Elections Lawyer Argues for Reevaluation of Electoral College

Election and campaign finance lawyer Jerry H. Goldfeder encouraged Americans to remain resilient in light of the presidential election results at a Law School event on Friday.

Invited by the Harvard Law School Democrats, Goldfeder gave a talk entitled “After 2016, Do Our Election Laws Still Work?”, one of many discussions about election laws in which he has participated on campuses across the country. Friday’s presentation was particularly timely, following the unexpected victory of Donald Trump in the presidential election.

Goldfeder, who served on the National Finance Committee of Hillary Clinton's campaign, began the presentation by highlighting the messages conveyed in Clinton’s concession speech.

“Her remarks, like the President’s remarks, were extremely critical,” Goldfeder said. “She also talked about the importance of our responsibility as citizens, as voters, to make sure that we guard the rights, the hard-earned rights, that we won over the years.”

Addressing the fact that Clinton won the popular vote but not the Electoral College, Goldfeder continued by discussing contemporary election laws in the context of the recent election.

“Modern America is burdened by the fact that decisions were made in Philadelphia in 1787 and we are still living with them,” Goldfeder said. “And the most important one this week is, ‘you won the election but you didn’t win the election.’”

Goldfeder addressed what he called drawbacks of the current electoral system, explaining that 48 states—not including Maine and Nebraska—and Washington D.C. use a plurality system to elect presidential candidates, and referenda to change the status quo rarely pass.

“Whoever wins a plurality not a majority... in the state gets the whole thing, gets all the electors,” Goldfeder said. “There have been proposals to change the way we award our electors.”

He referenced a 2004 referendum in Colorado to introduce a proportional system for appropriating votes as an example of efforts to update the Electoral College. That referendum, however, ultimately did not pass.

Despite failed efforts like the one in Colorado, Goldfeder argued for the continued importance of evaluating the electoral system, especially given the political climate following the election.

The Democrats “lost the election because of our Constitutional prescriptions,” Goldfeder said. “So maybe... the legal and political direction we go in is attempting to change the way the system has functioned for all these many years—this anachronistic, bizarre system—either through the national popular vote or through amending the Constitution.”

Megan P. Ma, a Canadian citizen and visiting law student from the Paris political studies school Sciences Po, expressed her thoughts on the election and election laws following the event.