Law scholar sounds alarm: America could break apart if the Constitution isn’t fixed

One legal scholar is fearful that the deep constitutional flaw that is the Electoral College risks tearing apart America and causing another secession crisis, writes Michelle Goldberg for The New York Times.

The ever-controversial system for electing presidents, which sometimes overrides the popular vote, was thrown into further controversy this month as Nebraska Republicans moved to try to change their elector rules at the last minute in a way that would favor former President Donald Trump, by no longer allowing Omaha's congressional district to choose its elector independently.

However, Republicans appear to lack the votes to do so as Mike McDonnell, a key Republican state senator who recently defected from the Democratic Party — is rumored to want to run for mayor of Omaha — put his foot down against the plan.

"Whether or not McDonnell remains steadfast, this is a preposterous way to run a purportedly democratic superpower. The Electoral College — created in part, as the scholar Akhil Reed Amar has shown, to protect slavery — has already given us two presidents in the 21st century who lost the popular vote, and it continues to warp our politics," wrote Goldberg.

And this is why U.C. Berkeley School of Law dean Erwin Chemerinsky is so pessimistic, she wrote: "'I believe that if the problems with the Constitution are not fixed — and if the country stays on its current path — we are heading to serious efforts at secession,' he writes in his bracing new book, 'No Democracy Lasts Forever: How the Constitution Threatens the United States.'"

Chemerinsky advocates in his book for calling an Article V "convention of states" to overhaul the Constitution, in the hopes of getting rid of the imbalance that has let a small far-right minority have an advantage in the electoral process and the Supreme Court.

This is an unusual position for someone on the left, as most of the Article V push in recent years came from Republican state legislatures who want to do exactly the opposite — but he fears if nothing is done, the country is on a dark path.

"But right now, we’re staring down yet another election in which Trump could win after losing the popular vote. Chances are he’ll have a Republican-controlled Senate, even if most people who go to the polls vote for Democrats. He’ll operate under the protection of a widely distrusted Supreme Court — the only one in any major democracy where justices have lifetime tenure — that has granted presidents broad impunity for crimes they commit in office," wrote Goldberg.

Chemerinsky, she concluded, blames "the mistakes of 1787" for this situation — and, she added, "The question is whether America is capable of fixing them before they destroy us."