Archive: Opinions

The Electoral College. No classes, no professors, no students. No tuition, no scholarships, no student loans. Not a place, but a compromise, an idea. And, overall, the most unloved institution in America. Except: by traditionalists, originalists, and perhaps the few remaining 'true conservatives' of the country. Conservatives these days are a ragtag bunch, conservative in name only for the most part, thinking that interfering in people's private lives is a 'conservative' value. Well, that's a topic for a future 'Thoughts'. This week we'll take on the Electoral College, 2.0. Turn to Article II of the Constitution, class.

As I wrote in the previous 'Thoughts', it is now the subject/topic to be brought before the Supreme Court in April, and decision to be announced in June as the Court closes its session.

It is a rarity in American history for the justices to take up an issue with the Electoral College. The 2000 presidential election swung on a Supreme Court decision, but that case was not, technically, questioning the function and validity of the Electoral College, nor how its electors are chosen.

In this case, Colorado replaced an elector who cast a vote for John Kasich and Washington state fined an elector who voted for Colin Powell. Ten electors reportedly voted for other than the popular vote winner in 2016, essentially acting in the manner originally prescribed in 1787, ratified in 1789, but more on that shortly. This case, essentially, is about whether an elector can vote for whom they please, not beholden to 'party' or 'faction'.

Word for word, in essence, the Constitution has not an awful lot to say on this matter. Ambiguity has given a lot of lawyers and observers of all shades plenty of grist and subsequent migraines over the years, but there are many, this writer and at least a couple of the current crop of Supreme jurists included, who think ambiguity one of the elements of genius and charm of this most 'sacred' of documents.

Here's the word for word passage in Article II, paragraph 2:

"Each state shall appoint, in such manner as the legislature [state] 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."

The next lengthy passage is how the vote is to be counted, where, and how the count translates into President and Vice President with provisions for a tie, etc. The only other mention of electors is that Congress 'may' determine the time of choosing the electors, and the "...day on which they shall give their votes, which day shall be the same throughout the United States."

That's it. And the wide-open spaces of those words have come to a lot of mischief over the years, mainly due to the one word mentioned frequently in the Federalist papers, abhorred by George Washington as well as Hamilton and Madison, most of the Founders and not referred to, even obliquely, in the Constitution itself: 'faction', or in modern parlance, 'party'.

What you're voting for on Election day (forgive me for stating what many know obvious, I think it important to lay out the whole case, even to the obvious) is not a presidential candidate, per se, but a slate of electors chosen by the 'party faithful' in each state who will, supposedly, then cast their Electoral College vote for their state's popular vote winner, but note that their vote, constitutionally, is not bound to the popular vote, but to their conscience, as it were. Clinton won New York's popular vote, so, in theory, but not de jure, the electors who are chosen by the winning Democratic party (which was not foreseen by the Constitutional Convention) are then supposed to cast their vote for Clinton and these sealed ballots are then shipped under lock and key to Congress in a formal ceremony (one of the first acts of a newly formed Congress after a presidential election) and certified. Of course, in this day of instant communication, the expected resulting numbers of electoral ballots are actually known late on election night or the next morning. Note, supposedly.

The fly in the ointment (well, there appear to be a flock of flies) is that the electors were supposed to be reliable and patriotic citizens of stature, not partisan or faction-minded, not in the pay of government, above the fray and had only the good of the people, the country in mind when they voted. The other fly was the ugly little word 'party' which means that the appointment of electors is given, now, to party faithful and 'faithless electors' who maintain that the Constitution didn't (and can't) tell them how to vote. This worked as long as Washington was around: elected unanimously to two terms as Chief Executive, he was seen as almost a godhead, and factions, though they existed, kept their mouths, for the most part, shut. It was upon Washington's retreat (again) to Mt. Vernon that the ugliness of 'faction' and 'party' reared its ugly head with the election of John Adams (no slouch when it came to being perpetrator and victim of partisan politics).

In the debates leading to the writing and ratification of the Constitution, the Electoral College was seen as a compromise, which was really the motivating factor in several of the contentions/considerations and decisions in Philadelphia. The debates themselves were in secret (to be released in writing later) to keep the media from stirring up a frenzy (ah, the more things change...the more they stay the same). The compromise of indirect voting for the Chief Executive, quoting loosely from Joseph Kett, professor emeritus of the University of Virginia, was considered to be a better alternative than selection by Congress (one option considered), selection by state legislatures, or popular vote. Remember, they were basically flying bind, here, with only Greek and other 'enlightened' experiments to guide them, and 'separation of powers' being a prerequisite to a truly republican form of government. The idea of a pure democracy was discarded in the debates as radical, and further dismembered in the Federalist papers in a very efficient and logical manner. Even an idea of representative and republican government was a radical idea rarely tried in history as far as they knew, but intrinsic to the whole battle they were still fighting.

Since the Electoral College was a non-entity except in a presidential election, the Founders thought it would have some defense ('inoculation', in their deliberations) against corruption by 'domestic factions' (that one turned out a little sourly, didn't it?) and foreign nations. France, Britain and Spain figure prominently in the Federalist papers and subsequent adventures, as entities licking their chops at our potential disunion.

According to many historians the concern was mainly that a simple popular vote would break up into many minor candidates, none with a real majority or even a good plurality, and this would generate chaos, mirroring their fear of the potential breakup of the Confederacy in 1787 into regional autocracies, the South, the Atlantic and New England. Yes, there was some talk of the fear of 'pure' democracy, as most of the Framers were distrustful of rampant popular opinion getting out of hand, but popular vote was already a given in the compromise of elected House of Representatives, where a good deal of the power (including power of the purse) rested. It was also recognized that 'pure' democracy could hardly work in such a large and potentially growing landmass of America, therefore representative government would make eminent sense.

All but two states (Maine and Nebraska, neither in the original thirteen states) have a 'winner-take-all' (again, not mentioned in the Constitution) rule for electoral votes, and after 1800 (a pretty controversial election in its own right) the plurality usually ensured electoral majorities for major candidates. Even in 1860, with four candidates, and Abraham Lincoln only winning 39% of the popular vote (true!!) an electoral majority was reached, though close. The exception was in 1824, which was an electoral tie, and John Quincy Adams was selected by the House of Representatives, to the anguished cries of "Foul!" by Andrew Jackson who claimed skulduggery by Quincy Adams and a promise to Henry Clay to be appointed Secretary of State to sway the House vote.

And, speaking of skulduggery, evidently there were a group of electors in 2016 who called themselves 'Hamilton Electors' who tried to get thirty seven other electors to vote for a Republican other than Trump, and apparently five electors 'pledged' to Clinton did not do so. These are all quoted in various reputable news sources. The Electoral College has always had its intrigue, 2016 not an exception, though now seems more treacherous, even considering Aaron Burr tying with Thomas Jefferson in the electoral process in 1800. How would that have played out historically with another outcome? The pending Supreme Court case may rank right up there with its far reaching implications, depending on how and how widely they decide.

Two more instances of 'faithless electors' who voted their consciences. In 1837, rogue electors from Virginia 'blocked' the election tally for Vice President, thus preventing his 'seating', because he had a 'mixed race' common-law wife. The Senate overrode this little bit of anti-Constitutional shenanigans.

In 2000 (besides the better known Florida debacle and 'hanging chad') an elector of Washington D.C. (they get three now, in a tip of the hat to non-representation status in the Constitution, another burr under the saddle of 'pseudo-democracy') refused to vote for Al Gore to protest their taxation without representation. I've not been able to find out who this 'faithless elector' actually voted for. "None of the Above", perhaps?

There's more, much more and the cries that the Electoral College is 'undemocratic' have a basis in fact, though the reality is that it wasn't meant to be 'democratic', for some very interesting reasons, other than a 'rabble'. I'll lay out those reasons for you in next week's "Thoughts" as the history lesson continues, the bizarre little factoids of the past presidential elections unfold. For this week, class dismissed, with an optional 'extra credit' assignment of reading the relevant Federalist papers. They're in your favorite library.