Election Reform? Don’t Forget the Constitution
Rick LaRue is an independent analyst of constitutional electoral structure who writes at Structure Matters. His 40-year career in Washington, DC nonprofits included service as the deputy director of the Eisenhower Institute and of the American Society of International Law.
In this week’s “Constitutional Conversations” post, Rick LaRue summarizes the case he makes in his latest article in the Election Law Journal, “We Love the Bill of Rights. Can We Like a Bill of Structures?”, in which he describes the erosion of four electoral pillars – voting, the Electoral College, term lengths and term limits – and proposes amendments that would repair them. He also discusses amendment timing, from its cyclical past to future prospects, including by the 250th anniversary of the Constitution in 2037.
Constitutional contributions to the erosion of American democracy are hard to see but growing harder to ignore. While protecting voting rights and improving election processes are perennial and frequently urgent needs, our electoral structures beneath them are cracking. Fixing them means amendments.
Why contemplate such seemingly unlikely steps now? Three reasons: the disasters of the Electoral College will persist until we abandon it; other structural pillars—term limits, term lengths and voting—are corroding after 236 years’ use; and our cyclical amendment history makes clear that decades-long periods may pass without amendments, like the period we are in now, only to be followed by clusters of amendment activity (i.e., the politics or constitutional cultures of any moment do not last).
No better example of this last reason comes from the end of The Gilded Age. The Washington Post reflected the views of leading scholars and historians when it editorialized in 1899 that “we may properly regard the Constitution as unamendable.” Just 14 years later, the 16th and 17th amendments were ratified. Such timing could resonate, as the 250th anniversary of the Constitution arrives in 2037. Its proper celebration requires repair via a Bill of Structures.
First, the Electoral College. Its occasional flaw of selecting a popular-vote loser as president overshadows what it does every election: value individual votes differently simply because of state borders, and discourage voting in “safe” states (e.g., turnout was 11% less in non-swing states in 2012 and 2016). Such misrepresentation should be disqualifying for a healthy democracy.
Presidential elections need to rely on both the popular vote (e.g., as is done in every U.S. state’s gubernatorial election) and majority rather than plurality outcomes. The latter requirement means runoffs, which only two states use for their general elections for governor. The instant runoff method of ranked-choice voting is now being tested; if its successes continue, we could roll it out nationally—in time for the Constitution’s quarter millennium.
Second, three other structural electoral pillars work with the Electoral College to frame our institutions and determine their leaders. They also need repair.
Term Limits: Presidents are limited to two terms. Members of Congress, however, mistakenly lack any limit. The common proposal—two Senate terms and their House equivalents—produces a too-short maximum of 12 years’ service. This would take expertise out of Congress and empower special interests.
Lengthier limits would address the genuine problem of excessive tenures clogging congressional leadership and diminishing service. Limits of four Senate terms, for example, would allow experienced Senators—still in their prime—to remain in office to vitalize their institution.
Term Lengths: Also too short are two-year terms for representatives. Additionally, equal four-year presidential terms produce multiple problems. A three-year election cycle would repair both. The straightforward legislative changes—three-year House terms and six-year Senate terms contested every three years—would counter the permanent campaign and require no administration.
But saving time—for citizens and officeholders alike—is just the beginning. Significant governing benefits would come from changing the first presidential term to six years, and the second term to three. The current four-year terms are equal in length but decidedly unequal in productivity, hence the widely acknowledged second term cursed.
The curse, however, is on reelection timing, which provides a premature “four-year crutch.” A six-year first term and three-year second term would value the terms more accurately and make incumbents compete at Kevin Phillips’s “six-year itch,” when voters are readier for change. This would level the playing field for challengers and strengthen incumbents’ mandate should they win. Lame ducks would serve for one-third rather than one-half of any two-term presidency. (The above-cited Election Law Journal article contains additional benefits and reasons why Donald Trump is a non-factor here).
Voting: Voting is the one electoral pillar that can be modified without constitutional amendment. However, its role—creating the legitimating base beneath any government—is so structurally fundamental that it belongs in the Constitution. Without strong turnout, the base that voting creates becomes more like quicksand than granite. Since 1980, just 29% of eligible voters have cast ballots for presidential winners, whereas nonvoters have accounted for 43% of eligible voters. Instability should be no surprise; it is built in.
A voting amendment would affirm the right and the obligation to vote. Prior voting amendments have been in the negative, saying that the right cannot be denied on account of race or sex, for example. An affirmative amendment would anchor needed implementing measures and minimum standards.
Third and finally is history. Most amendments have come in 10-year clusters, followed by four quiet decades (occasional lesser, “patch” amendments occurred between these “waves”). This 50-year cycle repeated three times after the Civil War; had it continued, amendments would have filled the 2010s. The cycle either broke or was delayed, perhaps by hyper-partisanship or technological change.
What comes next and when? The Post’s mistake in 1899—assuming that the Gilded Age’s polarization would prevent future amendments—offers hints. Not only did the Progressive Era amendments prove the newspaper wrong, but they remind us that current political conditions are neither constant nor predictive.
If we look ahead to 2037, the political environment will assuredly be different. It may be worse but could be better. Let’s plan to celebrate the Constitution by repairing it. We love the Bill of Rights. Why not a Bill of Structures?