Gongol.com Archives: December 2023
December 20, 2023
The decision by the Colorado Supreme Court to find that Donald Trump is ineligible to appear on the state's primary election ballot is an extraordinary one, in the most literal sense of the word, as the court itself acknowledged: "We are also cognizant that we travel in uncharted territory". ■ The novelty of the situation is, naturally, a consequence of the former President's uniquely malignant behavior. Even the notorious Presidential failure James Buchanan left office without stirring violence. And though we've been using Oliver Wendell Holmes's phrase "hard cases make bad law" since 1904, even hard cases must be decided when the circumstances present themselves. ■ The Colorado decision makes an emphatic case in favor of preserving an institution that comes under almost perpetual criticism: The Electoral College. The Electoral College made sense at the time of the Founding in part because the logistics of coordinating an election prior to electronic communications or high-speed travel favored a system that made votes easier to manage piecemeal. ■ We may have the benefits of instantaneous communications today, but the merits of a compartmentalized election -- one that takes place state-by-state, largely under state-specific rules, before being reassembled at a known time and place -- are at least as valuable today as they were in 1787, if not even more so. A national popular vote, in which Presidential elections would be decided strictly by the total number of votes cast nationwide, would inevitably cause unintended and unpopular consequences. ■ First, it would turn every case like Colorado's into a matter of bitter national contention: Under the Electoral College approach, whichever side loses the present Colorado case still lives to "fight another day" in 49 other states, plus DC. But if a national popular vote were to be the standard, then it's virtually impossible to see how any decision about eligibility wouldn't instantly become a case for the United States Supreme Court, with the decision binding on every ballot in every voter's hands, nationwide. ■ Second, and probably more consequentially, a national popular vote could only be administered by a very powerful national bureaucracy: Imagine the power of the Federal Election Commission, but on steroids. It would need to have not only the reach to conduct an electoral count in every state, but also the power to enforce compliance with its decisions everywhere. The only way to achieve a water-tight national count would be to conduct a vote beyond the reach of any state-level supreme court decision binding upon state-level elected officials. ■ Of course, such a bureaucracy would have to be staffed, and leadership would have to be appointed. The current FEC governance structure depends far upon goodwill and bipartisan cooperation to achieve its already difficult work. Any bureaucracy big enough to set and enforce the rules for a national election would become a prize too valuable not to become nearly as hotly contested as the election itself, since who controls the rules becomes who controls the outcomes. ■ Compartmentalizing our elections through the mechanism of the Electoral College may be an imperfect approach; there is certainly a case to be made for expanding the House of Representatives not just for its own sake, but to make the Electoral College a better approximation of the popular vote. But if the Colorado case is hot (which indeed it is), then abandoning the Electoral College would only make it fifty times more explosive.
