Calling the Electoral College Racist Ignores What the Constitution Says Today

Democrats spent this week deciding what to do with the power voters handed them in state capitols, and near the top of the list is how Americans choose a president. Politico reported that the party now holds unified control of enough swing states to sidestep the Electoral College, and it posed the question hanging over the next legislative sessions: will Democrats actually back the effort?

The vehicle is the National Popular Vote Interstate Compact. Member states pledge to award all of their electors to the winner of the national vote, and the pledge takes effect only once members hold a majority of the Electoral College. The Associated Press, in a report published by PBS NewsHour, counted 18 Democratic-run states with 222 electoral votes already signed on and calculated that Pennsylvania, Wisconsin and Michigan, plus either Arizona or Nevada, would carry the compact past 270.

Now the debate has taken a sharper edge. In a clip published Friday by Breitbart News, Nevada Gov.-elect Aaron Ford, a Democrat whose state could supply some of the deciding votes, said he supports undoing the Electoral College and described it as "based in racist underpinnings".

That charge deserves a serious answer rather than a shrug. Repeated often enough, it can make a change the size of a constitutional amendment feel like a simple act of justice.

Start with the honest part of the history. The original Constitution counted three-fifths of enslaved people when apportioning seats in the House, and because each state's electors equal its senators plus its representatives, that formula also padded the electoral votes of slaveholding states. Slavery cast a shadow over many of the bargains struck in 1787, and Americans should say so plainly.

But the Constitution did not stay frozen in 1787. The Fourteenth Amendment, ratified after the Civil War, erased the three-fifths formula and required House seats to be apportioned by "counting the whole number of persons in each State". Every electoral vote cast in modern times rests on that rule. The Electoral College Democrats now want to sidestep is the system as Americans repaired it, not the one they inherited.

What remains is the federal design. Article II gives each state electors equal to its full delegation in Congress and leaves it to each legislature to decide how they are appointed. The two electors every state receives for its senators carry into presidential elections the same bargain between large and small states that created the Senate. The Twelfth Amendment, adopted in 1804, kept that shape even in a deadlock: if no candidate wins a majority of electors, the House chooses the president, with each state's delegation casting a single vote. From the first ballot to the last resort, the president is chosen by a union of states.

Backers of the compact lean on Article II's grant of power to state legislatures. But the Constitution also says no state may, without the consent of Congress, "enter into any Agreement or Compact with another State". A pact among a bloc of states to change how the presidency is won, without amending the Constitution, is exactly the kind of arrangement that clause exists to police. And for a change this large, Article V supplies the honest route: an amendment proposed by two-thirds of Congress and ratified by three-fourths of the states.

Not every Democrat is eager to follow. Townhall reported that Wisconsin Gov. Tony Evers, a Democrat whose party will control all of the state's government come January, is warning his own side against the compact. That matters. Wisconsin's 10 electoral votes are among those the compact needs, and caution from a sitting Democratic governor shows this is not a simple left-versus-right fight. Leaders of swing and smaller states have good reason to think twice before promising their electors to whoever runs up the biggest margins somewhere else.

Ford's own state makes the point. Nevada is one of the states the AP identified as a possible final piece of the puzzle, yet under the compact its electors could be handed to a candidate Nevadans voted against. The same is true of every member state. Voters in each should put a simple question to their legislators: who should decide where our electoral votes go, us or a national tally?

The decision now moves to statehouses, where Democrats take full control in January in states such as Wisconsin. Backers will need bills, hearings and governors' signatures in each state they hope to add. If they reach 270, the question of congressional consent under the Compact Clause is almost certain to end up before federal judges, and a newly Democratic Congress could be asked to bless the deal.

Before any of that, citizens deserve a debate on the merits. The Electoral College has flaws, as every human institution does. But the system written into the Constitution after the Civil War is a system of states, not a monument to slavery, and changing it belongs to the amendment process the Framers built for exactly this purpose.