On Thursday, political commentator and author David Frum tweeted the following:
Any decision-system that produces the result that Donald Trump (!!) loses the vote count but becomes president anyway is obviously defective and in need of change.
On Saturday, he replied to a tweet from The Wall Street Journal that linked to an opinion piece from the editorial board titled "Scrapping the system the U.S. has used to select Presidents since its founding will likely soon be the Democrats' default position."
In the piece, the WSJ editorial board writes about two primary necessities served by the Electoral College:
First, they note that "the founders designed the Electoral College to help ensure that states with diverse preferences could cohere under a single federal government."
Anyone who thinks this concern is irrelevant today hasn’t been paying attention to the current polarization in American politics. The Electoral College helps check polarization by forcing presidential candidates to campaign in competitive states across the country, instead of spending all their time trying to motivate turnout in populous partisan strongholds.
Second, they write that the Electoral College stabilizes the voting process "by delegating vote-counting to the states and thus delivering with rare exceptions a faster result." They add that a "nationwide recount" could be catastrophic.
In response to this piece, Frum tweeted:
The 12th, 14th, 15th, 19th, 22nd, 23d, and 26th amendments to the Constitution each previously altered the system for selecting presidents.
The 12th Amendment changed the way electors vote on presidents and their vice presidents.
The 14th Amendment states that "all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States," and that all Americans must be given "equal protection of the laws."
The 15th Amendment was meant to guard former slaves from being denied voting rights by federal or state governments, stating that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."
The 19th Amendment states that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."
The 22nd Amendment sets term limits on the president.
The 23rd Amendment gave residents of Washington D.C. the right to vote for Electoral College representatives.
The 26th Amendment lowered the voting age from 21 years old to 18 years old.
In one way or another, all of these amendments changed the way in which the voting process worked. However, none of these amendments changed the bedrock set of principles by which the United States elects its president.
The Electoral College was designed by the Founding Fathers as a carefully balanced compromise — one that would ensure a right of self-governance but also avoid a tyranny of the majority. Many of the Founders expressed great disdain for a "pure" democracy, which "soon wastes, exhausts, and murders itself," according to John Adams.
It’s unclear if Frum’s tweet is meant to act as an endorsement of the popular vote or as support for changing the Electoral College. Nonetheless, it comes across as rather disingenuous, as it appears to imply that because a litany of changes have been made to the way in which we vote, an elimination or massive structural alteration of the Electoral College would be just another in a long line of such changes.
However, as noted above, the changes, while indeed incredible, did not alter the great compromise. A move to a popular vote, or too great a change to the Electoral College, could crack the foundation upon which our republic is built.
For additional analysis of Frum’s tweet, The Daily Wire reached out to Tara Ross, lawyer and author of three books on the Electoral College, including her most recent, "The Indispensable Electoral College: How the Founders’ Plan Saves Our Country from Mob Rule."
I will respectfully disagree with the tweet. The system we use for electing Presidents has remained essentially unaltered since the founding. The 12th Amendment made a few minor changes to separate the voting for President and Vice President, but its provisions are otherwise virtually identical to those in the original Article II provision. The federalist, state-by-state election system created at the Constitutional Convention was left entirely intact. No amendment since has changed that process. The other amendments cited all had other purposes:
(1) Several amendments expanded the franchise: States can’t deny the right to vote based on race, gender, or age (18 and above). Similarly, the 23rd Amendment ensured that D.C. is now represented in the Electoral College. Expanding the franchise does not alter the federalist, state-by-state election process created by Article II and affirmed by the Twelfth Amendment. It’s worth remembering that no state is required to let its citizens vote in the first place. A state legislature could simply appoint electors on its own, without reference to any popular vote. This was true in 1787, and it is true in 2019. The Supreme Court affirmed this situation in Bush v. Gore: "The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college."
(2) The 22nd Amendment cited in the tweet did not alter the presidential election process. It did add to the eligibility provisions listed in Article II, Section 1, clause 5 of the Constitution.
For more information about the Electoral College versus the popular vote, check out this video: