The Electoral College: Its Hour Come Round at Last?

It’s enormously unlikely that the current Russian hacker flap is going to stop Donald Trump from being inaugurated, but if he is stopped, it’s my understanding it can only happen in the Electoral College. So let’s take a look.

Why Is There an Electoral College? The Founders were opposed to electing presidents by popular national vote, mostly because they figured each state would just vote for its own “favorite son.” They considered having presidents chosen by Congress or by state legislatures. They finally settled on Electors, however, who were supposed to be really smart guys who would choose a president based purely on merit, and without consideration of partisan politics.

The best sense of what the Founders were thinking might be gleaned from Alexander Hamilton’s Federalist #68, in which he expounds in his overwritten way that

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.

Hamilton goes on to explain that each state would somehow choose a committee of electors who would convene only once, for one purpose only, and that is to choose a president. In this way this crew would be less subject to being bribed or being under the influence of foreign powers.

The Constitution didn’t specify how the states chose their Electors. I understand that, at first, most of the time they were chosen by state legislatures.

How Was the Electoral College Supposed to Function? In the original wording in the Constitution, Electors were to vote for two people, at least one of whom was not from his state. Then as now, the Electors don’t meet in one place, but within their own states, to vote. The votes were sent in a sealed envelope to the President of the Senate (who would be the sitting Vice President). The votes were to be counted in front of the Senate and House of Representatives. In brief, whoever got the most votes was POTUS and whoever came in second was VPOTUS.

Well, that didn’t last long.  The 12th Amendment, ratified in 1804, provides that Electors vote separately for a president and a vice president. It also provides that if no one candidate receives a majority of all votes (currently the magic 270 number), the House of Representatives chooses the POTUS from among the top three contenders, and the Senate chooses the VPOTUS.

Other than the original provision of voting for one person not from their states, the Constitution places no restrictions on the Electors about whom they can vote for, other than the qualification requirements:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

One little archaic constitutional vestige I did not know — to this day, an Elector cannot vote for a president and vice presidential candidate from his own state. One candidate is okay, but not both. So if both the presidential and vice presidential candidates were from Pennsylvania, for example, the Pennsylvania Electors would have to abstain.

And that’s where the U.S. Constitution stands on the matter of the Electors and choosing a president.

The Electoral College Today. Today,  of course, people vote for presidential candidates, and then Electors go through the motions of choosing the POTUS as outlined in the 12th Amendment. That way of doing things evolved pretty quickly in the 19th century, rendering the Electoral College vote into a meaningless, archaic ritual. Lots of amendments have been proposed to get rid of the Electoral College. Obviously, none have gotten very far.

The Electors are chosen by the parties, usually in state party conventions. Some are chosen by state party central committees. A handful of states use other methods — they are appointed by the governor, for example, or even appointed by the presidential nominee him- or herself. The point is that they are people chosen not for their wisdom, but for their loyalty to the party.

There are two aspects of today’s Electoral College that are problematic.

One is the “winner take all” method of choosing Electors that all but two states have adopted. This is not in the Constitution at all, and it’s this factor that makes it mathematically possible for one candidate to have a respectable popular vote majority and still lose the Electoral College. If the Electors were chosen in a proportional way, that’s much less likely to happen. Lawrence Lessig has been arguing that the “winner take all” thing is unconstitutional. However, his argument is based on the Court’s “reasoning” in Bush v. Gore, and there are those who don’t buy it.

Still, while we may be stuck with the Electoral College itself — the less populated states like it, because it gives them a disproportional voice in presidential elections — if someday the winner-take-all practice could be done away with, the Electoral College would more accurately reflect the popular vote.

The other “new” aspect is the binding of the Elector’s votes. Twenty-nine states have made it a felony for an Elector to go rogue and not vote according to his state’s vote. In practice, such “faithless” Electors are very rare and are usually only given a small fine, but they could be penalized more harshly.

Over the years, many constitutional scholars have said that the state “binding” laws are blatantly unconstitutional, and that the Electors must be free to vote as they choose. It was clearly the intent of the guys who wrote the Constitution for the Electors, not the people by popular vote, to choose the president. And while we may think that’s stupid, it hasn’t been amended. The Constitution still says that.

And it was also the clear intent of the guys who wrote the Constitution for the Electoral College to be a bulwark against “cabal, intrigue, and corruption,” as Hamilton put it:

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?

This is the very corruption that the Electoral College is supposed to prevent. The masses of the people may be swayed by passions fired up by demagogues, but the wise and level-headed Electors are supposed to be the ones who make the final decision. Or that’s how the Founding Guys imagined it would work, anyway.

If there was ever a time for the Electors to carry out their Constitutional duties and make their own choice for POTUS, this would be it. And if they don’t, then the Electoral College really has utterly failed in the duty it was given.

Blocking Trump wouldn’t necessarily give the election to Hillary Clinton, since the Electors can vote for anybody. If enough of them voted in a way that denied the majority to Donald Trump — say, by choosing Gary Johnson –  the election would go to the House. The House must choose among the three top vote getters. And since we’re talking about the House, that wouldn’t be Clinton. But maybe it wouldn’t be Trump, either.

(For an interesting take on what a mess that could turn out to be, see “Deadlock: What Happens If Nobody Wins” by Laurence H. Tribe and Thomas M. Rollins, from the October 1980 Atlantic.)

I’m hearing a lot of talk on social media that maybe a court could void the election. Courts have voided Senate elections a couple of times, apparently. But I don’t think any court would touch this mess with a thousand-foot pole, especially since the Constitution provides for the Electors or the House to make the final decision in the case of presidents. (And there is no provision whatsoever for re-doing an election, for any reason, which is another rumor I saw somewhere. )

The Electoral College vote is scheduled for Monday, December 19. Chances are Trump will at least get his 270 votes and be inaugurated. But we can dream …