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.