In a rare August election on Tuesday, Ohio voters decisively rejected requiring popular supermajorities for referendums on constitutional questions.
This Republican proposal was widely, and correctly, interpreted as an attempt to fend off an abortion rights referendum in 2024. These end-arounds rarely work; voters see through such transparent manipulation.
Yet there’s another story here, one Maine legislators, and Democrats in particular, need to heed. Majority rule is the basic principle of our representative democracy and should be applied at all levels.
Exceptions – such as the federal Constitution’s provisions for the executive veto, conviction following impeachment, and ratification of treaties – are narrowly tailored and don’t apply to elections.
But the Constitution contains a huge flaw: the moribund, undemocratic, and utterly odd way we elect presidents, through an “Electoral College” that doesn’t exist.
The document itself mentions only “electors,” and they don’t even meet in Washington, but cast ballots in respective state capitals under instructions specified in state law.
The sheer weirdness of this rite is unfortunately lost on many voters (and legislators) who seem to believe that because “we’ve always done it this way” it’s somehow OK.
This view ignores obvious facts.
In the second contested presidential election, in 1800, the count ended in a tie because parties began fielding tickets, with Thomas Jefferson’s election put into doubt because his running mate, Aaron Burr, sought to convince Congress to seat him instead.
Jefferson represented the Republicans (now Democrats), while President John Adams, who lost his reelection bid, led the already declining Federalists.
The 12th Amendment was then rushed through to create separate ballots for president and vice president – just the beginning of a dubious history.
In 1824, Andrew Jackson was the popular vote winner but, with four “Republican” candidates on the ballot after the Federalists’ demise, he lacked an electoral vote majority.
For the first and so far only time, the election went to the House of Representatives, where each state, regardless of population, gets one vote. The House eventually installed John Quincy Adams, allegedly through a “corrupt bargain” with Henry Clay, his future secretary of State.
Thus, Jackson became the only candidate, along with another Democrat, Grover Cleveland, to win the popular vote three consecutive times – until Franklin Roosevelt did it four times.
That produced the Republican-inspired 22nd Amendment for a lifetime two-term limit, another anti-majoritarian provision but at least one with constitutional sanction.
And let’s not forget 1876, when Democrat Samuel Tilden won the popular vote but electoral votes in four recently “reconstructed” Southern states were disputed. A Republican Supreme Court justice serving on a special commission cast deciding votes seating the Republican, Rutherford Hayes.
There the misadventures of the Electoral College seemingly ended. Then in 2000, with recounts still pending, the Supreme Court installed George W. Bush over the popular vote winner, Al Gore.
Sixteen years later, Donald Trump became president despite losing the popular vote by 3 million.
Why, virtually everyone outside our political system asks, does the United States persist with a method no other nation uses, and is employed in no other federal, state, county or municipal election here?
Would we accept counties electing the governor, or city wards choosing the mayor?
Americans regularly support a popular vote for president when asked, and until Trump, opinion was bipartisan.
There’s a simple, constitutional means to accomplish this, called the National Popular Vote Compact. It requires compact states to cast electoral votes not for their own state’s winner, but the national winner.
Both provisions – instructions by states to electors, and interstate compacts – are in the original Constitution.
Unfortunately, it now seems up to Democrats to create a democratic presidential election, and in each state that’s had Democratic majority legislatures and governors, the compact has been adopted.
Minnesota is the latest, and Michigan will likely follow suit. That would amount to 221 electoral votes pledged; when 270, a majority, are committed, the compact takes effect.
That leaves one state controlled by Democrats – Maine – yet to act.
The reasons are mystifying. The bill has been repeatedly introduced and came close to passage in 2019. Yet it never received a vote in the 2021-22 session, and has been carried over, yet again, to 2024.
The arguments against the compact are numerous, but ultimately amount to quibbling.
There’s nothing dangerous about letting Americans elect our president. We should insist that all votes count equally, ending our fixation on “swing states” and in Maine the idea that “small states” would lose out.
States shouldn’t elect the president; the voters should.
If you agree, contact your legislators on summer break and tell them to bring up LD 1578 and pass it next year.
Douglas Rooks has been a Maine editor, columnist and reporter since 1984. His new book, “Calm Command: U.S. Chief Justice Melville Fuller in His Times, 1888-1910,” will be published later this year. He welcomes comment at drooks@tds.net.
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