First things first: The Electoral College -- the system by which each state casts votes for president based on its total number of US senators plus representatives -- is memorialized in Article II of the Constitution. The only way to completely get rid of the Electoral College is to amend the Constitution, a laborious process that requires approval from two-thirds of the US Senate, two-thirds of the House of Representatives, and then ratification by three-fourths of all states -- 38 of the 50 states. (There are other even more complex ways to amend the Constitution as well).
As a political and practical matter, there is virtually no chance of this happening; lesser-populated states, and the Republican party in general (which has lost the national popular vote in seven of the past eight elections) stand to lose too much.
Short of a constitutional amendment, however, the states can take steps to change how they allocate their presidential electors. The Constitution does not specifically instruct states how to assign those electoral votes; rather, it leaves it up to state legislatures to determine their own methodologies.
Currently, the vast majority of states award all of their electors to the winner of that state's popular vote. But two states -- Maine and Nebraska -- allocate electors based on the winner of each congressional district within the state.
Maine has four total electoral votes; two go to the overall winner of the state's popular vote and the others go to whomever wins the vote in each of the state's two congressional districts. Nebraska uses the same approach, only with five total votes -- two to the state's total popular vote winner and one to the winner of each of the state's three congressional districts. Other states have the power to pass similar laws that assign electors based on something other than a winner-take-all basis.
The primary obstacle here is pure politics. Take California, for example. California has voted for the Democratic presidential candidate for the past eight elections, dating to 1992, giving those candidates all of its 55 electoral votes in 2020. But there are areas in California that lean Republican, and its newly-elected congressional delegation includes 11 Republican representatives. So a switch to the Maine-Nebraska model would mean that at least some of California's 55 electors would go to the Republican candidate. Good luck persuading California's Democratic-controlled state Senate and Legislature and Democratic governor to go along with that. The same analysis applies, in reverse, to strongly Republican states.
Perhaps recognizing the difficulty of amending their laws, several states have undertaken an effort called the National Popular Vote Interstate Compact. This set of proposed laws takes effect only if and when adopted by a group of states that collectively carry the 270 electoral votes necessary to win the presidency. Currently, it has been adopted by 16 states (including Washington, DC) carrying 196 electoral votes, so they've got a ways to go.
There are, however, legitimate questions about whether such an agreement is lawful or even realistic. Opponents argue that, without congressional consent, it could violate the Constitution's bar on interstate compacts, and that it is simply an end run around the Constitution's Electoral College system.
On a practical level, some note that it would be impossible for any given state to order a nationwide recount, if the vote were close. If this system ever is passed by states holding the requisite 270 electoral votes, expect to see heated legal challenges in the federal courts.
The Electoral College has been a defining feature of our political system for more than 220 years, and it likely will be with us far into the future. But there are innovative legal options available that can tilt the balance in favor of the winner of the national popular vote.
Now, your questions:
Gerben (Netherlands): Does accepting a presidential pardon mean that you admit you did the crime?
Not necessarily. Certainly, a presidential pardon creates the appearance that the recipient has committed some crime, and often that is the case. And the Justice Department's Office of the Pardon Attorney considers "acceptance of responsibility, remorse, and atonement" as one of many relevant factors in deciding whether to grant a pardon. (Trump has largely ignored the Pardon Attorney and simply issued pardons on his own determination).
But there is no formal law requiring a pardon recipient to admit guilt. In fact, two scenarios demonstrate that an admission of guilt is not a necessary condition for a pardon. First, presidents certainly can issue pardons to people who have been wrongly accused or convicted; in that case, as a logical matter, the recipient cannot and need not admit guilt. Second, presidents can and have issued posthumous pardons; obviously, a dead person cannot accept or acknowledge guilt.
Roy (Maryland): If Donald Trump runs again in 2024 and wins, can he run for reelection after that? In other words, can a president serve more than two terms if they are not consecutive?
No. If Trump runs for president again in 2024 and wins, he is barred by the Constitution from ever running again after that.
The 22nd Amendment -- ratified in 1951, after Franklin Delano Roosevelt won a fourth term in office in 1944 -- provides that "No person shall be elected to the office of the President more than twice." It does not matter if those two terms are consecutive or separated by another presidential term (or terms). It's two terms and out, period.
Joseph (Florida): Now that another Trump administration official, White House trade adviser Peter Navarro, has been found to have violated the Hatch Act, what are the possible punishments?
The Hatch Act is a federal law that limits the ability of federal employees to engage in political activity while on the job or connected to their official duties. The law has some teeth, but not many. A violation is punishable by a fine of up to $1,000 and by reprimand, suspension, demotion or removal from federal employment. It also is a federal crime for a federal employee to engage in prohibited political activity. But such prosecutions are extremely rare, and Navarro hasn't been accused of violating this particular provision. Congress should consider seriously upgrading the penalties for Hatch Act violations, if it is serious about keeping politics out of the federal workplace.
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December 14, 2020 at 07:18AM
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There are innovative legal ways to get the Electoral College to reflect the popular vote - CNN
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