Saturday, October 29, 2016

Electoral College Could Save Americans From Terrible Choices for President

Much of the discussion of the Electoral College this election cycle has to do with what happens if a candidate for President falls short of 270 electoral votes.  Should that happen, our constitution provides that the U.S. House of Representatives will elect the President with each state delegation casting one vote.  The top three finishers are eligible for consideration.  Meanwhile the U.S. Senate (assuming the VP candidates also fall short of 270) pick the winner among the top two candidates.

So the only candidates who could be elected President at this point are Trump, Clinton or a third party/independent candidate assuming that person received some electoral votes?    If you answer
Alexander Hamilton
"yes," you'd be wrong.

When we cast a ballot, we're not actually voting directly for President.  We are voting for a slate of electors who has pledged to vote for a particular candidate. The number of electors people in each state elect is equal to the number of (federal) representatives and senators that state has.  In most states, the candidate who wins the popular vote statewide, gets their entire slate elected, i.e. they are electors for that state.  In December, the elected electors gather in the capitol in all 50 states and cast their vote for President.

I get a kick out of those people (mostly conservatives) who argue that the Electoral College is operating today exactly as the Founding Fathers intended.  That could not be further from the truth. The Electoral College was expressly designed to be a deliberative body made up smart men (no women electors back then) who could better judge than the average person the qualities that a President needs. In Federalist Paper #68, Alexander Hamilton explained the reason for including the Electoral College in the Constitution:
It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture. 
 It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. 
 It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. 
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention....
As a side note, that last paragraph in which Hamilton argues that the Electoral College will protect against a foreign powers getting involved in an American election to get one of their supporters elected President seems eerily applicable this year.

The Electoral College, has never in fact operated as the deliberative body that Hamilton and other Founding Fathers intended. It quickly became a rubber stamp of each state's popular vote.  In fact, 26 states have adopted laws that purport to prohibit electors from making picking someone other than that state's winner of the popular vote.  (This is the so-called "faithless elector.")   I say "purport" because I highly doubt that such laws would survive a constitutional challenge. They appear to be an attempt by states to alter a constitutional provision and would likely suffer the same fate - a declaration of unconstitutionality - as state laws that attempt to impose term limits on their members of Congress.

If there was ever a need for a deliberative Electoral College, and a choice of someone other than the two major parties' nominee, it is this year. The Republican nominee has proven time and time again that he is imminently unqualified and lacking the temperament to be President. Meanwhile the always ethically-challenged Democrat nominee is the subject of a criminal probe and may be under indictment in a few months.  The Republicans and Democrats had so many better candidates. But the public chose poorly in the primary stage and as a result these are the voters' only two choices realistically having a chance of winning.   But while we voters are stuck with Trump or Clinton, are those the only choices the electors have?  The Founding Fathers would resoundingly say "no."

Hamilton in Federalist Paper #68 offers a closing pitch for a deliberative Electoral College, words that seem to make a strong case for electors rescuing the nation from the awful inevitability that Trump or Clinton will be President on January 20, 2017:
The process of election (that Electors and not the people choose) 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. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.... .  

1 comment:

Anonymous said...

Paul -

Something that is commonly left out of historical texts is some of the first drafts of the US Constitution. I picked up a book at B&N a while back that included Federalist Papers, D of I, Articles of Confederation, and the Constitution along with some interesting rough drafts. I now wish I plunked down the $50 to buy that book.

The early drafts of the Constitution basically mimicked the only government format they knew at the time - British Parliament. People elected the Commons, the Crown appointed the Lords, and the Commons picked the PM. So at Philadelphia in 1787 the first draft has our House of Representatives elected by the people, the Senate would be elected by the States, and the chief executive would be elected by the House. The State Legislatures dominated politics at that time because of the powers granted by the AoC and the States didn't like the idea of an executive who did not answer to them. In another draft, the State legislatures would elect the Senate and the chief executive. That did not set well with those delegates who wanted more diverse distribution of power so a compromise of the Electoral College was devised as a first vote, and the House would be a second vote if the Electoral College failed to elect a chief executive by 50%+1 delegate votes. Thinking between the lines I would say the early politicos thought between the Congressional delegations and State Legislative bodies they would serve as delegates to the Electoral College anyway so this was their way of including Congress and Legislatures in the Presidential election process and when the Electoral College would inevitably deadlock then Congress gets to pick the President.

Little did they know our electoral system would become a rigid two party system, from Federalist/Anti-Federalist to Whig/D-R's in the early 1800's then by the mid-1800's the modern day R/D pairing and the Electoral College only twice failed to elected the President on a majority vote (1800 and 1824).