Let’s get this clear at the start:
The Electoral College is not going away. The Constitution’s provisions for selecting Supreme Court justices are not going to change.
And candidates who suggest they can change them are misleading the voters they are wooing.
That’s not an endorsement of the current election system, which has produced two presidents who won a minority of votes in the last five elections and could become more skewed in the future. It hardly reflects the unhappiness many of us feel that a president who won a minority of votes likely has solidified conservative control of the Supreme Court for many years.
Rather it reflects reality: the near impossibility of achieving such far-reaching changes as scrapping the Electoral College for electing presidents or revamping how presidents nominate Supreme Court justices and the Senate confirms them.
Presidents, even landslide winners, have only limited capital for change. It would be far better for the next president to choose goals more apt to be realized: Fixing the nation’s health care system, pursuing energy policies protecting the environment, revitalizing aging infrastructure, reducing income inequality and providing long-term financial security for over-committed federal entitlement programs.
But candidates have discovered that attacking the Electoral College is an easy applause line with Democratic audiences, after it provided a win for Donald Trump despite his popular vote deficit of 3 million votes.
Elizabeth Warren got a rousing reaction during a CNN Town Hall at historically black Jackson State College in Mississippi when she declared, “Every vote matters, and that means get rid of the Electoral College.”
Several Democratic rivals have echoed her comments in varying degrees, including Sens. Kamala Harris and Kirsten Gillibrand, Mayor Pete Buttigieg, former HUD Secretary Julian Castro and former Texas Rep. Beto O’Rourke, who called the current system “warped” at a progressive summit Monday in Washington.
Meanwhile, several candidates have urged revamping the Supreme Court. Buttigieg, the South Bend, Ind., mayor, proposed expanding it from 9 to 15 with five Democratic appointees and five Republicans, and letting those 10 pick the other five, a proposal O’Rourke said “we should explore.” Sen. Cory Booker of New Jersey suggested term limits for Supreme Court justice, while Harris, Gillibrand and Warren all said they were open to changes.
A congressional majority could change the number of Supreme Court justices, but it requires two-thirds of both the House and Senate and three-fourths of the states to approve a constitutional amendment changing how they are picked. Both seem virtually impossible. Franklin D. Roosevelt suffered his most ignominious congressional defeat when he sought to add liberal justices to balance a conservative-dominated court just months after his landslide 1936 re-election.
The basic problem is that a popular vote system would reduce the electoral power of smaller states. Warren drew sharp questions on that very point in a recent appearance on Iowa Public Television’s “Iowa Press.” Besides, it’s hard to see the Republican-controlled Senate eliminating the court’s current conservative majority of five Republican-nominated justices.
Unsurprisingly, partisan considerations are clouding this debate. Democrats fear they may continue to win the popular vote, but struggle to win an electoral majority. Some Democratic controlled legislatures have passed measures instructing their states’ electors to support the national popular vote winner, regardless of the state’s result, but not enough yet to determine the 270 needed for election.
Meanwhile, Trump, who derided the Electoral College before winning his 2016 majority, now supports it as “far better for the U.S.A.”
Another concern for many Democrats is that a combination of population trends and increased straight ticket voting is creating an institutional barrier to their winning not only the presidency, but also the Senate. More generally smaller states in the South, the Plains and the Rocky Mountains vote solidly Republican than larger ones on the two coasts vote Democratic.
Republicans have a built-in head start because the 22 states that voted Republican in every election since 2000 have 40 Republicans among their 44 senators; only 15 states are similarly solidly Democratic, and they have 29 Democrats and just one Republican. After an election in which voters in three pro-Trump states ousted Democratic senators, the 2020 election may show if the Democrats can win the Senate in what is on paper a more favorable senatorial landscape for them.
The 53 Republican senators currently represent about 40 million fewer Americans than the 47 Democrats; a study by Baruch College’s David Birdsell concluded that, by 2040, 70 percent of the population will live in 15 states that mainly vote Democratic but have just 30 of the 100 senators.
The Senate would tilt slightly less Republican by granting long overdue statehood to the District of Columbia and possibly also Puerto Rico. That only requires House and Senate majorities, not a constitutional amendment. But it would face solid GOP opposition because it could add four Democratic senators.
Advocating sweeping structural constitutional changes probably won’t hurt the candidates making them, since polls show a strong majority favors scrapping the Electoral College. But it’s essentially as demagogic for liberals as promising an end to all abortions is for conservatives.
Carl P. Leubsdorf is the former Washington bureau chief of the Dallas Morning News.