Erwin Chemerinsky, a law professor and current Dean of the University of California at Irvine Law School, has what can only be described as a bizarre column in the Daily News arguing that the Electoral College is unconstitutional:
The problem of the Electoral College is compounded by state laws that provide that electoral votes are awarded on a winner-take-all basis. In all states except Nebraska and Maine, the candidate who wins the popular vote in a state — even by the narrowest margin — gets all of the electoral votes from that state. This, too, greatly increases the chances of the Electoral College choosing a president who lost the popular vote.
Article II of the Constitution creates the Electoral College and defines its membership, but remember that the text of the Constitution is modified by its amendments. Article I authorizes Congress to regulate interstate commerce, and this would allow federal licensing of the press, except that the First Amendment makes that unconstitutional. Article III permits a federal court to hear a suit against a state by citizens of other states, but the Eleventh Amendment was adopted to preclude such litigation.
The Supreme Court long has held that the Fifth Amendment assurance of due process of law includes a requirement that the federal government not deny any person equal protection of the laws. And for over a half century, the court has ruled that a core aspect of equal protection is one person, one vote; every person must have an equal ability to influence the outcome of an election.
Courts thus can and should declare that the guarantee of equal protection found in the Fifth Amendment modifies Article II of the Constitution and requires that electors be allocated strictly on the basis of population. Also, they should hold “winner take all,” provided by state law and not the Constitution, to be unconstitutional. This would virtually ensure that the winner of the popular vote would be chosen as president. That is what should happen in a democracy.
Even accepting Chemerinsky’s argument about the impact as true, the idea that this makes the Electoral College unconstitutional is simply absurd. First of all, the Electoral College system as it exists today is based on what is set forth in Article II of the Constitution as amended by subsequent amendments. The most significant of these amendments for our purposes, of course, is the Twelfth Amendment, which was based in the wake of the Election of 1800 and changed the manner in which the President and Vice-President were elected. Under the system as originally devised, the President would be the person with the most Electoral Votes, and the Vice-President would be the person with the second-highest number of such votes. For the first two elections, when George Washington and John Adams were essentially the only people on the ballot, this system worked out just fine. By 1796, though, when John Adams and Thomas Jefferson, who had already become political rivals due to differing views on how strong the national government should be, ended up as President and Vice-President respectively. When the two ran again in 1800, the divisions that were only hinted at four years earlier were even more apparent and, after one of the dirtiest Presidential campaigns in American history, the top two Electoral vote recipients were Jefferson and Aaron Burr, who was ostensibly running to be Jefferson’s Vice-President. Since nobody had an Electoral College majority, though, the election went to the House of Representatives which took, thanks mostly to behind the scenes scheming by Alexander Hamilton against Jefferson, took thirty-six ballots before declaring Jefferson the winner. As a result of the chaos of 1800, Congress proposed, and the states ratified, the 12th Amendment, which essentially created the system we have today where Presidential and Vice-Presidential candidates are voted separately by the Electoral College and the Presidential candidate receiving the majority of Electoral Votes becomes President of the United States. This is the system that we’ve had for the subsequent two centuries, and it’s the system that Chemerinsky claims are “unconstitutional,” a claim that seems laughably absurd on its face and even more so given that someone with Chermerinsky’s qualifications should know better than to even make.
Put simply, there is no support for the idea that a Federal Court could ever hold that a part of the Constitution as itself being unconstitutional. Theoretically, of course, an Amendment to the Constitution could significantly change another part, but that’s inherent in the Amendment process and quite different from what Chemerinsky is suggesting. Under his argument, the Electoral College, which operates pursuant to the provisions of Article II as amended by the Twelfth Amendment, is itself unconstitutional because it grants unequal power to people residing in states with small populations. Even accepting this as true, though, there is simply no merit in the idea that this is in any way unconstitutional since the Constitution itself must be interpreted as an entire document, not as individual segments. The only way to repeal a part of the Constitution such as the Electoral College would be to amend the Constitution itself, as Congress and the states did in the wake of the electoral mess after the Election of 1800 when they made changes to how the President was elected. Those changes, however, didn’t change the fundamental nature of the Electoral College, nor did they make any change that provides any support for Chermerinsky’s argument that the Electoral College is unconstitutional. Indeed, if someone were to make the argument that he makes here in a Federal Court, they’d most likely be laughed out of the building.
Chemerinsky seems to recognize the absurdity of his own argument about halfway through the column when he switches from talking about the alleged unfairness of the Electoral College system itself and begins talking about the unfairness of the “winner take all” system that most states use to allocate Electoral College votes:
A number of lawsuits have been filed challenging the constitutionality of the allocation of representation in the Electoral College and the winner-take-all rule. The law is clear that a case challenging election procedures does not become moot when the election is over because the underlying issues remain. Courts should use these cases to require that in the future the votes in the Electoral College be allocated consistent with population and that each state’s votes be decided proportionate to the popular vote in the state.
Chermerinsky is on somewhat surer ground here in that there is much to criticize about the “winner take all” system, and nothing in the Constitution that requires that states use this method to allocate Electoral Votes. Unfortunately for his argument, though, there is even less support for the idea that a Federal Court would have the authority to declare this method of allocation unconstitutional. Article II, Section I, Clause 2 of the Constitution provides that
Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
This means that each state has the discretion to choose electors however it sees fit. Over the years, there have been a number of different methods of allocation that the states have used, including allocation according to which candidate won each Congressional District, one where delegates are awarded proportionally, the winner take all system that dominates today, and even one where electors are chosen solely by the state legislature without regard to the popular vote in the state on Election Day. States can also choose whether electors are bound by the results of the popular vote in their respective state, or whether they are free to vote their conscience. While I agree with Chemerinsky that a system where electors are allocated proportionally would be better than the winner take all system that dominates today, there’s simply no support for the idea that it is Constitutionally mandated. In theory, I suppose that a state’s allocation method could be found unconstitutional, but it would have to be an egregious case that clearly violated another Constitutional provision. For example, if a state decided to allocate Electoral Votes in a manner that only allowed white men to serve as electors, or only permitted electors to take the votes of white men into account, then that would clearly violate the 14th Amendment. A broader argument that an allocation method that provides that the person who wins the popular vote in the state gets all of the Electoral Votes, though, does not come close to violating the language or intent of the 14th Amendment or any other part of the Constitution. Fortunately for those who support the idea of making the Electoral College ‘fairer’ in the sense of it more closely reflecting the will of the public, changing the method by which Electors are allocated, accomplishing that is far easier than getting rid of the Electoral College entirely. Where the later would require a Constitutional Amendment, the former requires only changing the laws at the state level, which can happen via a simple majority in the legislature. Rather than pushing impractical ideas that would require a Constitutional Amendment that probably would not be adopted, or legal theories that are so meritless that they would likely result in the awarding of sanctions for making a frivolous argument in Federal Court, I suggest Chemerinsky and those who support him get to work on that project.
