In Loving Memory of my Mother, Harriet Barfield Black, August 6, 1918-April 20, 2020

I am having COVID-19 fatigue. It’s appropriate that the first three letters and the last two letters of pandemic spell panic because it seems that every action and reaction to the virus is knee jerk. Our leaders, on virtually every level, medical experts, modelers, politicians, academics and pundits all give the impression that no one knows what they are doing. That is why I have decided on taking a leave of absence from the COVID-19 panic and opine on another subject entirely: the Electoral College.

There is a name for those who are saying that we should eliminate the Electoral College in favor of a national popular vote: losers. It is doubtful if those whiners have thought through their proposal. The beauty of the Electoral College is that in virtually all elections, we know very quickly who won. Of course, there was the Al Gore – George Bush election, with the decision coming down to hanging chads in Florida. But that was the exception.

Abolishing the Electoral College would result in not knowing who won in almost every election. Consider the following: how many messes are there annually in local and statewide elections? This would be magnified by 175,000 as the accuracy of every polling place could be challenged. Since states determine who, where and how their citizens vote, are state laws to be overturned with the Federal government setting the rules for national elections? Do we have voter IDs, voting by non-citizens, paper ballots, voting by mail, uniform voting machines, voting offsite, early voting, and/or electronic voting? Bet on a recount at every level for every election. It would be a chaotic mess.

Abolishing the Electoral College would also lead to more and more candidates appearing on the national ballot. Of course, the two established parties will try to prevent that from occurring, but I would wager that the limiting rules would probably lose in a court battle. As a result, expect strong regional candidates running in the national election guaranteeing that no one candidate receive a majority of the votes. The next question would be whether the winner must have a majority or a plurality. If it is a majority, then a runoff would be assured between the top two candidates. A plurality would result in a minority candidate – which is what the whiners say they want to avoid. So, let us assume that somehow, we settle all the disputes and have a national runoff between the two top vote getters. It doesn’t take much imagination to postulate total chaos regardless of who wins. It is likely that every election will be challenged in court resulting in judges making the final determination as to who won.

The “abolish the Electoral College gang” has another alternative: the National Popular Vote Interstate Compact. This is the totally bizarre idea that we keep the Electoral College but the state’s electoral votes go to whoever polls the most votes nationally. If I were a resident of a state that enacted this nonsense, I would campaign to oust everyone who voted for this bill. Needless to say, that every state that has approved this measure is a “blue” state with a Democratic legislature and a Democratic governor reacting to the elections of George Bush and Donald Trump. This will prove to be shortsighted when in future elections they may have to give their votes to a Republican who wins the majority of votes. Yet they could renege because electors are not bound to vote for any particular candidate. The Constitution does not bind an elector to anything or anyone. Thus far there have been 176 instances of “faithless” electors. In 1836, all Virginia electors refused to vote for the vice-presidential nominee, causing an electoral vote one short of majority, throwing the election into the US Senate.

Some states attempt to bind the electors, but the constitutionality of state binding laws has been challenged. The lower court rulings are mixed, and the Supreme Court has yet to make a ruling. Consider what happens if because of faithless electors and multiple national candidates, no one receives a majority of electoral votes. What happens next? The House of Representatives would vote for president while the US Senate would vote for the vice president. In this case, each state has only one vote regardless of the number of representatives and senators. Do you think the national vote crowd will be happy with North Dakota having the same vote as California? It is possible that each house will elect a candidate from different parties. It is also possible that the vote could end in a tie. If that happens in the House, then the winner for vice president-elect in the Senate would cast the deciding vote for president. Unintended consequences indeed. Best to stick with what has worked since the founding of the republic: the Electoral College.

Dr. Harold Black is professor emeritus at the University of Tennessee, Knoxville. This piece appeared in the USA TODAY NETWORK – TENNESSEE. Dr. Black can be reached hblack@utk.edu.