LaRue writes commentary at Structure Matters. He is a former deputy director of the Eisenhower Institute, a nonpartisan think tank, and of the American Society of International Law.
As impossible as changing the Constitution may seem today, amendments are in our future. It may be years or decades away, but it will happen. And election reform could be the topic.
Historically, amendments have been added in clusters every half century. Ten of the 15 post-Bill-of-Rights amendments still in effect were adopted in relatively brief windows right after the Civil War (three in 1865-70), during the Progressive era (three more in 1913-20) and in the Civil Rights era (another four in 1961-71).
Had this cycle held, we would have expected several amendments in the 2010s. But we had none and none are on the horizon — with the exception of the still-unlikely Equal Rights Amendment. Why? Hyper-partisanship and polarization may top the list. Shortened political attention spans could be a factor. Maybe we simply have lacked a compelling enough need for a change to command the required two-thirds majorities in Congress and then ratification by 38 states.
Or perhaps the cycle broke because the dominant focus for constitutional change is shifting away from individual rights. Two-thirds of all the amendments so far have advanced individual liberty, from freedom of speech and religion in the 18th century to voting rights in the 20th century. Other than the faint hope that the ERA might be resurrected, no rights-based amendment has garnered widespread consideration in this century.
Could long-unattended, election-related issues be emerging instead as subjects for consideration? Our government may rest on principles and rights, which have deserved defense or expansion. But the Constitution is mostly about the structure of the government built on top of those rights, much of it electoral.
This structure has only been repaired twice, and only following a breakdown of the system. The 12th Amendment in 1804 enabled members of the Electoral College to cast separate votes for president and vice president, thus consigning to history the fiasco of the tied 1800 election — and between running mates, no less. Then the 22nd Amendment in 1951 limited presidents to two terms after Franklin Roosevelt twice violated the two-term tradition. (The 17th Amendment is a notable hybrid. In 1913 it shifted the selection of senators from state legislatures to the public, so it was about both rights and structure.)
Will another breakdown bring about constitutional change? Quite possibly. If a presidential election is ever put in the hands of the House, because no candidate secures a majority 270 electoral votes, popular pressure may finally force replacement of the Electoral College. Or perhaps another misfire or two, when the popular and electoral vote winners differ as in 2000 and 2016, will be enough. (And we should be ready with an alternative, one that assures the popular majority prevails, since systemic breakdowns have led to repair in a matter of years, not the usual decades).
Voting rights are also percolating in the not-quite-bad-enough-to-fix-constitutionally-yet space. The focus of much attention now in state legislatures, the challenges nonetheless make plain the need for an amendment to affirm the right to vote — not merely prevent or penalize its denial.
Such an amendment could advance the obligation to vote, which constitutes part of the structure beneath our elected leaders, giving them their mandate of legitimacy. Accordingly, it would be similar to the 17th Amendment — about structure as well as individual rights.
Other election-related topics, such as redistricting or campaign finance, may appear as candidates for an amendment, as former Supreme Court Justice John Paul Stevens advocated in 2014. But both may be addressed by the states — as is occurring for redistricting — or through federal statute, as proposed in the For the People Act, now pending in the Senate after passage by the House. But not all such statutory solutions prove to be adequate.
Looking ahead toward possible national constitutional change is a fraught exercise in the current political climate. Even reasonable election reform ideas can't avoid the "pipe dream" label. But in less than two decades, or four presidential elections from now, the circumstances may be very different. Republicans may be against the Electoral College if Texas has finally turned blue — or if they realize they'd rather get something for all the votes they earn in California, which at 6 million were more than those cast for former President Donald Trump in carrying Texas last fall.
Many state responses to improve voting administration or to limit partisan gerrymandering may be working well in the 2030s, prompting demand for constitutional amendments that standardize, simplify and spread those benefits across the country. Or they could have failed, creating demand for a national solution.
Timing could be the key. If we have moved away from bursts of amendments to improve our rights every 50 years, when might we next see another? Has the underlying social pressure for such constitutional change dissipated or does it continue to build? Are structure-of-government amendments on any cycle at all, or do they only occur following a breakdown? Given how this topic lacks emotional or personal pull, are there dual-purpose changes that might be modeled after the 17th Amendment?
When the winner of the presidency in 2036 is inaugurated, it will be the 250th anniversary year of the signing of the Constitution. What if we were to commit to repairing the Constitution that year in order to celebrate it?
Sixteen years may seem a long way off. But it will pass quickly. The 250th anniversary of the launch of the world's first and still-lasting constitutional democracy may present the emotional tug we need to elevate election reform to the front of the constitutional line. Let's not waste it.
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Coloradans will finish voting next week on whether to support using the popular vote to elect the president. It's a close call, but let's hope they do.
The ballot initiative follows Colorado's decision last year to join 14 states and Washington, D.C., as a member of what's called the National Popular Vote Interstate Compact — pledging their Electoral College votes to the winner of the nationwide popular vote, but only once states with a combined 270 electoral votes (the majority guaranteeing election) have signed on. The current group commands 196 votes.
But shortly after Democratic Gov. Jared Polis signed the law, opponents launched a "veto referendum" campaign and gathered 100,000 more signatures than the 125,000 required to put the measure on this fall's ballot. Voters will now have the chance to affirm or reverse the state's decision. Nearly $6 million has already been spent on the campaign, with three of every four dollars spent by people wanting to remain in the compact.
(By the way, 22 states provide an avenue for the citizenry to repeal a state law. Colorado last saw its version used in 1932.)
Coloradans have good reasons to vote "Yes," which means sticking with the popular vote compact. Doing so would support the principle of every one person having one vote, which the Electoral College tramples. And it would encourage turnout, which the Electoral College disincentivizes in the solid majority of states that year after year remain reliably Republican red or Democatic blue. (Voter participation was 11 percent less in the "safe" states, on average, than in the battlegrounds of 2012, for example.)
If the compact takes over how presidential elections are decided, effectively neutering the Electoral College as we now know it, that would end the practice of candidates making all their campaign appearances in the relative handful of competitive states. And it would bring an end to so-called misfire elections, when the Electoral College winner prevails despite losing the popular vote.
Voting "Yes," however, would eventually prove to be only a symbolic decision — because the compact itself is fatally compromised.
The critical flaw is not about using the popular vote. It is not the deal's total lack of bipartisan support at the moment, Colorado being the only remotely purple place on a list that's otherwise all deep blue. And it is not the pact's potential unconstitutionality, because courts may decide it needs congressional approval, which it does not have, or is an improper diversion around the Constitution.
These concerns are irrelevant, as are the problems from sticking with winner-take-all, plurality outcomes.
What matters is that, if ever implemented, the compact would crumble at first use.
This design instability starts with the compact going into effect once states representing 270 electors sign on. Participating states may not leave the compact in the six months before each national election, but they can do so afterwards. If even just one or two states decides to leave after the first election under the compact, the total number of electors from participating states would likely fall below the magic number, thus killing the compact.
Would states drop out this way? Assuredly. Just consider Maryland, the first state to join the compact in 2007. If the reliably Democratic electorate ever witnesses its 10 electoral votes awarded to a Republican winner of the national vote — irrespective of whether the election is close — do you think Maryland voters or their representatives would allow that to happen again?
Or consider 2004, when Democratic Sen. John Kerry would have cinched an Electoral College majority had he overcome only a 120,000-vote gap in Ohio. He would still have lost the national popular vote by 3 million. Had the compact been in effect, how do you think voters in Ohio, or in blue California and New York, would have reacted if their electoral votes went to the re-election of President George W. Bush?
Yes, some would support political equality and defend reliance on the national popular will. But would there be enough of them, and would they be loud and strong enough to prevail?
Such scenarios could play out in any blue or red state where residents might conclude their votes were subverted. Contributing to this flaw is the simple truth that, by preserving the Electoral College and its structure, the compact signals to voters that their states still matter — the opposite of what the NPVIC advocates.
If the compact ever gets close to membership by states with more than 270 electors, this implementation problem will get heightened scrutiny. No new states would sign on. Existing participants would drop out. In other words, the NPVIC is destined to die before it ever has a chance to live.
I would still vote "Yes" on Proposition 113 if I lived in Colorado. The compact's sustained civic education and engagement value is real and merits appreciation if not support.
Ultimately, however, a constitutional problem requires a constitutional solution. That means an amendment, the daunting path the NPVIC explicitly avoids. At some point, pursuing the compact became (or will become) a diversion from the only course leading to the desired destination.
A transition to a goal of eliminating rather than modifying the Electoral College is needed. That could be expedited by more misfire elections, or dramatically boosted by this nightmare occurring: No candidate secures 270 electoral votes and the election is thrown to the House, where each state's delegation would have one vote.
Amending the Constitution to change how we select the president remains unimaginable now. But political reality could be different in a decade — or in 2037, the Constitution's 250th anniversary. Truly celebrating that milestone will require removing the stain of the Electoral College.
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LaRue is a former deputy director of the Eisenhower Institute, a nonpartisan think tank at Gettysburg College, and of the American Society of International Law.
Back in April I argued in this space for remaking the presidency, with a term of six years followed by the chance for the incumbent to win a second term of just three years.
By better matching the electorate's behavior (by heightening the voters' power to render a verdict during their "six-year itch") and better reflecting the terms' relative value (to minimize the second term "curse"), this structure would produce numerous benefits — ranging from easing the relentless pressure of permanent campaign to incumbents being lame ducks for a third of their presidencies, but not half.
Despite such benefits, the proposal runs head-on into the presidency of Donald Trump. The prospect of two additional years of his service horrifies many people, including me.
It is useful to recall the two main scenarios for service in the White House: a president serving four years, or winning re-election and serving eight years. The second scenario now seems implausible, but not impossible, for the incumbent.
Under my proposal, we would have two more years of Trump — but it would be highly likely we would have no more than that, because he would be facing the even higher reelection hurdle at the six-year itch mark.
If he serves only one term, the idea of it lasting two more years seemingly becomes problematic. This is not the case, and there are four reasons why.
First, the reality that reelection after four years has become too easy — based on factors I've labeled the "four-year crutch" — would not really be countermanded by a Trump defeat. His presidency is so anomalous that his tenure has no direct relevance to questions about term lengths or any governing structure — save, of course, the Electoral College.
Second, any change in presidential term lengths would require a constitutional amendment and so would start many years, if not decades, in the future. This long time horizon is worth a reminder not because Trump will be long gone by then, not matter what, but because our nation's politics will have to change significantly before changes to term lengths will ever be seriously considered. Extensive civic education and other reforms to improve voting and electioneering would have to occur, producing a political environment more resistant to a narcissistic demagogue's appeal than in recent years.
Third, with the nation now confronting its glaring mistake of electing a huckster as president, it is doubtful we will soon repeat such a grievous error. Trump's authoritarian venality, corruption, incompetence and truthlessness will become clearer after November — whether he's a furious lame duck for 11 weeks or somehow re-elected and unfettered for four years. We also will learn a great deal about his presidency after he leaves office. When all the redactions are lifted and the details of Trump's finances are exposed, the picture of the Trump administration will likely be far darker than it is today.
Finally, even if a Trumpian sort of populist is elected in the future, impeachment and conviction remain a viable means for removing such a president — and this process would likely be more effective if attempted during a longer, six-year first term. Whether rushed or too exclusively partisan, Trump's impeachment last year came with no real prospect of conviction and removal. The Democratic House leadership felt pressure to act sufficiently in advance of the 2020 election, which foreclosed the option of gathering more evidence of his unsuitability for office. Such additional material may not have proved equivalent to Richard Nixon's Oval Office tapes, but its cumulative weight may have started cracking the support of Trump's Senate enablers.
These considerations all signal that the Trump presidency is mostly irrelevant to the idea of changing presidential term lengths to a six-year first term and a three-year second term. If anything, it may strengthen the case for addressing the underlying challenges that led to Trump's election in the first place — including structural ones, such as term lengths and the Electoral College.
Trump may be the civic wake-up call we end up having needed. That he has boosted civic education and engagement in America is noted by scholars and analysts such as Jeffrey Tulis, E.J. Dionne, Jr., Thomas Mann and Norman Ornstein. And we must acknowledge that the 2018 blue wave may have been but a ripple had Hillary Clinton been elected in 2016, as such midterms almost never favor the incumbent president's party.
The good news is that Trump will find himself — sadly, we are not there yet — at the bottom of the civic pit he has been digging deeper. There will only be one way out: Up, and without him. Competence in governance will again count for something. Civility in public affairs will count for more. Concern for others will return as the benchmark of public service. Compromise will regain at least some of its value.
Baseball fans know the game offers lessons as well as escape. "I will be told I am an idealist. I hope so," Commissioner Bart Giamatti said in announcing superstar Pete Rose's 1989 banishment for gambling on the sport. He said baseball was a "resilient institution," and that "no individual is superior to the game."
And like baseball after Rose was barred, governance after Trump's tenure will get better — even if it takes several seasons, or elections. Our ingenuity will get us out of tight spots, even those our Founders, our predecessors and our own peers created. And constitutional change — such as altering presidential term lengths, will not seem as far-fetched as it does at the moment.
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