ELECTORAL REFORM
Dobbs Decision Highlights Need for Electoral College Reform
Popular Vote Losses Lead to Judges Out of Touch with Public Will
On Friday, June 24, 2022 the Supreme Court handed down its decision in Dobbs V. Jackson Women’s Health Organization, in which it voted 6–3 to overturn the nearly 50-year precedent established in Roe V. Wade, providing American women the right to abortion services regardless of the state in which they live. While this decision has deep ramifications for American jurisprudence, it also highlights the pressing need to reform the Electoral College.
The Current Court
Let’s begin by examining the current membership of the Supreme Court of the United States [SCOTUS]: nine justices appointed by our previous five presidents. Clarence Thomas was appointed by George H.W. Bush, Stephen Breyer by Bill Clinton, Samuel Alito and Chief Justice John Roberts appointed by George W. Bush, Sonia Sotomayor and Elena Kagan appointed by Barrack Obama, and finally Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett appointed by Donald Trump. The Constitution specifies that presidents appoint SCOTUS justices with Senate approval. However, a majority of these appointments were made by presidents that did not win the popular vote in their respective elections.
Trump appointed three justices while losing the popular vote by roughly three million votes. George W. Bush appointed both Alito and Roberts in his second term, an election in which he did win the popular vote; however, Bush lost the popular vote in his first term by about 500 thousand votes, meaning he would not have had a second term since he was not elected to a first.
Additionally, Mitch McConnell blocked President Obama from appointing a justice in 2016, when Antonin Scalia unexpectedly passed away, arguing that the winner of the 2016 presidential election (who would not be inaugurated for almost one year after Scalia’s death) should be given that responsibility. Notably, McConnell and his fellow Senate Republicans quickly backtracked on these comments when Ruth Bader Ginsburg passed away less than two months before the 2020 presidential election. In fact, McConnell and Senate Republicans were able to get Amy Coney Barrett confirmed to the bench just six weeks after Ginsburg’s passing.
Why Do We Allow Popular Vote Losers to Govern?
It is clear, then, that five of the current nine justices were appointed by presidents that did not win the popular vote. Yet, the Constitution still gives them the power to appoint SCOTUS judges — and with Trump’s three appointments he was able to completely transform the Court, swinging it from fairly moderate to solidly conservative. So, why do we invest this kind of power and responsibility in someone who did not win the most votes in the presidential election? The answer, of course, is the Electoral College — an outdated institution that was established as a compromise among the Founding Fathers, who wanted to ensure separation of power between the executive and legislative branches and who were skeptical about the ability of the average citizen to be informed enough to cast a meaningful vote.
The Electoral College is complex, archaic, and uniquely American. Each state is given a set number of electoral votes equal to the number of representatives and senators a state has. These electors are the official selectors of the President and Vice President. According to electoral law, these electors meet in their respective state Capitols on the Monday after the second Wednesday in December to cast their official ballots for president. The electors are expected to vote for the popular vote winner of their state, not the popular vote winner nation-wide.
Thus, a presidential candidate needs to win a majority of electoral votes (at least 270) in order to win the presidency, with the national popular vote being largely meaningless.
This mismatch between the popular vote and electoral vote is rare (happening only five times since 1824, when the popular vote was first held), though concerning nonetheless. Even more concerning is the fact that given our increasingly partisan nature, these types of mismatches seem more and more likely to occur — and likely to the detriment of Democratic candidates. In 1824 we saw Andrew Jackson win a plurality of both popular and electoral votes, though the House of Representatives awarded the presidency to John Quincy Adams instead. 1824 was the only election in which a contingency election was required. Since no candidate won a majority of electoral votes, the House of Representatives was charged with selecting the President while the Senate chose the Vice President — just as the 12th Amendment specifies. In 1876, Samuel Tilden won the popular vote over Rutherford B. Hayes, but the electoral vote was contested in three Southern states. A bipartisan commission was assembled to determine the rightful winner of those electoral votes, though that bipartisan commission ended up being made up of eight Republicans and seven Democrats. Unsurprisingly, each state ended up awarding their votes to Hayes based on an 8–7 vote for each.
1888 saw incumbent president Grover Cleveland win the popular vote, but lose the Electoral College to Benjamin Harrison. This was an historically problematic election, with a lot of ballot box stuffing and fraudulent voting, leading to legitimate concerns about whether Harrison was the legitimate winner. After one term, Harrison lost both the popular and electoral vote to Cleveland in a rematch in the 1892 election.
In 2000, we saw George Bush win Florida’s electoral votes by 537 votes, providing him the 271 electoral votes needed to win the presidency despite losing the popular vote by roughly half a million votes.
Finally, in 2016, Donald Trump won over voters in Wisconsin, Michigan, and Pennsylvania by a total of 87,504 votes across all three states, giving him an Electoral College victory despite a national popular vote loss of roughly three million votes.
Problems With Minority Presidents Appointing SCOTUS Judges
By allowing presidents to govern after losing the popular vote, we seemingly violate the important democratic principle of political equality. Robert Dahl, arguably our most prolific democratic theorist, tells us that political equality means that each person’s vote must count the same. The Electoral College explicitly violates this norm — some states have more electoral power than others. Take for example Wyoming and California. According to the 2020 census, Wyoming has a population of 581,348 and three electoral votes while California has a population of 39.35 million with 55 electoral votes. This means that each of Wyoming’s electors represents 193,782 voters while each of California’s electors represents 715,455 voters. This flagrantly violates the norm of political equality, giving Wyoming voters more of a say in presidential selection than California voters.
The larger problem of allowing presidents to govern without winning the popular vote is the mismatch of power with the popular will. Elected officials are in charge of representing those that elected them and when the popular vote winner is not given the ability to govern, the popular will is largely undermined. This mismatch can be found by looking at the popularity of policies vis-a-vis the output of minority administrations. This is very clear when we compare the substance of recent SCOTUS decisions with public opinion on those issues.
In the Dobbs decision, the Supreme Court eliminated the constitutional right to abortion, largely violating the popular will on that issue. According to recent polling by Pew Research, a woman’s right to choose is supported by 61 percent of American voters, while only 37 percent of Americans believe it should be illegal in all or most cases. Additionally, SCOTUS recently ruled in New York State Rifle & Pistol Association V. Bruen that the New York law requiring residents seeking a concealed carry permit to demonstrate a need for such a permit. While public opinion on gun rights is a bit more split, only 19 percent of Americans support unlicensed concealed carry according to a Marquette Law School poll in May 2022.
The Supreme Court, of course, is under no obligation to weigh public opinion while making decisions. However, when it so flagrantly violates the public will, it risks it’s own institutional legitimacy, the very core of it’s enforcement power. The Court famously gave itself the power of judicial review and has absolutely no constitutionally granted enforcement power.
We, as citizens, are asked to follow the Supreme Court’s rulings because of our respect for the law and the legal reasoning presented in the decisions. However, when presidents lose the popular vote and appoint SCOTUS judges, we are likely to see decisions handed down that clash with public opinion, continuing the erosion of the Court’s legitimacy. That means we need to reform the Electoral College to ensure that those that appoint these judges are doing so with at least a plurality of voters on their side.
