Before November 8, very few pundits were intent on abolishing the electoral college. Yet, after Donald Trump won the electoral college but lost the popular vote, suddenly, Alexander Hamilton’s contribution to the Constitutional Convention has become target number one. Indeed, lawsuits are brewing, alleging that the Electoral College violates the Equal Protection Clause (or at least some Warren Court decisions interpreting it).  I share Rick Hasen’s general criticism that these “pie-in-the-sky” arguments are too late. “If one were serious about pushing this argument,” Rick noted, “the time to advance it is not to try to change the outcome of an election already conducted.” Agreed.

Fortunately, not all opponents of the electoral college are quite so opportunistic. Representative Gene Green (D-TX) introduced a bill into 2005 to amend the Constitution to eliminate the electoral college. He introduced a similar bill in 2009. Now, suddenly, Green’s ideas are gaining some traction. Green re-introduced his bill on November 17, 2016. Here is the text of the bill:

The following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:

—1.The President and Vice President shall be elected by the people of the several States and the district constituting the seat of government of the United States.
2.The electors in each State shall have the qualifications requisite for electors of Senators and Representatives in Congress from that State, except that the legislature of any State may prescribe less restrictive qualifications with respect to residence and Congress may establish uniform residence and age qualifications.
3.The persons having the greatest number of votes for President and Vice President shall be elected.
4.Each elector shall cast a single vote jointly applicable to President and Vice President. Names of candidates may not be joined unless they shall have consented thereto and no candidate may consent to the candidate’s name being joined with that of more than one other person.
5.The Congress may by law provide for the case of the death of any candidate for President or Vice President before the day on which the President-elect or Vice President-elect has been chosen, and for the case of a tie in any election.
6.This article shall apply with respect to any election for President and Vice President held after the expiration of the 1-year period which begins on the date of the ratification of this article.

Yesterday, Houston Matters, an excellent public affairs program on Houston Public Radio invited Rep. Green to discuss his proposal. Afterwards, I joined the program to discuss the Amendment, how it can be ratified, and what I thought about the electoral college. In what should come as no surprise to anyone who has read this blog, or listened to my lectures, I reminded the people of Houston that we do not live in a Democracy, but a Republic. The framers were skeptical of popular majorities, and Alexander Hamilton–long before he was a Broadway Superstar–supported the electoral college as a check on despotism.

Enjoy the show–I come on at the 7:00 minute mark.