The Twenty-Eighth Amendment?: Beyond Abolishing the Electoral College

Acknowledgements

Preface to the Revised Edition

Since the initial version of The Twenty-Eighth Amendment? was launched as the presidential primaries began during February 2020, many surprising and mostly disturbing events have occurred that I now wish to address in this book. Least upsetting and perhaps not that surprising was Joe Biden’s resurrection—his transformation from an also-ran to becoming the presidential nominee of the Democratic Party. While Biden’s emergence has been momentous, it has been eclipsed by the coronavirus pandemic, the economic collapse prompted by measures to contain the pandemic, the public outrage arising from police brutality targeting Blacks, and the widespread perception that President Trump has utterly failed to provide effective leadership in addressing these simultaneous crises.

While this book focuses on the history of the structures and processes governing presidential elections and on proposals for future change in how presidential elections are conducted, these recent events have impacted both my thinking and my telling of the story that follows. Much of what was in the original manuscript needs no revision. The original proposal still seems sound, even if I illustrate that proposal by referring to politicians (Kamala Harris and Mitt Romney) whose current roles are far different than the one’s they play in illustrating my proposal. While the prior version of chapter 13 showed how the 28th Amendment would have given the Republicans incentives to replace Trump with Romney (or some other qualified conservative), I now think it useful to expand a bit on how my proposed constitutional changes could prompt the GOP to return to its earlier constitutional, democratic, and pluralistic tendencies. While the prior version of this penultimate chapter showed how the 28th Amendment would have given Democrats incentives to nominate a Black female for president, I want to expand on how it is now especially important for the Democrats to signal that their earlier nominations of Barack Obama and Hillary Clinton were not historical anomalies but indicative of their growing receptivity to those long suffering unequal treatment based on race or gender. By picking Harris as his VP running-mate, Biden has shown that he is attentive to this concern,

Nevertheless, it is the revised chapter 14 and the new chapter 15 where I have tried to envision the future—the fate of my proposed 28th Amendment and perhaps the fate of our democracy. In light of the crises that have emerged since the end of February. I have extensively rethought, rewritten, and expanded on what I had originally put into chapter 14. Not only do these revisions return Joe Biden to center stage, but they also develop two themes that were mentioned in the prior version of this book but can be expanded on here.

First, I have some to realize that this book is as much a challenge to reformers’ zeal for having a National Popular Vote Interstate Compact as it is a criticism of our existing primary system and the Electoral College. Thus, I add to chapter 14 another possible scenario of what is to come next: one where the NPVIC takes effect but with disastrous results.

Second, I have come to think that the health, economic, social, and political crises we have experienced will in time enhance support for the 28th Amendment. Thus, I now stress that the democratic movement I originally envisioned as necessary for its ratification will focus not only on egalitarian values but on communitarian ones as well. Our deeper understandings that we are all in this together may enable us to see in the 28th Amendment a way to pursue the ideals of communitarian democracy. A national preliminary election could enable voters to express their communitarian concerns to ensure that the finalists for the presidency are trustworthy leaders concerned with the long-term and collective needs of everyone within our national community. In the final election, voters can again express their disapproval of any of the finalists who they distrust, but they can rank-order their preferences among the trustworthy candidates based on their more partisan values.

As I was just beginning my career as a political scientist almost 50 years ago, one of the old guard in my department told me that the key to writing was to put what I regarded as a polished finished product in a drawer for a month, then reexamine and revise it before sending it out for review and/or publication. Only now do I fully realize the wisdom of this advice. In retrospect, I rushed into print the original version of this book, wanting it to be available for most of the 2020 presidential campaign. Having had a half year under quarantine to absorb new developments, reflect on what I had written, and make both some revisions and additions, I believe this is now a better book.

PS

Lakewood, Wisconsin

August, 2020

Preface

The nomination and election of Donald Trump in 2016 as the 45th American president shook my relatively optimistic view of our political and electoral systems. Though I had earlier proposed eliminating the Electoral College, I had nevertheless viewed it as acceptable. No longer. No system that legitimizes the presidency of a person having Trump’s various character flaws and inadequate political qualifications is satisfactory.

But this book is not about Trump. While I will make passing—mostly negative—references to him, this is not a brief indicting him. I recognize that others have more positive assessments of him, and I do not intend to defend my views of his deficiencies here. No book dealing with politics can escape personal and partisan perspectives, and now I have revealed mine. I have no special insight into Trump, and I have no crystal ball enabling me to predict how well history will assess his presidency. Unless he is removed through means of impeachment or electoral defeat, we are stuck with him.

Though our constitutional framers thought that impeachment might suffice as a means of ridding us of a presidential demagogue, that appears to be an unlikely method of restoring constitutional order. Even Alexander Hamilton acknowledged in Federalist #85 that the very characteristics that make a president a demagogue—their generating support by means of emotional nationalist appeals and portraying their adversaries as unpatriotic traitors—are the very traits they can employ to successfully fight impeachment. By characterizing supporters of impeachment as partisans bent on undermining the will of the people and the electoral results that brought them to office, they can turn impeachment from being a process for determining whether a president has significantly neglected or transgressed constitutional, legal, and democratic norms into a battle over political power. Particularly in our current highly partisan and polarized environment, the party aligned with a demagogue will normally have sufficient congressional strength to make impeachment futile. Thus, Trump will have to be removed by electoral means. My concern here is to fix the electoral system that put Trump in the White House, that could enable his reelection, and that could visit future unqualified and alarming demagogues on us.

This book makes a political prescription: that the Constitution be amended to make the selection of our president be governed by uniform national rules and procedures. I recommend abolishing the current state-centric systems featuring primary elections and the Electoral College and replacing them with two national elections that treat each citizen as an equal to every other citizen.

Primary elections now held sequentially in various states would be replaced by a single preliminary election in which voters throughout the nation would cast ballots structured and designed to make them think beyond their favorite candidate based on such matters as partisanship, ideology, social identity, and self-interest and to vote instead for or against various candidates based on how qualified they are and how widely they are trusted. The preliminary election would result in the nomination of five (or about five) candidates, who would continue and intensify their campaigns hoping to win the final election.

Our current general election, which is now decided by 538 members of the Electoral College would be replaced by this final election that would now be decided by ballots cast by voters nationally. In the final election, voters could still look beyond their favorite candidate, and indicate degrees of support among the various finalists depending not only on their perceived qualifications and trustworthiness but also on how well these candidates represent such personal concerns as the voter’s private interests, social identities, and ethical principles. To leave a little mystery to this book, I will not reveal the specifics of the ballots cast by voters during the preliminary and final elections until chapter 13, and many of the underlying bases behind my proposed amendment are not much discussed until the final chapter.

But let me mention here some of the motivations behind my proposal. Together, these two national elections will ensure that the winner and our next president would be supported (at least to some degree) by most citizens—by at least a majority and perhaps much more than a slim majority of citizens. Such elections would be egalitarian in the sense that they treat all voters as equals, wherever they live. Voters in Iowa and New Hampshire would no longer have disproportionate power in nominating candidates. Voters in Wyoming and other small (low population) states would not have more voting power than those in California and other large population states, based on how electoral votes are allocated among the states. Such a system would also reduce the inequality of treatment given to voters by candidates and campaign organizations under the current operation of the Electoral College system; it would remove incentives to ignore citizens in such safe states as Massachusetts and Kansas while extensively courting citizens in such in play states as Michigan and Florida.

This system would no doubt undermine our two-party system, but the Democratic and Republican parties should be worthy of widespread acceptance—at least more so than they are now. America is poorly served by the polarization that occurs as two parties struggle for power and the winner attempts to impose its ideological agenda on the nation. The system I propose would encourage a multitude of candidates to run in the preliminary election. The system I propose would encourage voters to indicate who they would find most acceptable if their first choice loses in the final election. It would encourage those who govern to do so as part of broader coalitions that are more representative of our diversity and that are more inclusive and compromising than at present.

But our system of electing the president must go beyond changing how ballots are tabulated in preliminary and final elections. All aspects of presidential elections should be part of a national process and subject to national regulations. We need a constitutional amendment that would authorize Congress and a new national election commission to regulate presidential elections. These national institutions should regulate campaign finance, establish national registration requirements, specify voter identification processes, and tabulate votes. Congress and the new election commission should have constitutional authority to regulate and oversee other federal elections. While this book is only concerned with presidential elections, it urges future amendments to address congressional contests.

Public intellectuals writing for such august magazines as the New Yorker, the Atlantic, the New Republic, and the National Review, columnists syndicated in various newspapers, and politicians seeking your vote have often weighed in on such issues. Many scholarly books and articles have been produced on this topic. Political scientists, historians, constitutional lawyers, and even engineers are just some of those from the academy who have proposed ditching the Electoral College and providing some alternative electoral process. I have contributed to this literature. Now retired as a professor of political science, I have little interest in appealing further to the academy.

This book is instead intended to engage a more general audience. Its genesis was in teaching a course on the Electoral College through the Osher Lifeline Learning Institute at the University of Kansas to senior citizens, some of whom had some knowledge of politics and history and others of whom had very little. This book dispenses with academic conventions—reviews of the literature, citations, mathematical or other formalizations, and deep philosophical foundations—in order to tell a story that is informative, interesting, and provocative. This is not to say that I will avoid what academics have to offer. It’s only to say that I will try to incorporate helpful academic matters in a way that is accessible to any citizen who is willing to invest a few hours reading about the topic but prefers something less difficult and tedious than an academic tome. Thus, I do not provide footnotes or detailed references for the ideas and facts presented here. If you want to learn about my sources and receive some recommendations for further readings on the topics that I mention, please see Sources and References at the end of the book.

I draw upon the social sciences to describe, explain, and evaluate our current method and some alternative methods of choosing our president. Recent scholarship in political science and constitutional law is used for these purposes.

I employ political theory to help readers understand the intellectual basis of the Electoral College as originally proposed, to explain how and why our electoral system has ended up in its present state of dysfunction, and to convey the new political knowledge that can guide reform efforts.

I introduce political history to elucidate the intentions of the framers of our Constitution when they created the Electoral College as a central branch of our federal government. They invented—or, better, concocted—the College as a political institution in the hope that it would facilitate the agreement necessary to create a union out of the disparate colonies that had joined forces during the American Revolution but remained largely autonomous states under the Articles of Confederation. Political history is also used to explain the political (largely democratic) forces that resulted in our present methods of screening, nominating, and selecting the president, methods that retained the formalities of the Electoral College while departing from the original intentions of its framers.

Current events and the naming of people prominent in the unfolding of these events are also incorporated to help us think imaginatively about how the 2020 election might play out, both under the current system and under my proposed system. I put center stage some familiar politicians and attribute roles for them that might seem odd given how events unfolded at the end of 2019 and early in 2020, but these people serve well to illustrate how institutions and ethics matter. Keep in mind that the focus of this book is on our electoral institutions and political processes, not on who wins in 2020. Candidates and even presidents come and go, but structures persist. In the fanciful scenarios provided in the concluding chapters, I suggest that most citizens could accept as our president qualified politicians who were not under consideration by most analysts as the primary season began—if their elevation to the highest office in the land resulted in a less polarized nation, a Republican Party that again adhered to the norms of pluralist politics, and the ratification of the 28th Amendment.

Throughout, I employ the techniques of memoir to tie these genres together and tell a story about how I became and have remained interested in the Electoral College. By using the genre of memoir, I can simply express the hopes that have sustained my now nearly two decades-long hobby of thinking about presidential elections. Presenting this story as a memoir might make it easier for readers to shed their disbelief and go along with my optimistic assumption that passing a constitutional amendment focusing on our only national election is not only desirable but possible.

The political prescriptions that I recommend constitute what I believe are a much better set of national rules for choosing and dismissing the principal political leader who is responsible to every American citizen than those currently in use. National elections are not simply procedures that enable a limited and unrepresentative slice of the citizenry to select a leader who will pursue their preferred ideological orientations. The purpose of elections is to find and choose governmental leaders who are acceptable to as many citizens as possible, and to make government worthy of everyone’s trust and obedience.

The central norm of democracy is equality: the views and interests of everyone who is subject to the decisions made by our president should be accorded equal concern and respect by those who seek or hold the highest office in the land. While our political equality does not extend to equal power—else we would not seek a just and effective method of choosing a leader who thereby gains vast and unequal authority over us—democratic equality requires that we all have an equal opportunity to vote and the right to have our vote count equally. Democratic equality is rooted in moral equality—in the understanding that all citizens within various political communities are entitled to equal respect, equal consideration, and equal treatment. Democratic equality requires that all citizens have an opportunity to vote with as few barriers to voting as possible. Democratic equality requires that we can express our genuine preferences among the candidates seeking our vote. Democratic equality requires that we all have a chance to express our disdain for candidates whom we deem unacceptable and unworthy of our trust, and whose unjustified programs we feel obliged to resist and/or disobey. Democratic equality requires that when a majority of our fellow citizens disapprove of a candidate, we can collectively veto that person’s rise to power. Democratic equality requires that when a majority of our citizens disapprove of a sitting president, we can remove him or her from office by electoral means.

PS

Lawrence, KS

February 2020

1

Out to Lunch

‘I should have done science,’ she (Pinky) said… [but] she’d developed a fascination with sorting right from wrong, and ended up in Political Theory.

Scott Turow, The Last Trial

The fall of 2000 was a game changer.

But my habits were still intact as the election between George W. Bush and Al Gore approached. Most days, I lunched with some of my political science colleagues, and we would rehash the same old topics. Could these Jayhawks finally deliver Coach Roy Williams an NCAA basketball championship? Would Roy leave KU and return to his alma mater, North Carolina? What is the point of making faculty undergo sexual harassment sensitivity training when, rumor has it, half the deans and provosts in Strong Hall are the ones bedding those who serve under them?

Where is Elaine? What is she doing in Norman? Is Oklahoma trying to lure her away? Should we make a preemptive counteroffer to her? How much should that be? These questions prompt agreement that Elaine does very good work, is a good colleague and a nice person, but most think that she is not much underpaid compared to the rest of us. Most think that I should only get her a big enough raise to make her feel appreciated, but not so much that she is significantly ahead of her peers. As professors are perhaps more subject to envy than most professionals, I get a lot of skeptical glances when I say I intend to seek the highest salary bump for her that I can negotiate with the deans.

Finally, the conversation turns to the election. Lorraine observes that the polls show Bush cutting into Gore’s lead. Mark says, Yeah, but Gore’s lead in the Electoral College still seems insurmountable. Bush may end up sweeping Texas and getting more popular votes nationally, but Gore should still prevail in the College.

I enter the conversation: So, what do you folks think of the Electoral College? With Bird and Jeff gone, the office staff has been putting calls through to me from the press and civic groups asking how this system works and whether it’s a good system. I can tell them how it works, but I haven’t given more than a few moments of study and reflection to the question of whether it’s time to junk it as an archaic relic of the past.

Chuck pipes up, It hasn’t mattered since 1888, which is the last time that the winner in the College, Benjamin Harrison, failed to have the most popular votes.

This prompts Misty to respond, Yes, but it matters even when there is no mismatch between electoral and popular votes. For example, I have no incentive to vote, because under the College’s winner-take-all system, Kansas is already safe for Bush. He’ll get all six electoral votes from Kansas whether or not I—or any of us—vote.

I continue, OK, but it’s not really Chuck’s, or Misty’s, or my opinion they want. What these callers really want to know is whether political science as a discipline has made a judgment about it. And a little time on the Internet and at the library has me thinking that political science has given almost no attention to the issue. A few political scientists have defended it, while a few others have criticized it. I imagine that their books are simply intended for high school debate teams. No one has assembled relevant research and theory from political science that tells us what our discipline has to offer on the topic. There seems to be no common disciplinary understanding about the Electoral College. Hell, despite being political scientists, we can’t even agree that the method used to fill the most powerful position in the country—in the world, for that matter—is an important enough topic to merit our time and energy.

That prompts Al to remark, There you go again, Schumaker, suggesting that political science is not really a scientific discipline because we have no consensus on what the important political questions are, how to study them, or even what we know. You ought to recognize by now that we can’t even agree on whether we ought to have a paradigm that directs and disciplines our teaching and research. Maybe some of us think we should have some sort of paradigm, some grand theory of politics that is to us what Darwin’s theory of evolution is to biology. But most political scientists have given up on that quest and simply think that each of us should be free from any disciplinary agenda and constraints and spend our time researching and teaching whatever and however we want.

We are now off the Electoral College topic and closer to what we really care about: our professional status, how others in academia think we are a hopeless cast of characters because we claim to be a science while we are really far from being so.

I take Al’s bait. "Well, maybe we’ll never have complete agreement on fundamental political topics, an overarching theory, criteria for what constitutes scientific research, and consensus on the contents of political truth, but can’t we at least be more like economics? Few doubt that economists are real social scientists, and they have at least two major paradigms. Most economists focus on aggregate wealth, things like the GNP. They revere Adam Smith’s The Wealth of Nations and emphasize the central role of the ‘hidden hand of free market competition’ for guidance on how to approach questions of economic growth and development, even while many in this tradition also respect John Maynard Keynes’s The General Theory of Employment, which shows that governmental initiatives can be essential supplements to free-market transactions. They see Keynes as an important revision and addition within Smith’s paradigm. But other economists focus on the distribution of income and wealth, and they revere Karl Marx’s Das Capital for its analysis of unequal distributions of material resources. They also admire the work of Simon Kuznets and other macro-economists who have developed better understandings of the distribution of wealth." (If this conversation had taken place after 2014, I would have stressed that most economists now appreciate Thomas Piketty’s Capital in the Twenty-First Century as providing the sort of revisions of and enhancements to the Marxist paradigm that are still possible in the social sciences.)

Al gets impatient and interjects, And your point, Schumaker?

So I wrap up my argument: If political science deals with power like economics deals with money, then maybe some of us could adopt a paradigm that addresses how power is and ought to be distributed, while others could adopt a paradigm that addresses how power should be used to achieve public institutions and policies that serve the common good and justice. Failing that, couldn’t we at least agree that we should conduct research and develop a theory that culminates in a disciplinary judgment about how to elect the leader of a democratic society?

Eyes roll. Time to return to Blake Hall and get back to work.

Back at the departmental office, I check the enrollment numbers: are we going to have enough students to justify my argument to the college office that we need a couple more faculty to meet student demand? I call the dean’s administrative assistant and ask for an appointment to discuss Elaine’s salary. I call the associate dean to remind her of our need for more office space to house our teaching assistants. I talk to the director of graduate studies about her plan to have the faculty be more involved in giving feedback to our M.A. and Ph.D. students so they will remain on track to finish their programs in a timely manner. As I move from one of these tasks to the other, I ask myself: What on earth possessed me to take on once again the thankless task of chairing an academic department, an organization where everyone thinks they are better than they are, where everyone feels aggrieved because of their low salaries and the inadequate resources available to us to do our jobs? It’s like herding stray cats. Faculty members want to be free to roam where they wish, without any collective direction or responsibilities.

But I know the answer. I recently went through a divorce, and my ex was the real moneymaker in the family. I have just married Lynn Burlingham, my college sweetheart and long-time pen pal, and have promised her that I can cover living expenses for us so that she can use her meager salary as a teacher in the public schools to take care of her kids. And I have one son who has just begun college and another who will be heading off to college soon. I need the extra bucks that go to departmental chairs. But I also need respite from my administrative duties.

I start thinking about the Electoral College. Though I know very little about it, I do know that it currently provides the rules of the game governing the outcomes of presidential elections. Whoever gets 270 votes from the electors in the College wins the presidency, whether or not they get the most popular votes. What if Mark’s suggestion is right, that Bush could end up with more popular votes but Gore could still win in the College? That scenario seems plausible, as Bush could ring up huge popular vote wins throughout much of the South while Gore pulls out narrower popular victories in swing states such as Michigan, Pennsylvania, Oregon, Wisconsin, and Florida, giving him the Electoral College victory.

As I ruminate on this, Phara, my graduate teaching assistant, comes into my office to discuss students who are either thriving or struggling in our introductory