An Apologia for the Electoral College

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 12^th and 20^th 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.