The Electoral College, Part 4: How Can it be Changed?
Sherwin Markman • July 7, 2020
On Monday, July 6, the Supreme Court, in a unanimous decision written by Justice Kagan, decided that a state may require Electors to vote as that state’s popular vote determines; i.e., the Electors may be stripped of all individual discretion — no “unfaithful Electors” are allowed. But, although Justice Kagan concludes her opinion with the battle cry phrase “We the people rule,” the people, of course, do not rule equally, and that is why the Electoral College must be changed.
It was Voltaire who wrote, “The perfect is the enemy of the good.” This wisdom must be borne in mind when considering what we should advocate as the solution to our defective Electoral College system.
It is apparent that the democratic ideal for election of the American president would be by a straight vote of the American people — all of them, regardless of where they reside, each of them voting equally. That, of course, is the “perfect.” But we must consider whether achieving that ever would be possible in our federal system. I submit that it would not, and therefore we must broaden our search for a solution.
We must start with our Constitution. Amending it is required if the popular election of presidents is to come about, and, as our founders intended, amendments are extraordinarily difficult to achieve. The Constitution directs that any amendment must have the favorable votes of two-thirds of both the House and the Senate, followed by the concurrence of three-fourths (38) of the states, a result that, on this issue, in this day and age, is difficult to imagine.
Thus it is that Sen. Lindsey Graham (R-S.C.) has stated that doing away with the Electoral College is “driven by the idea the Democrats want rural America to go away politically”; Sen. Marco Rubio (R-Fla.) has opined that the Electoral College is a “work of genius”; and, of course, President Trump has not been quiet, stating that “with the popular vote…the cities would end up running the country.” Sadly, in recent years Republican support for the popular vote has fallen from 54 percent to 19 percent. Therefore, in my opinion, we must look elsewhere for an achievable solution.
There have been more than 752 attempts to change our presidential electoral process, and none of them have managed to solve our system’s fundamental failures.
Of course, there was the 12th Amendment which separated the presidential and vice presidential electoral voting; the 13th, 14th, and 15th Amendments which abolished slavery and granted all Americans the right to vote; the 19th Amendment which gave the vote to women; the 20th Amendment which provided that electoral disputes are to be resolved by the incoming rather than the outgoing Congress; and, finally, the 23rd Amendment that gave three electoral votes to the District of Columbia. But these amendments failed to resolve the original sins of potential elections of presidents who lose the popular vote; or, when there is no electoral majority, the entirely undemocratic manner of choosing a president by a state-by-state vote in the House.
There is one proposed solution that is currently popular among “blue” states, but which, I think, is of doubtful constitutionality, and, like the popular vote alternative, stands little chance of ultimate viability.
It is called “The National Vote Interstate Compact,” an agreement among a group of states whose combined total of electoral votes must exceed the 270 required for victory, and binds those states to cast their electoral votes for the national popular vote presidential winner, regardless of how each of those states may have voted. As of now, this compact has been agreed to by 15 states, including Maryland. Together, the electoral votes of these states total 190 electoral votes, well short of the 270 votes needed to effectuate the compact. What is notable is that all 15 states are “blue” states. Not a single “red” state has signed on, and, in my opinion, none will. Thus, this compact idea probably will fail for the same reasons that would defeat the popular vote alternative. There is also a serious question of constitutionality inasmuch as Article I, Section 10 of the Constitution prohibits any state from entering into “any Agreement or Compact with another state” without the “consent of Congress”.
There is one solution which, although not perfect, moves us well down the road toward the one person-one vote ideal, and which, in in my judgment, is achievable, and that is a constitutional amendment that requires each state, while retaining the electoral votes it now possesses, to cast those votes in direct proportion to its popular vote, and not “winner take all” which is now the case in all states except Maine and Nebraska. Although this solution does not entirely eliminate the big state-small state disparity, it severely diminishes it, as would be seen when future campaigns would be hard fought even in such now ignored states such as California. If it had been in place in 2016, Donald Trump probably would have been defeated.
As for what should happen if there is no electoral majority, in my mind the solution is self-apparent: Allow the House, whose membership broadly reflects our population, to vote not state by state but member by member, as it does on any other issue, with a majority choosing the president; and let the Senate continue to elect the vice president, as it does now when there is no such majority.
I am not suggesting that this solution should be the initial bargaining position, which perhaps should be for outright popular voting. But it should be the ultimate compromise, which I think is possible. I would point out that one hallmark of Lyndon Johnson’s presidency in which I served was our willingness to compromise, a willingness that was matched by a significant number of Republicans. As Senate Minority Leader Everett Dirksen (R-Ill.) said in regard to civil rights legislation, “Nothing is as powerful as an idea whose time has come.”
Sherwin Markman, a graduate of the Yale Law School, lives in Rock Hall, Maryland. He served as an assistant to President Lyndon Johnson, after which was a trial lawyer in Washington, D.C. He has published several books, including one dealing with the Electoral College. He has also taught and lectured about the American political system.
Common Sense for the Eastern Shore
Right now, Congress is working on a fast-track bill that would make historic cuts to basic needs programs in order to finance another round of tax breaks for the wealthy and big corporations.
The House Agriculture Committee recently voted, along party lines, to advance legislation that would cut as much as $300 million from the Supplemental Nutrition Assistance Program. SNAP is the nation’s most important anti-hunger program, helping more than 41 million people in the U.S. pay for food. With potential cuts this large, it helps to know who benefits from this program in Maryland, and who would lose this assistance. The Center on Budget and Policy Priorities compiled data on SNAP beneficiaries by congressional district, cited below, and produced the Maryland state datasheet , shown below. In Maryland, in 2023-24, 1 in 9 people lived in a household with SNAP benefits. In Maryland’s First Congressional District, in 2023-24: Almost 34,000 households used SNAP benefits. Of those households, 43% had at least one senior (over age 60). 29% of SNAP recipients were people of color. 15% were Black, non-Hispanic, higher than 11.8% nationally. 6% were Hispanic (19.4% nationally). There were 24,700 total veterans (ages 18-64). Of those, 2,200 lived in households that used SNAP benefits (9%). The CBPP SNAP datasheet for Maryland is below. See data from all the states and download factsheets here.
Apparently, some people think that the GOP’s “big beautiful bill” is a foregone conclusion, and that the struggle over the budget and Trump’s agenda is over and done. Not true. On Sunday night, the bill — given the alternate name “Big Bad Bullsh*t Bill” by the Democratic Women’s Caucus — was voted out of the House Budget Committee. The GOP plan is to pass this legislation in the House before Memorial Day. But that’s not the end of it. As Jessica Craven explained in her Chop Wood Carry Water column: “Remember, we have at least six weeks left in this process. The bill has to: Pass the House, Then head to the Senate where it will likely be rewritten almost completely, Then be passed there, Then be brought back to the House for reconciliation, And then, if the House changes that version at all, Go back to the Senate for another vote.” She adds, “Every step of that process is a place for us to kill it.” The bill is over a thousand pages long, and the American people will not get a chance to read it until it has passed the House. But, thanks to 5Calls , we know it includes:
Let's talk about our Eastern Shore Delegation, the representatives who are supposed to fight for our nine Shore counties in Annapolis, and what they actually got up to this session.
For the first time in recent memory, Virginia Democrats have candidates running in all 100 House of Delegates districts — a milestone party leaders and grassroots organizers say reflects rising momentum as President Donald Trump’s second term continues to galvanize opposition.
The 447th legislative session of the Maryland General Assembly adjourned on April 8. This End of Session Report highlights the work Shore Progress has done to fight for working families and bring real results home to the Shore. Over the 90-day session, lawmakers debated 1,901 bills and passed 878 into law. Shore Progress and members supported legislation that delivers for the Eastern Shore, protecting our environment, expanding access to housing and healthcare, strengthening workers’ rights, and more. Shore Progress Supported Legislation By The Numbers: Over 60 pieces of our backed legislation were passed. Another 15 passed in one Chamber but not the other. Legislation details are below, past the budget section. The 2026 Maryland State Budget How We Got Here: Maryland’s budget problems didn’t start overnight. They began under Governor Larry Hogan. Governor Hogan expanded the state budget yearly but blocked the legislature from moving money around or making common-sense changes. Instead of fixing the structural issues, Hogan used federal covid relief funds to hide the cracks and drained our state’s savings from $5.5 billion to $2.3 billion to boost his image before leaving office. How Trump/Musk Made It Worse: Maryland is facing a new fiscal crisis driven by the Trump–Musk administration, whose trade wars, tariff policies, and deep federal cuts have hit us harder than most, costing the state over 30,000 jobs, shuttering offices, and erasing promised investments. A University of Maryland study estimates Trump’s tariffs alone could cost us $2 billion, and those federal cuts have already added $300 million to our budget deficit. Covid aid gave us a short-term boost and even created a fake surplus under Hogan, but that money is gone, while housing, healthcare, and college prices keep rising. The Trump–Musk White House is only making things worse by slashing funding, gutting services, and eliminating research that Marylanders rely on. How The State Budget Fixes These Issues: This year, Maryland faced a $3 billion budget gap, and the General Assembly fixed it with a smart mix of cuts and fair new revenue, while protecting working families, schools, and health care. The 2025 Budget cuts $1.9 billion ($400 million less than last year) without gutting services people rely on. The General Assembly raised $1.2 billion in fair new revenue, mostly from the wealthiest Marylanders. The Budget ended with a $350 million surplus, plus $2.4 billion saved in the Rainy Day Fund (more than 9% of general fund revenue), which came in $7 million above what the Spending Affordability Committee called for. The budget protects funding for our schools, health care, transit, and public workers. The budget delivers real wins: $800 million more annually for transit and infrastructure, plus $500 million for long-term transportation needs. It invests $9.7 billion in public schools and boosts local education aid by $572.5 million, a 7% increase. If current revenue trends hold, no new taxes will be needed next session. Even better, 94% of Marylanders will see a tax cut or no change, while only the wealthiest 5% will finally pay their fair share. The tax system is smarter now. We’re: Taxing IT and data services like Texas and D.C. do; Raising taxes on cannabis and sports betting, not groceries or medicine; and Letting counties adjust income taxes. The budget also restores critical funding: $122 million for teacher planning $15 million for cancer research $11 million for crime victims $7 million for local business zones, and Continued support for public TV, the arts, and BCCC The budget invests in People with disabilities, with $181 million in services Growing private-sector jobs with $139 million in funding, including $27.5 million for quantum tech, $16 million for the Sunny Day Fund, and $10 million for infrastructure loans. Health care is protected for 1.5 million Marylanders, with $15.6 billion for Medicaid and higher provider pay. Public safety is getting a boost too, with $60 million for victim services, $5.5 million for juvenile services, and $5 million for parole and probation staffing. This budget also tackles climate change with $100 million for clean energy and solar projects, and $200 million in potential ratepayer relief. Public workers get a well-deserved raise, with $200 million in salary increases, including a 1% COLA and ~2.5% raises for union workers. The ultra-wealthy will finally chip in to pay for it: People earning over $750,000 will pay more, Millionaires will pay 6.5%, and Capital gains over $350,000 get a 2% surcharge. Deductions are capped for high earners, but working families can still deduct student loans, medical debt, and donations. This budget is bold, fair, and built to last. That’s why Shore Progress proudly supports it. Click on the arrows below for details in each section.
