An Apologia for the Electoral College
OK, so here goes my apologia for the Electoral College, or
at least for the indirect election of the President of the United States. Before we begin, let us make sure we are knowledgeable
of what is and is not the Electoral College. To start from the beginning, this is what is
written in Article 2 of the Constitution as drafted and ratified:
“2. Each State shall appoint, in
such Manner as the Legislature thereof may direct, a Number of Electors, equal
to the whole Number of Senators and Representatives to which the State may be
entitled in the Congress: but no Senator or Representative, or Person holding
an Office of Trust or Profit under the United States, shall be appointed an
Elector.
3. The Electors shall meet in
their respective States, and vote by Ballot for two Persons, of whom one at
least shall not be an Inhabitant of the same State with themselves. And they
shall make a List of all the Persons voted for, and of the Number of Votes for
each; which List they shall sign and certify, and transmit sealed to the Seat
of the Government of the United States, directed to the President of the
Senate. The President of the Senate shall, in the Presence of the Senate and
House of Representatives, open all the Certificates, and the Votes shall then
be counted. The Person having the greatest Number of Votes shall be the
President, if such Number be a Majority of the whole Number of Electors
appointed; and if there be more than one who have such Majority, and have an
equal Number of Votes, then the House of Representatives shall immediately
chuse [sic] by Ballot one of them for President; and if no Person have a
Majority, then from the five highest on the List the said House shall in like
Manner chuse the President. But in chusing [sic] the President, the Votes shall
be taken by States, the Representation from each State having one Vote; A
quorum for this Purpose shall consist of a Member or Members from two thirds of
the States, and a Majority of all the States shall be necessary to a Choice. In
every Case, after the Choice of the President, the Person having the greatest
Number of Votes of the Electors shall be the Vice President. But if there
should remain two or more who have equal Votes, the Senate shall chuse [sic] from
them by Ballot the Vice President.
4. The Congress may determine the
Time of chusing [sic] the Electors, and the Day on which they shall give their
Votes; which Day shall be the same throughout the United States.”
This was then quickly modified in the twelfth amendment,
modifying section 3 of the above, which reads:
“The Electors shall meet in their
respective states, and vote by ballot for President and Vice-President, one of
whom, at least, shall not be an inhabitant of the same state with themselves;
they shall name in their ballots the person voted for as President, and in
distinct ballots the person voted for as Vice-President, and they shall make
distinct lists of all persons voted for as President, and of all persons voted
for as Vice-President, and of the number of votes for each, which lists they
shall sign and certify, and transmit sealed to the seat of the government of
the United States, directed to the President of the Senate; - The President of
the Senate shall, in the presence of the Senate and House of Representatives,
open all the certificates and the votes shall then be counted; - The person
having the greatest number of votes for President, shall be the President, if
such number be a majority of the whole number of Electors appointed; and if no
person have such majority, then from the persons having the highest numbers not
exceeding three on the list of those voted for as President, the House of
Representatives shall choose immediately, by ballot, the President. But in
choosing the President, the votes shall be taken by states, the representation
from each state having one vote; a quorum for this purpose shall consist of a
member or members from two-thirds of the states, and a majority of all the
states shall be necessary to a choice. And
if the House of Representatives shall not choose a President whenever the right
of choice shall devolve upon them, before the fourth day of March next
following, then the Vice-President shall act as President, as in the case of
the death or other constitutional disability of the President. - The person
having the greatest number of votes as Vice-President, shall be the
Vice-President, if such number be a majority of the whole number of Electors
appointed, and if no person have a majority, then from the two highest numbers
on the list, the Senate shall choose the Vice-President; a quorum for the
purpose shall consist of two-thirds of the whole number of Senators, and a
majority of the whole number shall be necessary to a choice. But no person
constitutionally ineligible to the office of President shall be eligible to
that of Vice-President of the United States.”
Finally, the twentieth amendment made a small adjustment in
section 3 of its text, modifying the italicized section above, which reads:
“3. If, at the time fixed for the
beginning of the term of the President, the President elect shall have died,
the Vice President elect shall become President. If a President shall not have
been chosen before the time fixed for the beginning of his term, or if the
President elect shall have failed to qualify, then the Vice President elect
shall act as President until a President shall have qualified; and the Congress
may by law provide for the case wherein neither a President elect nor a Vice President
elect shall have qualified, declaring who shall then act as President, or the
manner in which one who is to act shall be selected, and such person shall act
accordingly until a President or Vice President shall have qualified.”
First, the default way that the constitutional convention
had thought about the election of the President/Executive, was to have it be
elected by the Congress (Virginia (https://www.ourdocuments.gov/doc.php?flash=false&doc=7&page=transcript)
and New Jersey (https://www.usconstitution.net/plan_nj.html)
plans), e.g. a Parliamentary election of sorts.
That changed as the office of the Presidency took form, was given
distinct powers, and the need for a truly independent executive was made
clear. Note: the authors of the Constitution were cautious
and wanted to guard against mob rule (as seen in the failures seen in the
numerous Italian and other republics in the recent and ancient past as a result
of too much pure democracy), while forming a government that would not fall
into the travails seen in the British parliamentary system of that time. They were forming a republic that had democratic
and non-democratic features, to ensure protection of minorities (small states
and other concerns) as well as still ensuring it found its sovereignty in the
consent of the governed. So while
wanting the President to represent all, they were very concerned about the rise
of a tyrant that could come to power by mob action and have nefarious character
(Federalist #68, https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-68),
especially given the awesome and sweeping powers that were being granted to the
executive in the Constitution. As is
well documented, the example of Washington himself was ever-present in this
work, but the founders knew not all men were as scrupulous as the presumptive
first President was in character. To
that end, they created a bridge called the Electoral College that would, in
theory, consist of statesmen of renown and wisdom that would be electors for
the Presidency based on a manner in which each State would choose. Many things have changed between the late
eighteenth century and now. I still
believe, however, that there is a protective function needed in the selection
of the President, and before we throw the proverbial baby out with the
bathwater, let us try to fix that protective measure, or find a suitable
replacement, rather than repeal it and create a potential deeper set of problems
that will be harder to remedy.
Let me be succinct in saying that the Electoral College
failed in the presidential election of 2016.
It failed for several reasons. Let
us be clear, however, that the failure of the Electoral College in 2016 was not
based solely on its existence. First, it
failed because of the fact that the States put in legal measures that forbade
electors from acting out of conscious (several spoke out against having to vote
the way they did, and considered strongly being unfaithful electors), and, rather,
forced to follow the particular State plebiscite rules for awarding
presidential and vice presidential electoral votes. Second, it failed because electors, by-and-large,
are chosen by and with the potential candidates in mind, often with direct influence
by those campaigns. Thus, the selection
of electors is not resulting in the selection of individuals that are
independent in the process. Next, the Electoral
College failed because of the superimposed “winner takes all” plebiscite approach
in most States in regards to the selection of the electors. Finally, it also failed in that, because of
the preceding, the fact we live in an instantaneous information age, and absent
a few tight States, there was already a result presumptive winner well known,
with lawyers lining up for suit and countersuit (with only the example of 2000
as an object lesson for which the Clinton campaign was wise not to repeat).
Note that in all of the above, save the fact we no longer
have the need to currier ballots by horse and wagon, does this really effect
the construct of the Electoral College as it is written in the
Constitution. I, for one, think we have
let a person with limited, if any, respect for our republican form of
government into the Whitehouse; we cannot let that happen again. The fix from my perspective, however, is not
to hand ourselves over to illiberal democracy (https://msuweb.montclair.edu/~lebelp/FZakariaIlliberalDemocracy1997.pdf
or his excellent book: https://www.amazon.com/Future-Freedom-Illiberal-Democracy-Revised/dp/0393331520)
by out and out removal of the Electoral College (or any protective measure in
the election of the mighty and powerful office of President of the US) as is
being advocated by some today. Rather, we
need to develop a fix for it that meets the following intents:
- Providing for a way for a general expression of the people in the election of the chief executive of the nation, independent of the legislature
- Providing a protection against illiberal populism in the election of the President
- Restricting the States from imposing any strictures on those that have direct elective roles for the Presidency
To me this means we need to proceed with some measures,
first to see if we can fix the Electoral College, and if that fails then coming
up with an alternate indirect election schema that meets the above
intents. I would propose a series congressional
acts or amendments (if needed), or develop through a compact through the
numerous states, that do the following as ways to aid in the fixing of the
Electoral College as it is already scripted (and amended by the 12th
and 20th amendments):
- Provide for the selection of electors for the candidates for the political parties, no later than two years prior to the date of election for the Presidency. Rational: these electors would not be a part or party to a particular presidential campaign nor be those that ran/didn’t run for congress/senator that might be beholden to those that are.
- Prohibit States from dictating, in any way, how an elector chooses to name on the ballot for President or Vice President of the United States. Rational: enabling the original intent found in Federalist 68 for electors to ensure “that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”
- Prohibit States from allocating all of their electors en masse based on the plebiscite of their State for the election of President and Vice-President, but instead require them to allocate electors proportionally based on said plebiscite. Rational: this recognizes that the need to have the electoral college reflect a closer reflection of the national popular vote, but also returning to another facet of the value of the original design of the Electoral College in that it avoids the concentration of power. It also may have the effect of better avoiding regionalization of national parties as a path to the Presidency will have to be responsive across the spectrum of national issues.
In conclusion, I am a firm believer that before we go about
changing things, we look back to the past and understand why things exist in
the first place, and then discern the path forward. In regards to the Electoral College, there
are numerous reasons for its existence.
Some of these are indeed no longer valid, such as the need to transmit
votes over long distances based on beasts of burden. Others are still very much valid and should
not be easily forgotten or tossed aside.
In this discernment one needs to consider, is it the mechanism that is
the problem or the reason for the mechanism?
I argue that most of the reasons are still valid for having an Electoral
College: to have independence from the
legislature, need to protect against tyranny and persons of uncouth character,
to ensure equitable regional power sharing, and to reflect the general will of
the governed. Thus, if the reasons for
its existence remain valid, before we remove the mechanism that may not be
working well to meet its intent, we need to have a replacement plan. To that end, I believe the above can get us
to that point, if even only as an interim step.
Abolishment of the mechanism will not suffice, as abolishment will fail
to protect against regionalism and certainly will remove any mechanism for
conscious adjudication of poor character.
Certainly, we can reconsider the Virginia and New Jersey plans and have
the Congress vote for the President and Vice President, as another way to make
a change. We would then need to say we
no longer seek to have an independent Presidency in relation to the legislature,
in that event. There is some reason to
consider this, even in my own mind, given that the legislature has ceded
exceptional amounts of power to the executive by its own willing action. Reconsidering and instituting Congressional
election of the Presidency may counterbalance that trend, although it would
certainly further entrench partisanship, which is also an ill we need to solve
in our republic. To that end, until we
have a replacement, and even absent my proposed changes, we should keep the
instrument until we do the hard work to find a replacement that serves our
republic and ourselves well beyond the current crisis. We should not and cannot expect less of
ourselves in this regard, than those citizen-delegates in Philadelphia did
themselves more than two centuries ago.
