The coup attempt that Donald Trump facilitated on January 6, 2021, was rooted in two threats to the fair functioning of democracy in the United States: Trump’s refusal to accept his defeat at the hands of the American electorate, and the arcane mechanisms of the Electoral College that provide sore losers with multiple avenues for contesting election results. The Select Committee to Investigate the January 6th Attack on the United States Capitol addressed the first threat when it referred charges against Trump to the US Department of Justice. But the committee’s refusal to reckon with the second threat—that of the Electoral College—was a serious misstep in its quest to assure that the scenario that played out on January 6 “can never happen again.”
In its final hearing on December 19, the committee focused on the actions of a dishonest individual, Trump, and his malignant coconspirators. That was understandable, as Trump’s ongoing refusal to accept the results of the 2020 election demands accountability. But a narrow accountability that is obsessed with a powerful man, rather than with the systemic flaws that permitted him and his allies to steer the country off the rails, misses an opportunity to get the Congress and the country engaged with the work of eliminating future threats to democracy.
The committee’s 845-page final report, which was released a few days after the last hearing, featured a handful of policy recommendations—including calls for strengthening legislative tools for barring insurrectionists from holding office and for reform of the fundamentally flawed Electoral Count Act of 1887. But, as a key committee member, Maryland Democrat Jamie Raskin, has said, tinkering with the Electoral Count Act, while “necessary,” is “not remotely sufficient.”
Raskin explained Sunday on CBS’s Face the Nation, “There are so many curving by-ways and nooks and crannies in the Electoral College that there are opportunities for a lot of strategic mischief…. The Electoral College doesn’t fit [with the aspirations of American democracy] anymore.”
Of course, the January 6 committee needed to outline its referrals for criminal charges against Trump. But it also needed to call for Congress and the states to begin the process of amending the US Constitution to do away with the Electoral College and ensure that future elections are decided by the popular will of the people.
Like the prosecution of a former president, seeking to change the process by which presidents are chosen is a daunting task. Yet it has to be discussed, now that we know that conflicts over Electoral College results have led to incitement toward violence—and could do so again.
The January 6 assault on the Capitol sought to disrupt Congress at the precise point when it was charged with certifying the Electoral College results from the 2020 presidential election. Trump’s lawless actions following the election on November 3, 2020, and especially in the weeks prior to January 6, were all focused on creating a circumstance where it might be possible, in the words of Representative Adam Schiff (D-Calif.), to “interfere with the proper conduct of the January 6th [certification process in Congress].”
Had there been no Electoral College, there would have been no critical juncture at which to interfere.
So why didn’t the committee explain how abolishing the Electoral College could eliminate future threats? Because, according to media reports, Wyoming Representative Liz Cheney, the leading Republican on the bipartisan committee, had no interest in doing so.
In early June, Axios reported, “Nobody on the House select committee is more committed than Rep. Liz Cheney (R-Wyo.) to pursuing Trump for inciting the attack on the Capitol. But she flatly opposes some of the more sweeping election law reforms backed by several committee Democrats.”
Specifically, reported Axios, “Cheney thinks the committee will burn its credibility if it pushes for radical changes like abolishing the Electoral College, according to a source with direct knowledge. She also has joked to her colleagues on the committee that there’s no way the single at-large representative for the tiny state of Wyoming would support abolishing the Electoral College, according to another source with direct knowledge of the internal committee deliberations.”
Cheney, whose reelection bid was overwhelmingly rejected by the voters of Wyoming in August, may have thought that abolishing the Electoral College was a joke. But her opposition to the idea proved to be a serious matter for the committee. Democrats knew they needed her support to send a bipartisan signal to the Department of Justice with regard to prosecuting Trump. So proposals to eliminate—or, at the least, to neutralize—the Electoral College were abandoned.
That was a mistake, as the Electoral College is very likely to be at the center of future disputes over presidential elections.
Trump lost the popular vote in 2020 by more than 7 million ballots, just as he lost it in 2016 by roughly 3 million ballots. In any other democratic republic, he wouldn’t have gotten near the White House. And he certainly would not have been afforded an opportunity to cling to power.
But because the Electoral College system allows the popular-vote loser to “win,” Trump made a big deal about close contests in a handful of battleground states—Arizona, Georgia, and Wisconsin, in particular—where electoral votes were up for grabs. Democrat Joe Biden clearly won those states, as canvasses, recounts, and court rulings confirmed. But Trump’s contesting of relatively close contests framed his objection to the 2020 results, and his call to insurrection.
Doing away with the Electoral College would end the tyranny of the battleground states and allow the United States to have nationwide elections in which every vote counts equally. Representative Raskin understands this. That’s why he has long advocated for steps that would nullify the Electoral College.
A constitutional amendment to abolish the Electoral College would do that. But amendments are a heavy lift. This is one of the reasons Raskin has backed the bipartisan National Popular Vote initiative, a multistate compact under which states pledge to assign their electoral votes to the winner of the popular vote nationwide. The compact takes effect only when states with a majority of the nation’s electoral votes—270 or more—have signed on. So far, 15 states and the District of Columbia, with a combined 195 electoral votes, have agreed to the compact.
The January 6 committee could have called on Congress to begin the process of amending the Constitution to abolish the Electoral College, while at the same time recognizing the difficulties involved in the amendment process. With that in mind, it also could have recommended the National Popular Vote Initiative and other strategies to address the threat posed by the Electoral College. Instead, the committee avoided the issue—an unwise choice, because, as Raskin reminds us, “the Electoral College now, which has given us five popular vote losers as president in our history, twice in this century alone, has become a danger—not just to democracy, but to the American people.”