On Tuesday, October 20, the Feerick Center for Social Justice hosted a talk with Jesse Wegman, a member of the New York Times editorial board and author of the book Let the People Pick the President: The Case for Abolishing the Electoral College. Wegman spoke with Dean Emeritus and Norris Professor of Law John D. Feerick about the Electoral College and issues in play as the presidential election approaches.
Early in his career, Dean Feerick was heavily involved in an attempt to abolish the Electoral College. Dean Feerick worked closely with the American Bar Association in the 1960s as one of the drafters of its proposed amendment to the Electoral College. That proposal was nearly identical to the one the House of Representatives passed in 1969. Dean Feerick wrote a 1968 Fordham Law Review article calling for the College’s abolition. More recently, the Democracy Clinic, which he co-taught, studied the Electoral College and related issues.
Dean Feerick noted in the talk that there are four important dates to remember for this presidential election: November 3, December 14, January 6, and January 20. November 3, as most people already know, is Election Day, when votes will be cast and counted. This election, however, is for the slate of electors to the Electoral College who then vote for the President to whom they have pledged their vote. These electors meet on December 14 to cast their vote for the President. These votes are sealed and then sent to Congress, where they are counted in a joint session on January 6. This is important to note since the newly elected Congress is sworn in on January 3. Then, on January 20, the new president or a re-elected President Trump will be sworn in.
The process would be much different had the proposed popular vote amendment in 1969 passed the Senate. As Wegman explained, the 1960s were a hot bed for political reform. The Supreme Court’s “one person, one vote” cases were restructuring malapportioned legislative districts, the Civil Rights Movement spurred passage of the Voting Rights Act of 1965, and George Wallace’s third party campaign aimed to game the Electoral College by winning enough electoral votes to throw the election into the House of Representatives. An overwhelming 80 percent of the public favored abolishing the Electoral College. In Congress, Electoral College reform was tactfully led by Senator Birch Bayh, who is the subject of a tribute in the current issue of the Fordham Law Review.
The American Bar Association proposed an amendment to abolish the Electoral College and institute the national popular vote. Dean Feerick helped to draft that amendment and testified several times before Congre
ss in the effort to pass it. The House passed the amendment, but it met resistance in the Senate, where Senators from the Deep South filibustered it. These Senators, particularly Senator Strom Thurmond, felt that the Electoral College preserved the electoral power of the South.
Wegman claimed that the Electoral College system is contradictory to common sense notions of fair play, in particular through the operation of the winner-take-all method of awarding electoral college votes. The winner-take-all method means that the four million Republican votes in California in the 2016 presidential election were ignored because it awarded all of its 55 electoral votes to Hillary Clinton. Also, the Electoral College and the winner-take-all system are the reason that there have been popular vote winners who lose the presidential election, such as candidates Hillary Clinton and Al Gore. The popular vote count doesn’t matter,
as it is the vote count in the Electoral College that ultimately determines the outcome. Wegman emphatically asserted that our presidential election system does not need to be this complex. The United States already holds a national popular vote every four years, but the Electoral College distorts its outcomes.
The talk then moved to questions from the audience. One question concerned the effect that the national popular vote would have on the political dialogue and if it would dilute the influence of interest groups. In response, Wegman emphasized the distorting effect that the Electoral College has on the current political dialogue. For example, he noted the most recent presidential debate, which included a lengthy discussion of fracking, a topic which he said is not a priority for most Americans. Wegman contended that, because this issue matters mainly to voters in swing states, it drives the national political dialogue much more than other issues that matter to the majority of Americans.
Answering a question about the intent of the founders to make sure that all states had a voice, Wegman replied that this misconception was born well after the Constitutional Convention. The founders, Wegman claimed, were much more concerned with the local knowledge of voters, who were more likely to know only their local political leaders and not any national figures. Wegman contended that voters base their decisions on their ideologies and party affiliations, not the states they are from. Also, Wegman emphasized that one of the reasons the Constitutional Convention approved the Electoral College was to appeal to the slaveholding states in the South. Those states opposed the direct national popular vote at the Convention, much as they did in the 1960s. Dean Feerick commented on this with his own experience witnesses the campaign of George Wallace in 1968 and the fear that it generated. The Electoral College, Dean Feerick said, had been exploited by segregationists and others in the past by using its mechanisms to get their way.
Wegman went on to explicate a simple statement: no one likes the Electoral College. Although there may be some people who favor the Electoral College right now, as soon as they think it may hurt their interests, they become outraged with it. In his book and the talk, Wegman quoted one of President Trump’s tweets where he said that the “Electoral College is a disaster for democracy,” though four years later he would end up benefiting from it.
Dean Feerick and Wegman examined two ways of implementing the national popular vote. First, they covered the passing of a constitutional amendment which, as discussed above, is unlikely. Even with 80 percent support among the public in the 1960s, the amendment was blocked. Wegman stated that the potential for an amendment now was bleak given the hyper-partisan political atmosphere.
The second possibility is the National Popular Vote Interstate Compact, in which states with a majority of electoral voters (270) would agree to award their votes to the national popular vote winner. States totaling 196 electoral voters have already agreed to this compact which won’t take effect until they add up to 270 or more electoral voters in total. This would effectively institute the national popular vote without amending the Constitution. Both Wegman and Dean Feerick found this method to be attractive in the absence of the possibility of a constitutional amendment. However, Wegman held some reservations since this compact had only been passed by Democratic-held legislatures. On the other hand, he said he was hopeful that if some traditionally red states, like Texas, turn blue this election, there might be an incentive for Republican-held states to enter into the compact.
In Let the People Pick the President: The Case for Abolishing the Electoral College, Jesse Wegman eloquently lays out all of these arguments and addresses many concerns with the national popular vote. Published in March of this year, it is a must-read for anyone concerned with the 2020 election and the Electoral College.
Andrew Vazquez is a 2L at Fordham Law School. He is currently working with Dean Feerick as a research assistant on an upcoming article for the Fordham Law Review.