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.