The Los Angeles Times has published an editorial arguing that the Electoral College shouldn’t be allowed to choose the next U.S. president, on the grounds that it is unconstitutional.
Needless to say, Kenneth Jost’s argument is a very bold one, since the Constitution explicitly creates the Electoral College and describes how it works; the system was even refined with the 12th Amendment. But Jost, an adjunct professor at Georgetown University Law Center, says that’s no barrier to having the Supreme Court abolish the Electoral College by fiat.
“The electoral college is enshrined in the Constitution, but that doesn’t necessarily make it constitutional,” Jost argues. Small states are too protective of the Electoral College to approve an amendment abolishing it, he says, so the only reasonable possibility is to have the Supreme Court intervene and declare it illegal.
“It’s up to the Supreme Court — and a properly framed lawsuit — to do away with a system that not only never functioned as the framers intended but blatantly violates the court’s ‘one person, one vote’ principle,” says Jost.
“Plaintiffs in a legal challenge could be voters in any of the most populous states. They could correctly argue that their votes are being systematically undervalued in presidential elections,” he continues, glossing over that the Constitution clearly designed the Electoral College to mitigate the influence of large states.
The Electoral College’s structure, Jost argues, is invalid because it was initially designed in part to protect slaveholding states where relatively few people could vote. He then argues that the plain text of the Constitution should be ignored in favor of the Supreme Court’s 1964 ruling in Reynolds v. Sims, which held that state legislative elections must follow a “one person, one vote” principle.
“With an appropriate challenge in the high court, that precedent ought to topple the electoral college,” he says. He then ends his argument by quoting Anthony Kennedy to argue that the Constitution should be ignored so that “persons in every generation can invoke its principles in their own search for greater freedom.”