propose reforming the Electoral College rather than abolishing it.

Bruce Ledewitz (Capital-Star file)

After all, in the 2020 Presidential election, despite the highest turnout in a century, despite a national majority of 51 percent for Joe Biden, despite a lead of over six million votes, Biden was actually elected by only 43,735 votes in three states: Arizona, Georgia and Wisconsin.

In other words, though the American people reached a full and considered decision to reject the reelection of President Donald Trump, if 0.03 percent of the voters had changed their minds, Trump would have won. That possibility demonstrates the bankruptcy of the Electoral College. The election should not have been that close.

Nevertheless, abolishing the Electoral College is not a practical option. That would require a constitutional amendment.

In addition, the Electoral College has its good side. Its basic mechanism—requiring a majority of electoral votes in the states—forces a political party to try to win as many states as possible. That is healthy for American democracy.

The Electoral College is the reason that the Democratic Party poured so many resources over the years into Georgia, for example.

Without the Electoral College, Democrats might have been content to achieve a Presidential win just by turning out the vote in New York and California. And the win in Georgia in 2020 has pulled the Democrats toward the political center.

The Electoral College is also pulling the Republican Party toward the center. The need on the Republican side to attract Hispanic voters has just been crystalized by solid victories in Florida and Texas. Every Republican leader in the country now understands that the era of racist dog whistles must come to an end. You cannot attract Hispanic voters if you use racist rhetoric.

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But, despite these good effects, the Electoral College in its current form is dangerous, for two reasons. First, it is subject to manipulation. Second, it is capable of breaking down altogether.

The potential for manipulation was apparent when Biden won one electoral vote in Nebraska and Trump won one electoral vote in Maine. Nebraska and Maine are the two states whose legislatures have chosen modified congressional distribution of electoral votes as opposed to the winner-take-all method utilized in the other 48 states.

These wins by Biden and Trump gave Democrats in Nebraska and Republicans in Maine a potentially outsized influence on the outcome of the Presidential election. Their votes counted in the Electoral College, whereas Democratic votes in South Dakota and Republican votes in Pennsylvania did not. In winner-take-all states, the votes of the losers are irrelevant.

This two-state anomaly did not mean anything in 2020 because the wins by each candidate were balanced.

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But, back in in 2011, some evil genius at the American Legislative Exchange Council (“ALEC”), a conservative think-tank, figured out that this legislative discretion could be gamed to ensure permanent Republican control of the presidency.

All you have to do is get purple states like Pennsylvania to choose electoral votes by Congressional district while keeping red states like Texas winner-take-all. That way, Democratic votes would remain submerged, while Republican votes would count in the Electoral College.

So ALEC endorsed congressional elector selection for President with a wink and a nod, ensuring that red state Republicans would make no change, while encouraging Republicans in purple states to act. This plot collapsed only because patriotic Republicans such as Pennsylvania Republican Gov. Tom Corbett refused to go along. But the effort could always be revived.

Democrats have also tried to game the Electoral College, albeit openly rather than secretly, through the National Popular Vote Interstate Compact.

The compact is an agreement among a group of U.S. states and the District of Columbia to award all their electoral votes to whichever presidential candidate wins the national popular vote. Thus far, 15 states have endorsed the initiative, which only goes into effect when an Electoral College majority does so.

Supporters of the Compact mean well, but they have not considered the legal and political disaster that the Compact would entail if it became effective. To change a result from the current Electoral College system, the electors in some state where the majority voted Republican would have to vote for the Democratic Party candidate for President. The political fallout would be bitter. Talk about stealing an election.

Worse, undoubtedly some legislature would try to withdraw from the Compact only to have that action vetoed by a governor of the opposite party. The potential for litigation is unimaginable.

All of this can be prevented by federal legislation urging that all states adopt winner-take-all and providing federal incentives toward that end. Congress cannot force the states to do this, but a federal enactment would probably forestall any future manipulative schemes.

We also saw the potential for breakdown in the 2020 election, as President Donald Trump tried to get Michigan Republican legislators to appoint electors who would vote for Trump, despite Biden’s win in that state.

If that effort had proved successful, a similar strategy would have been pursued in Pennsylvania. The justification for these efforts was a vague claim of vote fraud leveled by the Trump campaign.

Experts have said that any such action by a state legislature after an election would be legally dubious. That is likely true but there is a federal loophole that should be closed. Federal law currently provides that if a state Presidential election “has failed to make a choice,” the state legislature can pick the electors.

Presumably, this language was meant for unanticipated natural disasters. But it could be co-opted by an argument that unproved electoral fraud prevented a genuine choice by the voters. The Trump campaign was essentially making this case.

It would not be difficult to tighten this language to make it clear that it only applies when actual voting is interrupted and not when such voting is arguably illegitimate. Issues of vote fraud should be left to the courts. Again, both parties might go along with tightening this language after the passions of the 2020 election have passed.

The Electoral College certainly can be criticized. But it does work in its fashion. Its actual dangers are real, however, and should be addressed.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page.  Listen to his podcast, “Bends Toward Justice” here

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne Kline Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Kline Duquesne Law School.