Politics and primaries have rightly taken second place to concerns about COVID-19. But recently, as we move toward the presidential election, renewed criticism has arisen about the Electoral College, the way Americans choose their president: not by the popular vote but by electors chosen in each state to cast ballots.
Democrats complain that the elections of 2000 and 2016 were undemocratic because the loser of the popular vote became president both times. This also happened in 1824, 1876, and 1888. They argue that we should no longer rely on a mere 538 electoral votes, rather than the voting population.
But the framers of the Constitution thought this ensured the election of the very best candidate. We the common people were too passionate, too emotional, and not rational enough to elect the chief executive officer of the United States. The framers abhorred “democracy,” which they thought led to mob rule. Alexander Hamilton was so certain of its efficacy, he said in Federalist 68 that it is “at least excellent,” if “not perfect.”
An aside: The Constitution addresses “electors,” not an “Electoral College,” a term that came into being in 1845 in congressional legislation.
The framers accordingly erected a system of indirect election, not only for the president but also originally for senators, because they feared that the passions of the people would always overcome their reasoning ability. The 17th Amendment, ratified in 1913, provided for the direct election of senators, but the role of electors remains intact.
In my judgment, despite the criticism, the Electoral College will remain. Here is why.
The Supreme Court is set to hear arguments next month in two cases regarding the independence of electors. Although the justices postponed March’s oral arguments, and maybe April’s as well, they could still rule on a case, because they have all the written briefs.
The question in both is whether electors may exercise their individual judgment and cast their votes for whomever they wish. Or must they vote for the candidate to whom they have pledged their support? Those who violate their pledge are known as “faithless” or “rogue” electors. From the election of 1796 to 2016, some 150 electors have gone rogue. None has ever changed the outcome.
Several suggestions have arisen about how to change this voting process. One is that instead of states voting as a single unit with winner-take-all in a presidential election, states divide their votes by congressional district. Only Maine and Nebraska follow this practice, and no other state appears interested.
Also, an organization, the National Popular Vote Interstate Compact, wants each state to agree that it will bestow its electoral votes on the candidate who wins the national popular vote, no matter if another candidate gains a majority in the state. So far, 16 states and the District of Columbia, with a combined total of 196 electoral votes, have agreed to join the compact. All have a liberal majority.
But no matter how the court rules in the two cases, the decision will permanently protect electors. Bear in mind, electors’ votes are public, so we know for whom electors voted. In one case, three Democratic electors in Washington State in 2016 failed to vote for Hillary Clinton when she won the state. Instead, they voted for Colin Powell, in violation of a state law that required them to vote for Clinton. After they challenged their fines of up to $1,000, they lost their appeal when the Washington State Supreme Court ruled that the Constitution allows states great leeway in determining how the electors must vote.
In dissent, one judge wrote that electors were “free agents” and could vote as they pleased. As he put it, electors “exercise an independent and nonpartisan judgment as to who was best qualified for the nation’s highest offices.”
In Colorado, the second case, an elector pledged to Clinton cast his vote for John Kasich. A divided panel in the U.S. Court of Appeals for the 10th Circuit ruled that the faithless elector had the right to do this, basically echoing the dissenting Washington judge’s view that electors were free agents. Two of the three judges on the 10th Circuit held that electors were “free to vote as they choose.”
The fact is that both outcomes guarantee the continued existence of the Electoral College. If state law binds its electors to vote for the winning party candidate to whom they are pledged (Washington State), or if electors are free agents to decide on their own for whom they will vote (Colorado), the college remains in place.
To allow states to pledge their electoral votes to the winner of the national popular vote, as the compact asks, would be amending the Constitution without going through the tedious and likely impossible process of a constitutional amendment. So, no matter how the Supreme Court rules in these two cases, we can expect that the Electoral College will remain part of our presidential election landscape until it is amended out of Article II of the Constitution, an impossible task in these politically polarized times.
Jack Fruchtman, who spends most of his time in Aquinnah, taught constitutional law and politics at Maryland’s Towson University for more than 40 years.
