Some parts of the Constitution have stood the test of time, glorious testaments to the wisdom and foresight of the nation’s Founders.
Then there’s the Electoral College that’s used to pick presidents — an 11th-hour addition to the document that the framers themselves quickly came to view as a lemon, and which has only become worse with the passing centuries.
On Monday, the Supreme Court handed down a decision that removes one threat posed by the college — but also highlights the institution’s absurdity and should be a step toward scrapping it entirely.
Instead, the United States should adopt a system whereby the presidential candidate supported by the most citizens on Election Day is elected. Often referred to as “democracy,” such a system is used to select the leaders of many advanced countries and the governors of every US state.
The original idea of the college was that, every four years, each state (but not the District of Columbia) would appoint electors — “men most capable of analyzing the qualities” of the candidates, as Alexander Hamilton put it — who would then, in turn, use that superior judgment to pick the president, with the second-place finisher named vice president.
As Supreme Court Justice Elena Kagan described in her opinion on Monday, nothing like that happened.
Instead, almost from the very beginning, states picked their electors on the understanding they would vote for the candidate preferred by that state. Although Hamilton had said the electors would meet “under circumstances favorable to deliberation,” the electors didn’t deliberate, instead just voting as they were told.
Initially, it was state legislatures doing the telling. But in the 19th century, states passed that right on to the voters. And that’s the system we have today: Voters go to the polls and vote for Hillary Clinton or Donald Trump. The names of the electors don’t appear anywhere on the ballot. (Also, the second-place finisher is no longer named vice president, thanks to the 12th Amendment.)
Previous court decisions allowed states to pass laws forcing electors to pledge to support a particular candidate. Monday’s ruling took the next logical step, saying that states could remove or punish electors who break that pledge or fail to cast votes as instructed by the electorate. The case arose when three electors in Washington state, who were elected in 2016 to vote for Hillary Clinton, tried to cast votes for Colin Powell instead.
The decision essentially ends the fiction that the college has any deliberative function whatsoever, or is meant to be some kind of check on the electorate. The outcome should eliminate the threat of “faithless electors” going rogue and thwarting the will of their state’s voters. It also removes the (remote) possibility of an election outcome being tipped by an elector who is bribed or bullied into changing his or her vote.
All that’s left of the original vision of the Electoral College, then, is the way the Founders apportioned the electors. Each state gets electors equal to its combined number of senators and representatives (the District of Columbia gets three, thanks to a constitutional amendment ratified in 1961). In practice, that means that smaller states get more sway in the Electoral College; that’s how it’s relatively easy for a candidate like George W. Bush or Donald Trump to win the election despite receiving fewer votes from citizens.
In an alternate universe, in which the electoral college had evolved to be the repository of wisdom that Hamilton mentioned, that way of apportioning votes might make sense to some people, to ensure that no state’s concerns would be drowned out in those discussions. It would still, however, be a way of distancing elections from the will of citizens.
Given that the electoral college has no deliberative function — which two centuries of practice suggest, and Monday’s decision affirms — that way of apportioning votes accomplishes absolutely nothing but to give voters in small states more power.
The clearest way to change that would be via a constitutional amendment abolishing the Electoral College and replacing it with a national vote. Two workarounds to that heavy lift also merit consideration. The first would be to drastically increase the size of the House of Representatives so that each state’s Electoral College delegation is more closely linked to its population. The other workaround would be for states to pledge their electors to the winner of the national popular vote. More than a dozen, including Massachusetts, have already promised to do so when enough other states agree. That change has the added benefit of eliminating the winner-take-all nature of a state-by-state tally and would force candidates to run national elections, seeking votes everywhere instead of focusing on just a handful of swing states.
Right now, changing to a more majoritarian system for picking presidents would seem to help the Democrats. But sooner or later, the partisan shoe will be on the other foot. Republicans might not see much advantage to changing the system now, but Monday’s decision at least strips away any illusions about the status quo that inaction shields. The Electoral College isn’t a deliberative body. It’s a math equation, and its sole remaining impact on American politics is to magnify the political power of some Americans and reduce that of others. That’s not democracy.
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