by Jason Harrow, Chief Counsel
It’s a psychological fact that people are more likely to remember the beginning and end of anything they read than the middle part. So maybe my brain chemistry is what’s making me focus on the last line in Justice Kagan’s opinion for the Supreme Court in Chiafalo v. Washington, the case decided yesterday about presidential electors that Equal Citizens founder Larry Lessig argued. (I argued the companion case, Baca, which got a one-sentence opinion that said: “See Chiafalo.”).
But I don’t think it’s brain chemistry that’s keeping the line in my mind. I think I’m focusing on the last line because I want to put its ideal into reality.
Here’s the line. Justice Kagan has just written a whole opinion in which she explains why, for her, political history and the intent of the Framers and the text of the Constitution all permit states to control the votes of its Electoral College members. But then she gets to the part where she, a judge, exercises judgment: that is, the part why she explains why the decision makes sense. Why it’s a good thing that the Supreme Court sided with the States. And so she says that a state may validly instruct “its electors that they have no ground for reversing the vote of millions of its citizens” because that instruction
accords . . . with the trust of a Nation that here, We the People rule.
Except here’s the thing: as of today, July 7, 2020, that’s not quite right; We the People is an ideal, more than reality. Because here, We the People do not rule when it comes to picking the President. At least not totally. Not yet.
Here is what I mean. In five presidential elections so far, the vote of We the People has been defeated by the vote of We the Electors. In 2016, Hillary Clinton got 65.8 million We the People votes. Donald Trump got 63 million We the People votes. But Clinton did not win. That is because Trump got 304 We the Electors votes, and Clinton got only 227 We the Electors votes. And so President Trump is the President now.
But it gets worse. Because the votes of We the Electors are the only votes that matter to who is selected President, the candidates did not seek the vote of all of We the People. No, the candidates campaigned in a few key swing states, where what should be We the People are really We the Importants, because the votes in those states really matter to who wins the votes of We the Electors. In all other states—some populous (California, Texas); some not (Delaware, Wyoming); some industrial (Ohio); some urban (Rhode Island); some rural (Montana); some deep red (Oklahoma); some bright blue (Oregon)—We the People were more like We the Ignored.
That pattern will, of course, repeat itself this year. Arizona, Michigan, Wisconsin? Those are We the Importants. California, Utah, Alabama? Those are We the Ignored. And then, a few weeks after we all vote, the vote of We the Electors will determine the winner, based on who got the most votes of some particular group of We the Importants.
It doesn’t have to be this way. There are several viable proposals to make Justice Kagan’s ideal world a reality, and things could change soon, if we all work hard to make it happen. The National Popular Vote Compact, for instance, is a clever law that awards a state’s electors to the winner of the national popular vote, and it takes effect when states with 270 electoral votes—the number required to win—pass the law. We are pretty close. The tally stands at 196 votes.
There are other proposals too. My friends at Making Every Vote Count have proposed a new idea called the Voter Choice Ballot, which would permit voters to transfer their votes to the winner of the National Popular Vote even if that candidate is not their first choice. Meanwhile, we at Equal Citizens are litigating several other lawsuits challenging the states’ use of winner-take-all in the electoral college, and getting rid of that would go a long to ensuring that We the People rule. We are also thinking about how to craft a constitutional amendment that could make many people from across the political spectrum happy. In other words, that could win real support from the real We the People.
And so what we need now is directed, guided conversation about this topic, and we’re starting that up soon in our new project, Fix The College. We need to find viable ways to Fix The College because today’s opinion shows that we all want We the People to rule. Justice Kagan’s opinion was joined by seven justices: four liberals, and three conservatives. And Justices Thomas and Gorsuch, though they didn’t sign on to that line, agreed with the result Justice Kagan reached. The whole Supreme Court wants to believe in We the People—though it should have admitted we’re not there yet.
But there is hope in that unanimity. I think we are all like the Supreme Court in that we all want to believe that We the People pick the President. Liberals and conservatives and independents, Democrats and Republicans, young and old: We the People, to add a word to Justice Kagan’s line, should rule. We have to make it happen.