The 538 presidential electors from all 50 states and Washington, D.C. just met to cast their ballots for president and vice president, and — no surprise — Donald Trump and JD Vance beat Kamala Harris and Tim Walz, 312-226.
These electors were voted into office on Nov. 5, and were required to gather in their respective home states on the first Tuesday after the second Wednesday in December. According to our Founders, this is our nation’s real Election Day — even though, of course, we have known who won for weeks.
The process is so arcane that New York’s governor, Kathy Hochul, even as she cast her own Electoral College vote, called for scrapping the whole system, and having Americans directly vote for our national leaders.
It hasn’t been reported how Donald Trump celebrated his official election this week, but I have an idea how he should mark the occasion. He should take a leaf out of President Richard Nixon’s playbook and do the unexpected. Let me explain.
In 1971, way before he was mired in the Watergate corruption that brought him down, Nixon, a life-long anti-Communist, declared that he would visit the People’s Republic of China. No announcement could have been more dramatic and counter-intuitive. After all, he built his career — as a member of Congress, United States senator, vice president and president — denouncing the “Communist menace.” For him to decide to break bread with Chinese Communists was, to say the least, a turnabout that startled Americans.
So, now, after years of deriding the United States Constitution, the judicial process, and the rule of law in general, Trump could offer up his own 180-turnabout moment by embracing one of the most important democratic reforms in American history — a constitutional amendment to abolish the Electoral College.
One would expect a liberal member of Congress to urge this change — and, in fact, three U.S. Democratic senators last week introduced such an amendment — but it would be real news if Trump came out for the direct election of the president and vice president as part of his program to make America great.
Call me crazy, but if Nixon can go to China, Trump can send the Electoral College into the dustbin of history where it belongs.
In fact, if Trump were to do this, it would not be a pure Nixonian about-face because he is already on record supporting this reform. In 2012, he said the Electoral College was “a total sham and a travesty.” And although he benefited from it in 2016, then-President Trump reiterated his preference for a popular election on “Fox & Friends” two years later, in 2018. But we haven’t heard from him on the subject since.
Now might be the perfect time. After all, he has comfortably won both the popular vote and the Electoral College vote — and, not unimportantly, cannot run for reelection. So he should support this fix and provide the leadership to make it happen.
According to the Pew Research Center, almost two-thirds of the country favors the direct election of president, so Trump has the opportunity to get in front of the parade. His embrace of this democratic reform might be stupefying to many of us, but, of course, Trump would love the delicious irony. More important is the substantive result: our presidential elections would finally reflect the principle of one person, one vote. A voter in California would have the same impact as a voter in Wyoming.
Is it possible that Trump has the guts to put his money where his mouth is on this issue?
Speaking of Nixon, he endorsed such a change more than 50 years ago, and it almost got passed. Literally hundreds of previous attempts failed, but it was on the brink of success in 1969. A constitutional amendment was passed by more than two-thirds of the House of Representatives, and the vote in the United States Senate, which also needed two-thirds, was close at hand.
Had the Senate acted, approval of three-quarters of the states would have been required, and the chances looked very promising. Unfortunately, Southern Democrats lobbied hard in opposition, and, in a head-turning moment, certain civil rights leaders came out against it, worrying that the power of their communities would be undermined. A filibuster ensued and the effort failed.
Fast forward to the present. Democrats like me have generally been in favor of the direct election of the president, and Republicans generally have opposed it. The GOP has believed its path to the White House was easier through the Electoral College and thought that winning the popular vote was out of reach.
But, as I tell my election law students all the time: today’s blue state is tomorrow’s red state, and vice-versa; so think of the long-run and not whose ox is currently being gored. After 2024, it’s clear that both Republicans and Democrats can and do win the popular vote.
Of course, it is not as if the Electoral College was anything other than a last-ditch contrivance to begin with. A long, hot summer in 1787 yielded great frustration and fatigue, as delegates to the Constitutional Convention contemplated a variety of ways to elect the new president.
Compromise being the coin of the realm in Philadelphia — not to mention a strong desire to get out of town — the Founders, in the very last days of their deliberations, settled upon a scheme where intermediaries chosen by the states — the presidential electors — would make the ultimate choice.
In the Federalist Papers, Alexander Hamilton conceded the Electoral College was “not perfect,” but, nevertheless, “excellent.” A “transient” group of electors, possessing the necessary “information and discernment” in choosing the chief executive, was an idea that had “escaped without severe censure.”
In other words, they thought it was the least worst alternative.
To be sure, this system has worked relatively smoothly in 60 presidential elections, putting aside the stolen election of 1876, the Supreme Court’s intervention in 2000, and the attempted upending of succession in 2020. Even in the four elections where the winner of the Electoral College vote did not win the national popular vote (including Trump in 2016), the loser, albeit grudgingly, accepted the outcome. After all, those were the rules.
But the Electoral College system understandably continues to gnaw at many Americans. It seems so out-of-date and undemocratic. As the one American election in which the winner of the most votes may be a loser, it is, to say the least, inconsistent with every other principle and tradition of our country’s politics.
It is welcome that some Democratic U.S. senators have revived the fight to amend the Constitution, but, realistically speaking, without bipartisan support, their efforts will probably go nowhere. President Trump can show he still believes what he said a dozen years ago, that the Electoral College should be replaced by the American way of voting — whoever gets the most votes, wins.
Given that he has now won the presidency both ways, his support for its abolition could carry enormous weight and garner the bipartisan backing that is required for a constitutional amendment.
I know it may be hard to believe that Trump would do this, but if Nixon can raise a glass to Premier Zhou Enlai in Beijing, then Trump can help democratize our elections.
Goldfeder, senior counsel at Cozen O’Connor, is director of the Fordham Law School’s Voting Rights and Democracy Project and serves on the American Bar Association’s Task Force for American Democracy.
