Drafting a new constitution for the United States is a fantastic, but humbling, experience. Most constitutional scholars have thought of clever amendments to the Constitution that would fix some problems the Framers and ratifiers left unresolved or address problems that have arisen in the two centuries since the Constitution was drafted. However, an amendment mindset is insufficient when drafting a new constitution. Redrafting requires rethinking the Constitution and all the unstated assumptions underlying it. Redesigning the Constitution also requires deciding what characterizes the United States—a contested issue—so appropriate rules can be crafted to govern the country today and transform it into all it can be. Achieving the redesign’s goals depends on correctly rethinking numerous smaller decisions.
This brief piece considers one such decision: how to elect the President. Any change to the presidential election system must not create new problems. A reasonable, user-friendly amendment process can provide a pathway for later change, but preventing the need for such change is a better goal.
The draft constitution presented here abandons the Electoral College in favor of a national popular election using ranked-choice voting (RCV)—a seemingly simple and obvious solution, but one with its own challenges and questions.
Abandoning the Electoral College may seem an easy decision. The Electoral College has fallen out of favor in part because it does not comport with the one person, one vote (OPOV) doctrine, which focuses on fair and equal representation and has governed American democracy since the 1960s. However, electing the President through the state-based Electoral College is not nonsensical. Congressional representation is allocated by state, and members of Congress are elected through states. The Electoral College allocates as much power to a state as the state would have if the House of Representatives and the Senate met in a joint session to choose the President. The current Constitution assumes the President works with Congress and executes Congress’ legislation. Choosing the President through a process that mirrors a congressional election of the President is not irrational.
Though electing the President through a national popular vote is sensible, exiting a state-based presidential election system can have unintended effects. Each state has its own election rules—which may cover felon disfranchisement, voter registration, and other issues—that create a bespoke electorate. A national popular election demands a national electorate for that election based on a uniform set of election rules. That need triggered the establishment of a National Election Commission (NEC) in our draft constitution to administer all elections for federal office. States lose the ability to define their electorates for federal offices but would retain some autonomy to define their electorate for state elections. Unless states harmonize their state election electorates with the federal election electorate, confusion may ensue.
Creating a national election also requires rethinking the breadth of the electorate. In the current state-based presidential election system, U.S. citizens living in the states and the District of Columbia constitute the potential electorate. A national election is an election of the American people, or at least American citizens living in the United States. Consequently, the draft constitution extends the right to vote in federal elections to American citizens at least 18 years of age living in the United States and its territories, such as Puerto Rico and Guam. The only Americans of sufficient age who are not affirmatively provided the right to vote in presidential elections are American citizens who do
not reside on United States territory. (Our constitution does not affirmatively bar those citizens from voting. It is silent regarding whether they can vote and provides no clear mechanism for them to vote. The silence arguably suggests Congress could give those Americans the right to vote in the presidential election by statute.) The draft constitution also provides no right to vote in federal elections to non-citizens living in the United States or on American territory. Who should be allowed to vote in presidential elections remains a work in progress.
The draft constitution requires ranked-choice voting in the presidential election, replacing the plurality/winner-take-all system functionally embedded in the Electoral College system through state laws. RCV allows a voter’s second choice or third choice, etc., to be used to help elect the President when no candidate has received a majority vote. That should increase voter turnout. Some who may decline to vote when their first-choice candidate has virtually no chance to win may vote if they can vote for their first choice and still affect the election with their second or third choice. RCV also encourages a more civil tone in presidential elections because candidates will vie to be the second choice of rivals’ supporters. The number of presidential candidates may blossom as politicians and nonpoliticians convince themselves that they could attract the second and third choice votes of other candidates. In addition, the pressure to drive candidates out of the electoral process may decline because no spoilers exist in an RCV system. The problems that may accompany the introduction of RCV into presidential politics counseled for the establishment of the NEC to develop a framework of rules for an orderly presidential election.
The last issue—how to elect a Vice President—may seem an afterthought; it is not. The current Constitution calls for the separate election of the President and Vice President through the Electoral College. Functionally, the presidential and vice-presidential candidates are yoked when the President chooses a running mate. The draft constitution formally creates a presidential/vice-presidential ticket by electing the ticket, though through somewhat ambiguous language. The formal combination matters because a Vice President may be elected in myriad other ways. Under the 1787 Constitution, the Vice President is whomever finishes second in the presidential election. Alternatively, the Vice President could be elected, like many lieutenant governors are, in an election contemporaneous with but separate from the presidential election.
Whether the President should choose the Vice President by selecting a running mate or whether the people should choose the Vice President in a separate election depends on the Vice President’s role in government. If the Vice President is the President’s second-in-command and governing partner, the President should choose the Vice President. If the Vice President is the President-in-waiting, there may be a role for the people to play in electing the Vice President independently. The draft constitution arguably resolves that issue by deeming the Vice President to be a member of the executive branch.
Constitutional redrafting involves rethinking dozens of simple issues, such as how to elect the President and Vice President. The process is not for the faint of heart, but what a glorious process it is. I am thankful for the opportunity to have been part of this discussion.