As the new session of Congress gets underway, members are submitting legislation to be considered over the next two years.
Memphis’ own Rep. Steve Cohen (TN-D) has introduced 16 measures to be considered, including a constitutional amendment to abolish the Electoral College and another to limit the pardoning power of the President.
The Electoral College amendment brought a swift condemnation from the Shelby County GOP, who used a Brietbart link to plead their case.
Are you paying attention? https://t.co/dGq7RIIEih
— RP of Shelby County (@GOPShelby) January 4, 2019
Cohen has sponsored this constitutional amendment several times. He proposed it in the 114th and 115th Congresses. It should come as no surprise that he’s putting it forward now, as a member of the majority.
So how does this amendment work and what are its chances?
We’ll take a look at that, but first its important to understand the genesis of the Electoral College.
How We Ended Up with the Electoral College
The Electoral College, the number of Senators each state receives, and the 3/5ths compromise are all part of the same effort by southern states during the 1787 Philadelphia Constitutional Convention.
These states had a problem: they were really rural. They didn’t have the population density of northern states. So the direct election of the President was a non-starter.
They also had another concern: slavery. In 1787, slaves didn’t count for the purposes of apportioning Congressional Districts. As a result, the South’s ability to have an impact on national politics would be greatly diminished.
Enter the 3/5ths compromise and the Electoral College.
As described here by Yale Law Professor Akhil Reed Amar, the compromise was proposed by James Madison to ensure the south wasn’t overrun by more populous northern states.
The effect was that Virginia had an out sized impact on national elections for decades. In fact, the 3/5ths compromise and the Electoral College together gave southern states the incentive to increase their slave population to increase their political power in the nation.
Seven of the first 12 Presidents hailed from Virginia, the most populace southern state. Of all pre-Civil War Presidents, nine of 16 came from southern states.
But what about the Senate? The Electoral College, the composition of the US Senate, and the 3/5ths compromise are all part of the same negotiation with Madison and southern states.
The Electoral College uses those two senators to get to a state’s total. So while the approval of a Constitutional Amendment to end the Electoral College effectively ends the second third of our constitutional vestiges of slavery, there would still be another third to go to achieve real proportional representation nationwide.
Electoral College Math
Since its inception, the Electoral College has favored smaller states over larger states. This holds true today.
Using 2016 census data, I calculated just how much more power states have their population. The results are startling.
20 US states, including Texas, California, and Tennessee have less electoral power per vote to decide the Presidency than the other 30.
The six smallest states have more power per vote: a 2:1 ratio or more. This gives just 1.4% of the population 3.5% of the power in deciding Presidential Elections.
15 states have a vote power ratio of greater than 1.25:1. This means 7.5% of the population has 12.6% of the Electoral College votes.
The largest US States suffer. 20 states have a power ratio less than 1:1. This means 75.6% of the US population only has 68.4% of the power to decide the Presidency.
This disparity is the rationale behind Cohen’s constitutional amendment.
By relying on the popular voter rather than the Electoral College, which is both outdated and one of our last Constitutional vestiges of slavery, the majority of voters are better served.
The Path to Amendment
As I mentioned at the beginning, this is, at least, the third time Rep. Cohen has filed a constitutional amendment to abolish the Electoral College. Certainly, he knows its a long shot.
But as the old saying goes, “If you don’t ask, you don’t get.”
The amendment would need 290 votes in the US House. Currently, Democrats occupy 235 seats. So 55 Republicans would have to join the effort.
That really doesn’t seem likely.
Then, 2/3 of the US Senate would have to agree. With only 47 Democrats in the Senate, its unlikely the Amendment would even come up for a vote.
And even after meeting those two, very high bars, the amendment would have to be ratified by 3/4 of the states. That’s 38 states for people who hate math.
15 states currently get a great deal more power from the electoral college than their population would provide. That alone is enough resistance to keep the amendment from being ratified. But there are another 15 states who also benefit some from the system. That brings the total to 30.
Some of those 30 states might choose to ratify. But there are plenty of states, like Texas and Florida, who currently lose electoral power but are unlikely to push it forward for purely partisan reasons.
Since 1980, smaller southern and western states with less than six Electoral College votes have generally favored Republicans. No Republican led state legislature is going to give away that advantage, no matter how badly it disadvantages voters in their state.
Constitutional amendments are hard to pass. This is done by design. The Constitution isn’t like standard US Code. Its the overall guidebook that points us in a general direction. The Code then refines that direction.
Even Cohen recognizes this, as noted in the text of his resolution:
Whereas Thomas Jefferson wrote, “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
This quote is important. The world has advanced a whole helluva lot since the 1787 ratification of the Constitution. But will smaller states move against their electoral interests for the overall common good of the country?
The GOP controls both houses in 30 states. Democrats control just 18. To get to 38 you would need the majority of GOP led legislatures to approve the amendment.
But lets say the amendment did make it past the US House and Senate. Per the time provisions of the amendment, it would have seven years to be approved by 38 states. That still leaves time for Democrats to gain power, and get it passed…even if that’s not very likely.
In the end, Cohen is right to bring this forward even if it doesn’t have much of a chance of moving. By doing so, he’s placing a marker on the right side of history. And if conditions on the ground change to make this more viable, he’ll be ready.