While you were focused on the coronavirus pandemic and its devastating impact on our society, other government functions continue as intended. Among those continuing to function, although for the first time in history they did so via video conferences, was the Supreme Court. A number of pending cases could produce profound precedents that could change the ways our government functions.
Among these are two cases involving the Electoral College and whether or not the individual Electors are obligated to vote for the Presidential and Vice Presidential candidates with the most popular votes in their respective states. The two cases stem from the 2016 election and are Chiafalo v. Washington [the state] and Colorado Department of State v. Baca. In both cases, Electors voted for candidates other than the one with the most popular votes in their state. In the Chiafalo case the Washington State Supreme Court ruled that under the Constitution the state has the power to enforce the state law that requires Electors to vote for their party’s candidate. In the Baca case, however, the The United States Court of Appeals for the 10th District (in Denver) over-ruled the state’s law requiring Electors to vote for their party’s candidate saying that under the Constitution, once an Elector is appointed, they are free to vote as they choose.
In all, in 2016 seven Electors voted for candidates that were not the one’s they were supposed to represent.
It is now up to the Supreme Court to decide which determination is correct, with profound implications for our future elections. The practices and traditions which have served us well for all these many years could be codified through the Court’s action or it could be thrown on its ear.
So what does this mean to us? Perhaps a little background is in order as the Electoral College (which is a process rather than a place — and is never mentioned in the Constitution) is often misunderstood by many of us.
The Founding Fathers did not trust the great American unwashed average citizen to make rational choices as to our elected officials. The House of Representatives was to be “The People’s House” where they could participate in governing, but the real power was in the Senate. Recall that Senators were not popularly elected until the passage of the Seventeenth Amendment which was ratified in 1913. Before that, State Legislatures elected each state’s Senators.
Likewise, the Founding Fathers did not trust a direct popular vote for president. Alexander Hamilton wrote in the Federalist Papers that the Electors would have the “information and discernment” to determine the best person for President. Under the original text of the Constitution, state legislatures selected the Electors and each Elector would cast two ballots for president. The candidate with the most votes (assuming it is a majority) would be President and the candidate with the second most votes would be Vice President. Then came the election of 1800 where Thomas Jefferson and Aaron Burr tied with 73 votes each. The decision then went to the House of Representatives where after 36 ballots (neither could garner a majority), Jefferson was voted in as President.
Following this near debacle, the Twelfth Amendment was ratified in 1804. This modified how Electors cast their ballots, separating the vote for President from that of Vice President. It did not designate how the Electors would be chosen.
Over time, most states decided that the Electoral votes from their state would go to the candidate with the most popular votes. (Maine and Nebraska have laws that divide the Electoral votes by Congressional district. It is thus possible that votes from those states could go to two candidates.) Twenty-six states and the District of Columbia (they gained Electoral votes under the Twenty-third Amendment in 1961) have laws that bind the Electors to vote the same as the popular vote.
In practice, when we vote we do not vote for the president. We vote for Electors who promise to vote for a particular candidate. Most Electors are party luminaries or workers in the same party as the candidate. Where laws do not govern the specifics of how a state’s Electors must vote, it is assumed that by pledging their loyalty to a particular party’s candidate, they will so vote.
Over time, “faithless Electors” — those that do not follow the popular vote — have not decided any election. However, there were at least five presidential elections where the winner would have been different if ten Electors had changed their vote. Likewise, there have been five elections where a president lost the popular vote but won the Electoral College vote (1824, 1876, 1888, 2000, and 2016).
Here is another fun fact about presidential elections. If the electoral vote is tied, the decision rests with the House for President and the Senate for Vice President. But here’s the rub. Each state votes as a block and each state counts as one vote. Thus the vote for President from the North Dakota delegation (with only one Representative) counts the same as the vote from California with 53 Representatives.
Clearly, our president is not, and never has been, decided by the popular vote in any way that would be comparable to our election for every other office in the land since 1913. Over the years there have been many attempts to do away with the current system and to have the voters directly decide on the President and Vice President. It would require an Act of Congress and ratification from the states to do so because it would be a change to the Constitution. The closest attempt to change it was the passage of a resolution in the House of Representatives in 1969 calling for a direct vote with a run off if no candidate received at least forty percent of the vote. The resolution failed to pass in the Senate.
The dilemma the Supreme Court faces is how to interpret the Constitution without upending two centuries of practice. Essentially, our country devised a new way of electing our presidents, different from the original ideas of the Founding Fathers, even if we keep the relics and traditions of that system. If the “originalists” on the Court decide that the Constitution intended for Electors to use their discretion and vote for whomever they want, the popular vote could become meaningless as there would be no obligation to vote for the winner in their respective states. They could vote for anyone, potentially throwing the system into chaos. If the Court decides that states can in fact determine how their Electors are chosen and that the Electors must vote as per the state’s law, then they run the risk of voiding what some consider to be the original intent of the Founding Fathers.
Given the ongoing destruction of long-standing norms, practices and ethical behavior that previously stood the test of time, it is imperative that the Court codify existing practice and give the states the power to best determine how their Electors will be allocated. Further, the Congress should again address the issues surrounding the use of Electors to determine our presidents. Even if one is in favor of the way we have come to interpret the value of the Electoral College (theoretically giving more states a chance to participate in the selection of our presidents) it is time to put into law how those Electors are chosen. To do otherwise invites disaster in either the near or long term. I have voiced my opinion in this space in previous postings that I believe we should do away with the anachronistic Electoral College and provide for direct popular votes for president.
Either way, we should not leave it up to chance. The forthcoming decision from the Supreme Court will have a direct impact on our future elections. Let’s hope that they get it right and keep the states in charge of enforcing votes from their Electors. The Congress must then follow up to instill a rigorous and uniform method for selecting Electors and their subsequent votes — either by putting our current system into law or by abolishing the Electoral College and providing for the direct election of President and Vice President. The future of our Republic demands it.
Much has been written and discussed lately concerning the Electoral College. Some argue that it is an anachronism that outlived its usefulness. Others argue that it is integral to the foundation of our republic and must stay in place. There are strong arguments on both sides of the issue and it seems that most people’s opinions are colored by whether they see our country as one nation, indivisible — as stated in the Pledge of Allegiance — or whether they see it as a collection of united states.
Although the discussions surrounding the Electoral College pop up every four years in conjunction with presidential elections , they are more noticeable this time around given that we have two presidents out of the last three (George W. Bush and Donald J. Trump) that lost the popular vote but won in the Electoral College. There are only three other times in our entire history where this happened. John Quincy Adams became president in 1824 through a vote in the House of Representatives. Although Andrew Jackson won more Electoral College votes, he did not win enough to get a majority as required under the Twelfth Amendment (more on that later) and the House elected Mr. Adams. In 1876 Rutherford B. Hayes became our president despite having lost the popular vote and the Electoral College vote — until 20 disputed electoral votes were changed under a compromise between Republicans and Democrats and awarded to Mr. Hayes. This despite the fact the his opponent Samuel J. Tilden not only had more popular votes, but had a majority of the vote (just over 50%). And we think our current election was contentious. The only other time that the Electoral College victory came despite losing the popular vote was in 1888 when Benjamin Harrison defeated the incumbent president Grover Cleveland by campaigning to keep trade tariffs high to protect American jobs. Some things don’t change.
For the next 124 years there were no instances of a candidate losing the popular vote but still winning the Electoral College vote. And now in the first sixteen years of the 21st century it happened twice. Thus the argument over whether it is still a valid way to elect our presidents.
To fully understand the issue, a quick history of the reasons for the Electoral College are in order. Briefly stated, it was established because our esteemed Founding Fathers did not want the citizens of the new United States to elect the president. Remember that their ideal for “life, liberty and the pursuit of happiness” was really meant for white wealthy males. The pursuit of happiness meant property, and wealth meant education. The masses were considered unfit and untrustworthy to elect the “real” leaders of the nation. Thus the president was elected by the Electoral College and United States Senators were elected by the legislatures of each state. The House of Representatives was the “people’s house” — the safety valve for allowing the average citizen to participate. Note that Senators are elected for six years (designed to provide stability and experience) and the House is elected every two years, making it easily changeable.
Article II, Section 1, Clause 3 of the Constitution created the Electoral College as the means to elect the President and the Vice President. In practice it did not work out so well and the procedure was modified through the Twelfth Amendment when it was ratified in 1804. All subsequent elections have been carried out under that amendment. Clearly a precedent was set that if our method of electing the president is not efficient or effective, then it can be changed.
Article I, Section 3 of the Constitution was replaced by the Seventeenth Amendment when it was ratified in 1913 and provided for the direct election of Senators, vice having them elected by state legislatures. This is another precedent that our voting procedures can change with the times.
Both of these changes are relevant to the arguments for and against the continued use of the Electoral College. The arguments are cogent on both sides of the issue, although passions sometimes run rampant rather than logic or historical facts.
Some of the arguments for eliminating the Electoral College, or to significantly change the way that it works, include the following.
- Our presidential election process is not democratic. It is the only national office where “one person, one vote” does not apply. As has happened, the voice of the people can be muted or eliminated by the electors choosing someone who did not win the popular vote.
- Originally Senators were picked in a manner very similar to the Electoral College voters. That process was changed with an amendment to the Constitution to allow direct voting. If that can change because the original purpose for state legislators to vote for Senators changed, then that same argument for the purpose of the Electoral College is no longer relevant. We now have an educated citizenry with easy access to communications and an understanding of the issues.
- The Electoral College was meant to be a check on the whims of the citizens. Most states now require the electoral voters to match the results of the popular vote in their state, thus the original purpose of the college is no longer followed.
- Too much power is invested in smaller states relative to their population. For example, one electoral vote in Wyoming equals 142,741 people whereas in New York one electoral vote equals 519,075 people. One can argue that this is patently unfair to all voters, and gives disproportionate power to states with small populations.
- The House of Representatives could elect the next president and in doing so totally ignore the wishes of the electorate. This would happen if the Electoral College vote ends in a tie, a mathematical possibility unrelated to the national popular vote results. The vote in the House is by state — one state, one vote — thus giving Rhode Island the exact same say in choosing a president as Texas.
- It solidifies a two-party system and precludes the possibility of other candidates making a meaningful run for president.
- A president may punish a state that voted for his/her opponent even though many citizens of that state voted for the winner.
- Presidential candidates ignore states that are safely in their camp or that they believe will not vote in their favor. They end up not visiting large states (no serious campaigning by either candidate in New York, California, Texas for example) and small states (no serious campaigning in North Dakota, South Dakota, Wyoming for example). They only campaign in a handful (about ten) of swing states.
Some of the arguments for keeping the Electoral College as it is include the following.
- The Electoral College protects states rights. Small states would lose their voice in presidential elections in favor of states with large populations. Candidates would only focus on states such as New York, California, Texas and Florida.
- The two-party system is preserved. Such a political system is proven to be the best form for governing in the United States through competing political parties and their ideas . If the Electoral College is eliminated in favor of directly voting for candidates, multiple candidates could conceivably run and splinter the popular vote. This could allow a candidate with only 20 or 30% of the vote to win.
- The Electoral College embodies our nation’s principle of federalism and eliminating it could be the first step in dismantling that system of governing.
- Only the “coastal elites” in large cities would get presidential attention.
- No one should mess with what the Founding Fathers created. They knew what they were doing.
- To change or abolish the Electoral College would require a Constitutional Amendment. This process may open the door to other changes to our Constitution.
- A victory in the Electoral College gives the president the legal authority to govern all of the states and all of the population.
To me, the strongest argument for changing or eliminating the system is that states with small populations have a disproportionate impact on the election. The strongest argument for keeping our current process is to prevent a candidate from winning in a race with multiple candidates and garnishing only a small percentage of the popular vote.
Additionally, given the current political climate in our nation, any attempt now to change the Constitution would probably open a Pandora’s Box of other issues that could fundamentally change our Constitution and thus our way of life.
Although it goes against my preference, I reluctantly conclude that keeping the Electoral College is, at least for now, the best thing for our country.
And no, the Electoral College does not have a football team. And that’s too bad.