The Electoral College has to go — here’s how we do it

The United States can’t pretend to be a democracy. First-place candidates have lost two presidential elections in the last 16 years: Al Gore lost despite beating George W. Bush by 544,000 votes in 2000, and Hillary Clinton was defeated even though she leads Donald Trump by more than 1.69 million votes this year. Most Americans realize that electoral votes have got to go.

Even James Madison wanted direct elections of the president. He only created electoral votes during the Constitutional Convention as a compromise. White Southerners were afraid of being outvoted by Northerners, and wanted their slaves, or at least 3/5 of them, included in the allocation of votes even though the slaves themselves could not vote. Electoral votes made this possible, direct elections did not. Our strange voting system is thus a relic of America’s original sin of slavery.

{mosads}Trump’s victory in 2016 was not anything like the election of 2000, when Bush bested Gore by 5 electoral votes, or the election of 1876, when runner-up Rutherford B. Hayes led the popular vote-winner, Samuel Tilden, by just 1 electoral vote.

This year, Trump, even with a million and a half fewer votes than Clinton, won a sizable electoral victory, 306 to 232, a formidable margin of 74 electoral votes. Clinton racked up a 21 percent lead in New York and a 28 percent — 3 million vote — lead in California, but Trump eked out 1 percent margins in Florida, Pennsylvania, Michigan and Wisconsin. Together, these states gave Trump 75 electoral votes, more than his margin of victory.

If a candidate can lose an election by almost 1.7 million votes and still win such a big electoral triumph, as Trump did, then the electoral system can’t just be tweaked or repaired — it must be replaced.

The obvious step is a constitutional amendment to allow direct presidential elections. But Republicans, having benefited twice from our unjust system, are unlikely to vote for it. Democrats can taunt Republicans, asking them whether they are too cowardly to agree to a direct vote. But the Republicans are still unlikely to budge.

A new way of electing presidents, National Popular Vote, has already been adopted by 10 Democratic states: California, New York, Illinois, New Jersey, Massachusetts, Washington, Maryland, Hawaii, Rhode Island and Vermont. Under this system, states agree in advance to give their electoral votes to whoever wins the most popular votes nationwide, but the reform will not take effect until all of the participating states together have at least 270 electoral votes, a majority of the nation’s total.

In a presidential election year, no state that has adopted National Popular Vote can withdraw from the compact during a “blackout period” between July 20 and Jan. 20 of the following year, a 6-month period stretching from the party conventions to Inauguration Day.

National Popular Vote makes an end run around the difficult process of amending the Constitution. In effect, it replaces electoral votes with direct elections without having to win the support of 2/3 of Congress and 3/4 of the state legislatures. It doesn’t require 38 states to ratify the compact, only enough states to control 270 electoral votes. Red states won’t be able to block the reform; the support of the blue and purple states will be sufficient.

Unfortunately, National Popular Vote’s bypass of the Constitution is also its great weakness. Because the compact is only a contract rather than a constitutional requirement, the power to enforce it is weak. Suppose, for example, that Ted Cruz is leading slightly in a future three-way race for president. Will the people of New York, Illinois and California really meekly give him all of their electoral votes? Or will the legislatures in these states rush to withdraw from the compact, blackout period be damned?

Fortunately, there is a way to make National Popular Vote enforceable: put the compact into the states’ constitutions. Then the legislatures will not be able to withdraw from the pact so easily. Forty-six states require a statewide ballot before an amendment can be passed or repealed, an obligation that takes time to arrange. In the other four states, where legislative action alone can amend the constitution, an amendment must be passed or repealed by a super-majority, usually 2/3 of each house, a high bar.

National Popular Vote can only work if it is hard to withdraw from. The 10 blue states that have already adopted the agreement need to go back to the drawing board and amend their constitutions. Only then will other states trust the arrangement’s enforceability enough to adopt it themselves.

Once National Popular Vote becomes law, the entire country may finally rush to amend the U.S. Constitution, get rid of electoral votes, and replace them with direct presidential elections, preferably with a runoff if no candidate wins 50 percent of the vote.

Then America can resume being a democracy, and finally elect presidents in the same way that we choose governors, senators, congressmen and mayors.

Mark Weston is the author of “The Runner-Up Presidency – The Elections that Defied America’s Popular Will (and How Our Democracy Remains in Danger)”

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