The Electoral College is here to stay

17

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.

17 COMMENTS

  1. The Electoral College, and the institutional republican government behind it, continue to function as the Founders intended. May it always be so.

    • Alexander Hamilton, the other Founding Fathers, and the rest of the Founding Generation were dead for decades before state-by-state winner-take-all laws become the predominant method for awarding electoral votes.

  2. The Founders created the Electoral College, but 48 states eventually enacted state winner-take-all laws.

    Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1
    “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

    The National Popular Vote bill would guarantee the majority of Electoral College votes and the presidency to the candidate who receives the most popular votes in the country.

    The National Popular Vote bill is states with 270 electors replacing state winner-take-all laws that award all of a state’s electoral votes to the candidate who get the most popular votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states), in the enacting states, to guarantee the majority of Electoral College votes for, and the Presidency to, the candidate getting the most popular votes in the entire United States.

    The bill retains the constitutionally mandated Electoral College and state control of elections, and uses the built-in method that the Constitution provides for states to make changes. It ensures that every voter is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.

  3. Past presidential candidates with a public record of support, before November 2016, for the National Popular Vote bill that would guarantee the majority of Electoral College votes and the presidency to the candidate with the most national popular votes: Bob Barr (Libertarian- GA), U.S. House Speaker Newt Gingrich (R–GA), Congressman Tom Tancredo (R-CO), and Senator Fred Thompson (R–TN).

    Newt Gingrich summarized his support for the National Popular Vote bill by saying: “No one should become president of the United States without speaking to the needs and hopes of Americans in all 50 states. … America would be better served with a presidential election process that treated citizens across the country equally. The National Popular Vote bill accomplishes this in a manner consistent with the Constitution and with our fundamental democratic principles.”

    Bob Barr: “Only when the election process is given back to all of the people of all of the states will we be able to choose a President based on what is best for all 50 states and not just a select few.”

    Eight former national chairs of the American Legislative Exchange Council (ALEC) have endorsed the bill

    In 2017, Saul Anuzis and Michael Steele, the former chairmen of the Michigan and national Republican parties, wrote that the National Popular Vote bill was “an idea whose time has come”.

    On March 7, 2019, the Delaware Senate passed the National Popular Vote bill in a bi-partisan 14-7 vote

    In 2018, the National Popular Vote bill in the Michigan Senate was sponsored by a bipartisan group of 25 of the 38 Michigan senators, including 15 Republicans and 10 Democrats.

    The bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).

    In 2016 the Arizona House of Representatives passed the bill 40-16-4.
    Two-thirds of the Republicans and two-thirds of the Democrats in the Arizona House of Representatives sponsored the bill.
    In January 2016, two-thirds of the Arizona Senate sponsored the bill.

    In 2014, the Oklahoma Senate passed the bill by a 28–18 margin.

    In 2009, the Arkansas House of Representatives passed the bill

    On March 25, 2014 in the New York Senate, Republicans supported the bill 27-2; Republicans endorsed by the Conservative Party by 26-2; The Conservative Party of New York endorsed the bill.
    In the New York Assembly, Republicans supported the bill 21–18; Republicans endorsed by the Conservative party supported the bill 18–16.

  4. Alexander Hamilton, the other Founding Fathers, and the rest of the Founding Generation were dead for decades before state-by-state winner-take-all laws become the predominant method for awarding electoral votes.

    The Constitutional Convention rejected states awarding electors by state legislatures or governors (as the majority did for decades), or by Districts (as Maine and Nebraska now do), or by letting the people vote for electors (as 48 states now do).

    Anyone who supports the current presidential election system, believing it is what the Founders intended and that it is in the Constitution, is mistaken. The current presidential election system does not function, at all, the way that the Founders thought that it would.

    Supporters of National Popular Vote find it hard to believe the Founding Fathers would endorse the current electoral system where 38+ states and voters now are completely politically irrelevant.
    10 of the original 13 states are politically irrelevant now.

    Policies important to the citizens of the 38 non-battleground states are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.

    “Battleground” states receive 7% more presidentially controlled grants than “spectator” states, twice as many presidential disaster declarations, more Superfund enforcement exemptions, and more No Child Left Behind law exemptions.

    Today, any state legislature simply could enact a law to just appoint their electors directly, ending their citizens voting in presidential elections

  5. The constitution specifically gives the states the ability to make interstate compacts. The idea that making one between these states subverts the constitution is contradicted by the text of constitution itself. This essay also reinforces a common misconception that the framers were monolithic in thought. Many framers from the beginning knew the process for electing the president was flawed but went along to get the whole thing done. The electoral college, like so many of the flaws in our system was created to appease the racist southern states. There have been countless efforts to get rid of it and the idea that you can see into the future and say it’s not going away is pure hubris

  6. The smaller states would never have agreed to a system that did not give them protection from the tyranny of the more populous ones. That is why they enjoy a greater than proportional voice in electing the President (and Senate). That was the deal to get them to join. Now the leftists want to move the goal posts.

    • Their agenda is in union with that of the globalists (who love the idea of open borders and the dilution of our electorate with foreigners). Maybe the current pandemic will cause some to scrutinize such agenda.

    • Past presidential candidates with a public record of support, before November 2016, for the National Popular Vote bill that would guarantee the majority of Electoral College votes and the presidency to the candidate with the most national popular votes: Bob Barr (Libertarian- GA), U.S. House Speaker Newt Gingrich (R–GA), Congressman Tom Tancredo (R-CO), and Senator Fred Thompson (R–TN).

    • For the simple fact that they are two different issues. Forcing citizens to get an ID in order to vote is simply a poll tax. Something found to be unconstitutional. There is virtually zero voter fraud in this country. Voter ID is simply another attempt to disenfranchise the poor and minorities.

      • Voter ID also disenfranchises illegal aliens. If you think voter fraud is virtually zero you are drinking too much kool aid.

  7. The electoral college is an attempt to regulate an election in the same way as the House and the Senate are two different houses and regulated with two different powers. The House is by the people and to balance it the Senate is the power of the state.

    If you were to rid the electoral college, potential chaos would ensue. Why? Imagine that you only needed the vote of the largest cities? Now you promise them something/anything to gain their votes at the expense of farmers and rural areas. You win! For the good of the country the framers recognized that and their best response was the electoral college. Any small population state would be put at disadvantage in the long run to such policies were to come in an existence. Whatever party you belong to, sooner or later you would be unhappy. The United States is not a democracy, it is a republic. The chief difference between a democracy and a republic is rule of law vs. democracy which is mob rule. Recognizing this is why the framers have the electoral college.

  8. Funny, this seems to be an issue only when the Socialists lose.
    It’s akin to expanding the Supreme Court when decisions don’t go there way.

    BREAKING
    Hillary Clinton tests negative for President of the United States.

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