Sheryl Axelrod joined The American Law Journal as a guest on our program "The Constitution & Rule of Law in the Era of Trump." Here are her additional comments on the Electoral College:
At the end of the program, Judge Cahn (Ret.) mentioned that Mark Aronchick [a fellow panelist] and I “don’t like” the Electoral College. While it’s true that I don’t like it, the Electoral College should not even be used anymore. It has long outlived its purpose.
The Electoral College is a vestige of slavery, designed at a time when neither African Americans nor women could vote, to allow white, slave owning men to get credits, in the form of extra votes, for the male slaves they owned. It was inconceivable to most people at the time that women would one day vote, too, let alone that anyone should get credit for the votes that at that time, women could not cast.
During the 1787 United States Constitutional Convention, the southern and northern states reached the three-fifths compromise for deciding upon the presidency. The purpose of the Electoral College system, and the three-fifths compromise used to effectuate it, was to permit states with slaves to get three credits for every five male slaves they held. That is also “the two-fifths discount” referred to below – that for every five slaves, the state got three votes rather than five.
Quoting from the article, “The Troubling Reason the Electoral College Exists” by Akhil Reed Amar with my text added in brackets:
“[I]n a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College — a prototype of which Madison proposed [at the Philadelphia Convention] — instead let each southern state count its [male] slaves, albeit with a two-fifths discount, in computing its share of the overall count.
Virginia emerged as the big winner — the California of the Founding era — with 12 out of a total of 91 electoral votes allocated by the Philadelphia Constitution, more than a quarter of the 46 needed to win an election in the first round. After the 1800 census, [our state,] Wilson’s free state of Pennsylvania had 10% more free [male] persons than Virginia, but got 20% fewer electoral votes. Perversely, the more [male] slaves Virginia (or any other slave state) bought or bred, the more electoral votes it would receive. Were a slave state to free any blacks [men] who then moved North, the state could actually lose electoral votes. If the system’s pro-slavery tilt was not overwhelmingly obvious when the Constitution was ratified, it quickly became so. For 32 of the Constitution’s first 36 years, a white slaveholding Virginian occupied the presidency.”
The current Commander-in-Chief lost the popular vote by three million votes, and never should have been sworn-in as President, for two reasons. First, he obtained the presidency illegitimately, through a treasonous conspiracy with Russia that included hacking his political adversary’s email server. If he and Hillary were Olympians and he won by cheating, we would strip him of his medal. We should certainly not tolerate cheating in our presidential elections. His administration should be stripped of their positions. Hillary should be peacefully transitioned to the presidency, along with her administration (with her nominees to be voted on thereafter).
Second, while popular thinking has it that the Electoral College system cannot be changed, especially with a GOP-controlled Congress, I would submit it is not a matter that requires Congressional action. We do not need a constitutional amendment. The purpose of the Electoral College system has long since passed. Voters could mount a challenge to it before the Supreme Court arguing that it should be interpreted by the Supreme Court to no longer apply to our election process.
This may be a solution and we (the voters) just started getting harmed by it because he just took office so it might be viable. I would think it would require finding voters from California, NY, and other states in which massive amounts of voters had their votes essentially nullified by the Electoral College system, to swear on affidavits that they voted for Hillary.
I would hope that whichever law firm or other entity chooses to mount this challenge, would consider also challenging the legitimacy of his presidency, and entire administration, based on the fact it was obtained through a treasonous conspiracy with Russia that included hacking his political adversary’s email server. The trickier issue with that argument is proving that the conspiracy decided the election.
The Electoral College challenge is in that way a cleaner argument, because we know that if we eliminated the Electoral College, Hillary Clinton would have won by three million votes.