Archive: Opinions

Let's go back to a column I wrote a couple of months ago. It was before the pandemic upended our world, and what I'd like to discuss today was actually postponed by the lockdown. The historic arguments have been presented, though not yet resolved.

The issue is called 'faithless electors' and the essence is this: The Constitution provided for a non-democratic voting process for selecting the president called the Electoral College. Alexander Hamilton described it in this succinct manner in Federalist Paper Number 68: "Election of the president should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation."

In other words, as it turns out, you are not voting directly for the president, but only for a select group of people who will meet as a separate body and are supposed to be eminently qualified to "choose a chief executive". These electors, in a perfect world, would have such luminaries as George Washington, John Adams, Thomas Jefferson, and their like to choose from and lead the country. It was assumed, again in a perfect world (perhaps 1787 and the recent memory of a glorious war for independence gave the Founders some deserved optimism), that righteousness and virtue would always win out over faction and party.

Well, that optimism didn't last long. As many of the other compromises that glued our Constitution together reacted to the stress of differences of opinion, the Electoral College became unglued in 1800 when the electors tied between Thomas Jefferson and Aaron Burr, denying a second term to Adams, and it went to the House of Representatives, the body that was intended to be democratic and remains so to this day.

The fabric's tensile strength was already deemed tested when Washington declined a third term and the selectmen of the Electoral College had to choose his successor. A Federalist, already a party stalwart, spoke: "Do I chuse Samuel Miles (an elector) to determine for me whether John Adams or Thomas Jefferson shall be president? No! I chuse him to act, not to think!"

In other words, the popular election of the chief executive vs. allowing semi-anonymous electors (no doubt even then party hacks, not necessarily in office) became an issue. And, there have been elections where the Electoral College 'decision' was opposite that of the popular vote due to the distribution of electors, which balances large and small states with a skew to the less populated. The latest upending of the popular vote was, as you know, 2016. But there are previous examples, accompanied by unsurprising skulduggery, in vote counting. When the votes went to the House in the nineteenth century, backroom deals abounded. Perhaps this is where American conspiracy theory became a cottage industry.

In any case, now come two cases to the Supreme Court, which the opposing lawyers presented by virtual argumentation. The cases heard last week were 'Colorado Department of State v. Baca' and 'Chiafolo v. Washington'. The first entails a 'faithless elector', who instead of voting for Hillary Clinton, who won Colorado's popular vote, voted for John Kasich. The elector was replaced by one who followed state law, which requires an elector to vote for Clinton. The latter case involves four electors who were fined one-thousand dollars apiece for voting for someone other than Clinton.

Ostensibly, theirs was an effort to deny Trump electoral majority, as 'dark horse votes' failed to gain traction in 2016. There were, total, three votes for Colin Powell, one for Kasich, one for Ron Paul, one for Bernie Sanders, and one for Faith Spotted Eagle. These long shots totaled an actual ten electoral votes, but Colorado and Minnesota each removed a 'faithless elector' and Maine disallowed another 'faithless' vote.

Fact: thirty-two of our states legally bind presidential electors, and this is the crux of the case. Fifteen of these states punish 'faithless electors' with fines, suppression, or removal.

Fact: electors are party 'faithful' who are rewarded for loyalty and cannot be members of Congress. They are basically unknown and were originally viewed to be constitutional buffers between the voting masses and the elite office of the presidency.

Although we bandy about the word "democracy", and advocates of the abolition of the Electoral College claim that democratic process should be the determinant of that high office, the Founders were extremely skittish about that word. In fact, we are not and never were a democracy. We are a representative republic or, if you don't mind the phrase that communists use (falsely), we are a democratic republic. The Founders intended us to vote only for the House of Representatives, thus giving us a direct vote on much legislation, including money matters. The Senate was a good ol' boys club, appointed by state legislature until the Seventeenth Amendment was approved just prior to 1920.

There was deep division among the members of the Constitutional Convention regarding the election of the chief executive. Those disagreements are reflected in the Constitution, which very loosely defines how the 'College' works and has no directions on how to choose electors, much less bind electors to popular vote decision. It appears, at least to one faction arguing this past week, that electors have an absolute right to vote for the person they feel is most qualified to lead this huge, stumbling democratic republic.
The 'faithless electors', even though they denied their votes to Clinton, had the express intention to deny an electoral majority to Trump, and thus throw the decision to the House of Representatives for the first time in the twentieth or twenty-first century.

The arguments? The electors' side, and those who wish to abolish the College, argue that the Founders intended the College to be independent, or else it wouldn't have been created in the first place. In the other corner are the states of Colorado, Washington, and curiously, the Republican National Committee (filing an amicus brief) stating that these lawsuits are meant to "sow chaos in the Electoral College".

Chaos? Anyone remember the Florida electoral debacle in 2000, where every vote (and every chad) was counted and recounted? Who remembers the accusations made against Kennedy's Chicago machine in 1960, run by Richard J. Daley, that claimed he stole the election with rigged Chicago votes? And are you aware of how many presidential elections have been decided by less than two percent of the popular vote? In particular, 1968 and 1976. The possibility or probability of fraud is rampant, and that's not a Trumpian accusation. When parties and factions are involved, leading America by the nose since 1796, anyone and everyone is suspect, and there lies the rub.

It's not the fraud or the skulduggery, or even high-falutin' lawyers battling it out by phone with nine justices who are technically not prone to faction or party. It's the system and the dwindling faith in its efficacy and credibility that's at stake.

We lost faith in the system a long time ago (predating Baby Boomers, I daresay), and now we have come to a Gordian knot of a constitutional issue: should the Electoral College continue to act as a buffer between the voting public and the election of the highest officer? Does popular vote actually reflect what Hamilton called "analyzing the quality adapted to the station, and acting under the circumstances favorable to deliberation", the most qualified man or woman to lead the free world?

I'm what is called an 'originalist', although I do waffle somewhat when confronted by the concept of 'living document' regarding our Constitution, which many of us consider sacred. But the Founders also recognized, I believe, that times and circumstances will and must change, and some of their decidedly ambiguous articles and directives were meant to purposely allow future generations (and, soon after its inception, the Supreme Court) to apply constitutional law to current conditions. That is, as long as it was remembered, that the constitutional purpose was to "form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the General Welfare, and secure the blessings of liberty for ourselves and our posterity".

Those nine justices looking at this conundrum of the Electoral College will certainly be keeping the above in mind. Both 'parties' have excellent arguments, and the decision to be made in June could be viewed as disaster or salvation for the union and the future of the republic. Neither side will be happy. The Constitution will either remain unchanged, or the election of the president could become anyone's guess, up for the highest bidder and decided by chance, advertising, men in back rooms, or according to some, by the people.

It didn't get a lot of publicity, but a lot is riding on this decision. If there is to be a history written at all about twenty-first century America, this decision may be the keystone.

Take care of each other. Thanks for listening.