Winner-Take-All Electoral College Could Enable Dreaded Constitutional Crisis

Part of the Series

Voting Wrongs

Support for abolishing the Electoral College has reached its highest level in nearly 10 years as calls to reform other minoritarian structures, including the composition of the Senate and the Supreme Court, come under increasing scrutiny after the death of Justice Ruth Bader Ginsburg.

A Gallup survey found 61 percent of those surveyed want to get rid of the Electoral College, with 89 percent of Democrats and 23 percent of Republicans favoring picking the president based on the national popular vote. The findings are similar to levels of support in 2000 after George W. Bush won the Electoral College but lost the popular vote.

This comes as poll comparisons show the Electoral College remains President Trump’s most likely path to victory again this year. Comparisons between 2020 and 2016 September polls show Democratic presidential nominee Joe Biden up 8 points compared to Hillary Clinton’s corresponding 5-point lead four years ago.

Pollsters note that Clinton was 7 points up on Trump just three weeks before losing in 2016, and warn that support for Trump among white, working-class voters in states like Wisconsin, Pennsylvania and Michigan could once again plot his path to victory through the Electoral College.

The institution is facing even greater pushback after Barton Gellman reported in The Atlantic that the Trump campaign has been “discussing contingency plans to bypass the election results and appoint local electors in battleground states where Republicans hold the legislative majority.”

Three Republican leaders in Pennsylvania told Gellman they had “already discussed the direct appointment of electors among themselves,” and one of them, Pennsylvania Republican Party Chairman Lawrence Tabas, said “he had discussed it with Trump’s national campaign.”

Such a maneuver would amount to a coup attempt, using the president’s false claims of voter fraud as cover to completely bypass the popular vote. It’s just one of several vulnerabilities in the electoral system, particularly the Electoral College system, that the Trump campaign is looking to exploit this fall that could potentially lead to a constitutional crisis.

Other moves as laid out by Gellman include legal fights over the language of the Electoral Count Act and declaring absentee ballots fraudulent before they’re processed. In all likelihood, the president will pronounce himself the winner on election night before all mail-in ballots are tallied.

In particular, Gellman focuses on the ambiguities of the Electoral Count Act, which lays out and regulates the process for counting states’ electoral votes when the new Congress meets on January 6. The Act also has a provision that outlines how to resolve contested vote counts.

“[The Electoral Count Act] anticipated exactly this scenario, so it’s actually less ambiguous than people think.”

Gellman argues that the Act’s unclear language could lead to an electoral crisis in a scenario in which the Pennsylvania state legislature submits a different vote certificate than what the state’s Democratic governor submits, and a Republican-controlled Senate disagrees with a Democratic-controlled House about which slate of electors to accept.

John Kowal, vice president of programs at the Brennan Center for Justice, cautions that while the potential for a constitutional crisis is certainly not impossible, the Count Act actually does make pretty clear what would happen even in the case of a disagreement between the Senate and the House.

Firstly, Kowal notes, when there are two contested slates of electors, the law states that Congress should count the votes of the electors “in the mode provided by the laws of the State,” referring to laws passed prior to Election Day, he says. Because every state already provides that presidential electors are decided in the vote on Election Day, Congress must apply those prior statues when counting electoral votes.

Even in a case in which Republicans attempt to push forward with a rogue slate of electors, the Act still specifies that Congress should pick the slate that is certified by a state’s governor. “[The Act] anticipated exactly this scenario, so it’s actually less ambiguous than people think,” Kowal told Truthout. “It’s very hard to read the law, but this part of the law is pretty crisp, actually.”

No one should be under any illusion that there’s no default answer in the Electoral Count Act, he warns. “The law was intended to prevent a chaotic situation by making clear that the process has to be governed by law, and Congress should look to prove whether electors have been chosen legally under the statutes of every state, and that is, by definition, not a rogue slate of electors,” he says.

Kowal’s legal analysis is backed up by more than 50 election experts with the National Taskforce on Election Crises, which released a report finding that state legislatures cannot legally appoint their preferred slate of electors after Election Day or use delays in counting ballots or resolving election disputes as a pretext for usurping the popular vote.

Additionally, Kowal notes, the Supreme Court also validated the principle that state law takes precedent when it comes to election processes in regard to state electors, in particular in two decisions this year regarding so-called “faithless electors.”

In July, the court ruled unanimously that “states can require members of the Electoral College to cast their votes for presidential candidates they had pledged to support,” limiting electors’ ability to change their vote when it comes time to actually cast their ballot.

The court ruled on two cases concerning electors in Washington State and Colorado, saying the states have the right to fine or remove electors who went rogue. Laws in 32 states and the District of Columbia mandate faithful electors. “In states without such penalties, though, electors remain free to change their votes,” according to The New York Times.

“The notion that, based on any kind of ginned-up arguments of fraud, that state legislatures could take back what they gave to the people in a law without changing the law seems to run counter to the spirit of what the Supreme Court said this year.”

The connection with the maneuver being discussed by Republicans in Pennsylvania, Kowal says, is that existing state law ultimately matters. “The notion that after an election happens, that based on any kind of ginned-up arguments of fraud or whatever, that state legislatures could take back what they gave to the people in a law without changing the law … seems to run counter to the spirit of what the Supreme Court said this year,” he says.

Still, none of this rules out potential abuse of legal processes and precedents. Moreover, whether the Electoral Count Act is even constitutional remains a question that looms heavily over the outcome of a potential contested election. Many legal scholars have argued that it isn’t, since a current Congress may lack the authority to bind a future Congress. The Supreme Court has never ruled on the issue, and it’s unclear how a newly composed court might decide in a politically tense atmosphere defined by social unrest.

Kowal does see a need for ambiguities in the Electoral Count Act to be clarified. “There has been a call by many legal scholars and others to update it, to make it clearer, and that’s an obvious thing a new Congress should do,” he says. “Relying on a law from 1887, it’s just one of those things where we’ve never had the perfect storm where anyone had to worry about it, so we’ve let sleeping dogs lie.”

Meanwhile, the movement to abolish the Electoral College is continuing as state legislatures weigh whether to adopt a measure that would award electoral votes to the winner of the national popular vote.

Oregon became the 15th state last year to join the National Popular Vote interstate compact and the fourth state to join the compact after Democratic governors in Colorado, Delaware and New Mexico also signed versions of the model bill.

The model legislation in each state only becomes effective once enacted by enough states to possess the 270 electoral votes necessary for a majority. Once enacted, at least 270 presidential electors will give their vote to the candidate who received the most popular votes in all 50 states and the District of Columbia — making that candidate president. Currently, the compact’s 15 states and D.C. account for 196 electoral votes.

The Supreme Court’s faithless electors decision was also a boon to the interstate compact effort, affirming that states can govern their electors however they please, and suggesting that their power wouldn’t be “limited if states’ electors were awarded to the national popular vote winner.”

In 18 states that don’t have faithless elector laws, the compact would operate similar to the systems already in place. In these states, the presidential electors would be chosen by the “political party whose presidential candidate receives the most popular votes in that state.”

“Relying on a law from 1887, it’s just one of those things where we’ve never had the perfect storm where anyone had to worry about it, so we’ve let sleeping dogs lie.”

The nonprofit behind the compact, National Popular Vote Inc., recently announced a partnership with FairVote to track presidential campaign visits and release a map showing their findings each Friday between now and November 3. Their first map shows that 54 campaign events during the first four weeks of the 2020 campaign have been concentrated in just 10 battleground states. Pennsylvania has received the most events and Wisconsin received the second-largest number.

“Why are [the presidential candidates] campaigning in 10 states? Well, because of the winner-take-all rules and because, to be blunt, the winners in the other 40 states don’t matter,” says National Popular Vote Chairman John Koza. “That’s why we might be headed for a constitutional crisis … because the current system suddenly makes it critical whether somebody carries Florida by 537 votes or carries Michigan by 11,000 votes,” he says, referring to Bush’s and Trump’s vote margins in 2000 and 2016, respectively.

The compact has largely passed in blue states but is coming under increasingly organized opposition from the right in purple and red states. The compact’s next target is Colorado, whose state legislature passed the compact’s model bill in March 2019. After Republicans certified a veto referendum against the measure, it will now be on the ballot in November.

The two committees against the compact, Protect Colorado’s Vote and Conservatives vote No on National Popular Vote, reported $1.47 million in contributions and $1.06 million in expenditures, respectively. Total spending on the referendum, however, has paled in comparison to the average amount raised for ballot measures across the U.S. in 2018.

“We might be headed for a constitutional crisis because the current system suddenly makes it critical whether somebody carries Florida by 537 votes or carries Michigan by 11,000 votes.”

That’s why national popular vote proponents argue that if the Democratic Party and progressive groups make the compact a national priority and invest and organize in pushing the model bill in state legislatures, the effort could turn a corner and reach its threshold.

Now, a new Supreme Court could potentially change the math, even despite the court’s favorable decisions this year. There are likely to be legal challenges from the right if the compact reached all 270 electoral votes it needs to go into effect — especially in the red states it still needs for ratification. The Supreme Court’s potential legal validation of the maneuver being discussed in Pennsylvania, for instance, would also be ominous for the fate of the compact.

“The public is becoming more aware of how dangerous [the Electoral College] system is. Never mind whether it’s a good way to elect the president or not,” Koza says. “You can talk about philosophy all you want, but it’s a terrible way in terms of creating crises because, first of all, election crises are virtually unknown in [non-presidential] elections, and the reason is you have a single pool of votes when you vote for governor or U.S. senator or congressperson.”

“I think the country’s in big trouble, and it flows from the winner-take-all rule. We have made a handful of votes in a handful of states super important, and when you do that, you invite shenanigans.”

The Brennan Center’s Kowal notes, however, that Republican opposition based of the current blue-state, red-state divide could change based on demographic and electoral shifts. “Texas is poised to become a purple battleground state. Once that happens, then I think Republicans clinging to the current Electoral College system might start being more open to something different because they might realize that they’re suddenly really disadvantaged by the Electoral College,” he says.

Still, the current questions being raised about potential scenarios involving swing states’ Republican legislatures appointing Trump-loyal electors and problems with the Electoral Count Act that could produce unprecedented constitutional crises all stem from a single minoritarian structure, as National Popular Vote’s Koza puts it.

“I think the country’s in big trouble, and it flows from the winner-take-all rule,” he says. “We have made a handful of votes in a handful of states super important, and when you do that, you invite shenanigans.”