Ensuring the Consent of the Governed

October 15, 2024

“The basis of our political systems is the right of the people to make and to alter their constitutions of government.” George Washington’s Farewell Letter

On November 6, 2024, a crucial election will occur. California citizens will cast votes that do not hold as much value as those in most other states. This is a serious and potentially fatal flaw in our constitution. In this election, the presidential candidate winning the popular vote may need to secure over 5,000,000 more votes than the other candidate to win due to the Electoral College system. This situation does not reflect the democratic principle of the majority deciding issues; it represents a tyranny of the minority. The Electoral College should be removed from the Constitution to ensure that the voice of the people is heard and valued.

The Electoral College is mandated by Article II, Section 1 of the United States Constitution. Over the years, numerous attempts have been made to abolish the Electoral College through constitutional amendments. All attempts failed. Why did these attempts at constitutional amendment fail? There are several reasons:

1. The Constitution does not define states in terms of population. As a result, state populations vary from around 600,000 to almost 40,000,000 people. Additionally, the Constitution allocates two senators to each state regardless of its population. This creates an opportunity for minority rule. For example, the fifty largest metropolitan areas in the United States account for 53% of its population and almost 66% of the nation’s GDP1. Twenty states do not contain any of the fifty largest metropolitan areas. The combined population of these twenty states is less than 6% of the nation’s population and less than 7% of its GDP. The Constitution only requires the disapproval of 13 states to block any proposed amendment to the Constitution. Also, forty senators can likely prevent any legislation from receiving a floor vote. Therefore, these twenty states have the power to obtain and maintain a tyranny of the minority. This is gerrymandering to an extreme, and this fact alone is enough reason to eliminate the Electoral College.
2. Article I, Section 4 of the US Constitution states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” As a result of this article, all states define how voting districts within them will be configured, and subsequently, they define how Electoral College votes will be distributed. As a result, most state voting districts are configured in a manner that favors the prominent party. This situation was amplified by Rucho v. Common Cause (2019), a landmark case concerned with partisan gerrymandering. The Supreme Court ruled that while partisan gerrymandering may be “incompatible with democratic principles,” the federal courts cannot review such allegations, as they present nonjusticiable political questions outside the remit of these courts.
3. The requirement to have two senators in each state, regardless of their population, results in large states’ voting power being less than the voting power of smaller states.
4. Since 2000, two of the four presidents have been selected by the Electoral College vote, namely George W. Bush and Donald Trump. These two presidents collectively appointed five Supreme Court Justices. Without the Electoral College, the Supreme Court might have been more balanced and may not have made the following highly politically charged decisions: Dobbs v. Jackson (2018), Rucho v. Common Cause (2019), Brnovich v. Democratic National Committee (2021), Garland v. Cargill (2024), Trump v. United States (2024), Fischer v. United States (2024), Alexander v. South Carolina State Conference of the NAACP (2024), Loper Bright Enterprises v. Raimondo (2024), Snyder v. United States (2024), Trump v. Anderson (2024). It would be interesting to see if the decisions in these cases would have survived if they had been subject to the approval of the collective voice of the people.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights. That Governments derive their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of its ends, it is the right of the People to alter or abolish it, and to institute new Government, laying its foundations on such principles and organizing its Powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” -The Declaration of Independence

Although these words are not part of the nation’s Constitution, they certainly fall into the realm of the 9th Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” As the Declaration of Independence states, our government has become destructive of its ends, and it is the right of We the People to alter or abolish it. The question is how do we, the people, accomplish the alteration of the Constitution and abolish the Electoral College? The United States Constitution, Article V states, “The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; …”

The courts have viewed Article V of the Constitution as the sole means of Amending the Constitution. They have not acknowledged Article V’s textual meaning that it specifically applies to the Federal and State governments and not to the sovereign right of the nation’s collective citizenry.2 The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.3” This amendment identifies three sovereign entities, the Federal and state governments and We the People.
The Preamble of the US Constitution States:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Ordain means to order or decree (something) officially. If We, the People, have the sovereignty to ordain and establish, we have the right to alter or abolish what we have ordained. As the Declaration of Independence states, “Governments derive their just powers from the consent of the governed.” The First Amendment states, “Congress shall make no law abridging … the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” A petition is a formal written request, typically one signed by many people, appealing to authority with respect to a particular cause. Redress means to remedy or compensate for a wrong or grievance.

As stated previously, how should We the People of California, proceed to eliminate the Electoral College? Petition all state governors, the House of Representatives, and President Biden to require a national referendum to remove the Electoral College requirements from the Constitution. This national referendum must express the collective voice of the people and be free of state influence and interference.

No matter how we achieve the abolition of the Electoral College, it is imperative for us, the people, to persist in obtaining the right to override decisions made by different branches of our federal and state governments when we believe these decisions do not align with the majority’s opinion. We, the people, should demand the inclusion of a provision in our constitution that allows us to collectively modify our government through a majority vote. This provision should include an automatic referendum by the people to review and approve or disapprove governmental actions.

In a democratic system, majority rule is essential. All decisions should be based on the preferences of the majority vote of the governed.

Notes and Acknowledgment:
The works of Mr. Amar and Ms. Reece were the most helpful in my year-long search for understanding the individual and collective rights of the people in our government.

Calculated from two Wikipedia articles.

Popular Sovereignty and Constitutional Amendment by Akhil Reed Amar (abridged)

Or To The People: Popular Sovereignty And The Power To Choose A Government by Elizabeth Anne Reese (Reese 39.6.2 – 6/29/2018, 10:09 AM)