In March last year I scripted a post in response to the ongoing chatter about the Electoral College (EC) and movements to remove it or to defend it without modification (http://backusec.blogspot.com/2019/03/an-apologia-for-electoral-college.html). Yesterday, a case that I have been following, was putting the question of the rights of an elector of said EC, to vote their consciousness over and against State prohibitions otherwise, to the test, was decided. In an increasingly rare unanimous decision, the Supreme Court of the United States (SCOTUS) declared State “faithless elector” laws were constitutional. Brian Farnell, a good friend and political sparing partner, posted publicly on Facebook this article with the following opening comments:
Brian writes:
“Though far from the biggest flaw in our sociopolitical system, this ruling should be the final nail in the coffin of the anachronistic Electoral College.
The purpose of the Electoral College was for the people to select the elites and for those elites to use their independent judgment to select the president.
It was very clear from Federalist 68 that the the Framers of the Constitution expected electors to take the desire of the unwashed masses as a mere suggestion and to ultimately anoint the best person for the job.
The Electoral College process, wrote Hamilton, "affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications."
Look at the intruder in the White House and ask how that worked out.
Basically, the purpose of the Electoral College was for the elites to overrule the plurality and prevent a scoundrel like Trump. Instead, the elites overruled the plurality to impose a scoundrel like Trump. The institution did the opposite of what we were promised.
The Supreme Court essentially ruled that the Electoral College cannot function as outlined in Federalist 68.
The big flaw is that the Constitution itself did not in any way impose any requirements on how the states allocated their electoral votes. Federalist 68 was the rationale but there was nothing in the Constitution to actually ensure that it was implemented as intended. Thus the SCOTUS' decision was fairly uncontroversial, as suggested by its rare unanimous ruling.
So even if one accepts the rationale of the Electoral College as valid, it's self-evident that it cannot possibly function as that rationale intended. Yet another reason to get rid of this relic so outmoded that no other executive in the country or the world is selected in this fashion.”
Brian’s tone in the above notwithstanding, he makes his point from a strongly held belief. From an earlier exchange, as we continue to tease out our positions politically (which I really do appreciate, as it helps us both, I think, to hone our positions better), where we differ is on the matter of the relative weight of popular will in making determinations in our republic. I tend towards a more Hamiltonian perspective in that I believe in popular consent more strongly that popular will. I believe that Brian feels the opposite. For that reason, the EC is a flashpoint in our running debate on our political system. To that end, I replied to his comments above, which I am posting here as a continuation of my earlier post on the Electoral College and it’s need for saving as a mechanism but also it’s need for reforms to ensure it works properly.
My reply:
“First, let me just say I’m disappointed with this decision as well. That said, the majority opinion is based on sound reasoning, and for once I have to give Thomas some credit for the use of the Tenth amendment. As you know, I think that the rationale for the Electoral College (EC) is valid, it’s just been contorted by the several States through said faithless elector laws. What the SCOTUS is saying here is that unless they are prohibited from doing such constitutionally, there isn’t a legal basis to overturn faithless elector laws by the States. I greatly discount Kavanaugh’s and Alito’s assertions of chaos reigning in moments of indecision, as it would get thrown to the House which would solve the issue, but I’m not going to argue about that here.
Two points of argument then, for me remain. 1) You assert that no executive is selected by indirect election. This is patently false. Westminster Systems pick the Prime Minister, who is head of government, via indirect election. The EC is indeed a unique indirect election mechanism, but it isn’t unprecedented nor unusual. 2) The failure of the mechanism by virtue of State level interference contrary to Federalist 68, resulting in the unpopular elections of George W Bush (lesser of a case) and Donald J Trump (the most egregious case), does not mean we should eject the mechanism. The reasoning behind Federalist 68 remains sound (and therefore a mechanism like the EC is not “anachronistic”, but critical) and we should take such actions to ensure that Hamilton’s assertion can be followed in law as well as practice.
To that end, there is a constitutional remedy, the amendment process. For instance as I indicated in my post of last March, ‘I would propose a series of ... amendments ..., 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.’
The present Interstate Compact, as alluded to in the article, has its flaws in two ways. One, as the article indicates, it would require testing in courts as well as other challenges, as it is an extra-constitutional measure. Now, it does have the virtue of meeting the letter of the law/ruling, in so much as States have made this compact and thus are entitled to put it into effect as the SCOTUS has made it clear the management of the electors is entirely a State matter as it regards the constitution. That said, the second flaw, to me, is it does not provide the intent of Federalist 68 to have a protection against illiberal populism nor does it account for alignment with state level plebiscite determinations which was inherent in the design of the selection of President. By virtue of the working New Jersey and Virginia plans, the default voting by states in the House should the EC be ineffective, and the inherent language of the EC itself leaving the selection to electors at the State level. Thus the current compact would potentially cause a State to force its electors to vote against the express will of the voters within that State in order to conform to the national popular vote winner. This is another version of the same anti-Federalist 68 flaw that is inhibiting electors from executing their conscious choice, which ought to be remedied not reinforced in another direction. Ergo, the current interstate compact isn’t the right answer.
So, given the decision, the answer is a need for an amendment. What the article indicates is that there is such strong polarization that such an amendment (either in line with my suggestion or in line with the interstate popular vote compact) is unlikely to move forward. I’d offer that post November 2020, we will have to see. If Trumpism and Senate Republicans are trounced resoundingly, and the Dems are able to not shoot themselves in the foot by over-reach, then I’d say that the 2022 midterm election might aid in saying that it’s possible if there were a champion(s) of pragmatic reform that is in the House and the leadership had he wisdom to take action on a series of amendments, including on this issue. I’d say mine is a better pragmatic answer that might even be seen as a compromise in the face of he advocacy of a national popular vote amendment, but we’ll have to see. The point being, that this ruling is hardly the nail in the coffin for the Electoral College. Rather it is likely to make its modification via constitutional amendment the best remedy to the problem seen in so acutely in 2016 (as well as the three prior situations).”
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