Randall Shepard: Debate over Electoral College more nuanced than it seems

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ShepardJust as people in Indiana and elsewhere expressed sorrow over the passing of the remarkable public servant Birch Bayh, one of his few lost causes became a renewed subject of national debate—the Electoral College.

Sen. Bayh’s record on constitutional amendments was virtually without parallel. He led the passage of one provision authorizing 18-year-olds to vote and another governing presidential succession when our country’s leader dies or is incapacitated.

Yet his proposal to move the selection of presidents to a nationwide popular vote failed in the Senate.

We might have expected renewed debate on this subject in light of 2016, when former Secretary of State Hillary Clinton won the popular vote but lost the electoral vote. While only the fourth time in two centuries, two occurred recently: Bush/Gore in 2000 and Trump/Clinton in 2016.

Still, it’s been surprising that the energetic launch of the 2020 Democratic nomination has featured the Electoral College alongside issues like medical care and immigration. Our own South Bend Mayor Pete Buttigieg has urged us to move to a popular vote system, saying the current system has “made our society less and less democratic.”

There are good and bad ways to move in that direction.

Some of the obstacles that led to defeat for Bayh’s proposal in 1970 are still real. First, there are the small states whose electoral votes (the total number of representatives and senators) give them a larger role in the outcome than they would have in a single national plebiscite. Maine with four electoral votes and Nebraska with five would think twice before reducing their own influence by ratifying a popular-vote amendment.

Second, and less intuitive, various members of the body politic in larger states might take pause. When Bayh thought he had enough votes, his expected ally, famed civil rights leader and then National Urban League President Vernon Jordan, came out in opposition. Jordan and other influential leaders of the African-American community worried that the ability of minority voters to swing large states would be diminished.

By numbers alone, Indiana, with its 11 electoral votes, wouldn’t stand to gain or lose much. Our share of the national popular vote and our share of the Electoral College vote are nearly the same, at just over 2%.

That doesn’t mean we wouldn’t be affected. Most people in Indiana know what it means when we get called “flyover country,” and don’t take kindly to the epithet. In a national popular-vote election, we can well imagine multiple rallies in Los Angeles, but few in Fort Wayne.

Of course, Indiana’s self-interest isn’t the only consideration. If a constitutional change meant a more cohesive nation, we might do well to make the jump.

An alternative path to a popular-vote system isn’t nearly as attractive.

The Colorado governor recently signed a bill obligating that state to cast its Electoral College votes for the candidate who won the national popular vote. The National Popular Vote Interstate Compact takes effect when enough states having an Electoral College majority sign on. Colorado is the 13th state to join; 98 more electoral votes are needed before it becomes law.

If in place already, this would mean that, in 2008, California would have cast its electoral votes for former Texas Gov. George W. Bush, even though a great majority of people voted for Massachusetts Sen. John Kerry. In Indiana, in 2016, electors would have been required to vote for Clinton, who lost the popular vote here by 500,000. Such a law would have obligated Indiana’s electors to vote against our native son and Union general in the Civil War, Benjamin Harrison, in 1888.

Such outcomes would not build American enthusiasm for national elections. If we are to move at all, we should take the regular, constitutional amendment path.•

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Shepard, formerly Indiana chief justice, now serves as senior judge and teaches law. Send comments to ibjedit@ibj.com.

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